*1 ORDER Court County the York 29,1992, the order of NOW, May 90-SU-01865-08, 1991, 28, at No Pleas, dated June Common is affirmed.
v. Pennsylvania, OF PUB DEPARTMENT COMMONWEALTH (WOOD WELFARE, HEALTH MENTAL OF OFFICE LIC HOSPITAL), Ambulance Servic and Schleifer’s STATE VILLE Harika, M.D., Appellees. es and J.P. Pennsylvania. Court
Commonwealth 4, Argued Feb. 1992. May 1992.
Decided July 1992. Reargument Denied municipality to include discussing Act 170 allows a whether in dicta charges review fee. legal in its *3 Cordes, appellant. for J. Samuel Schwartz, Ambulance appellee, Joy Esther Services. SILVESTRI, SMITH, JJ., Senior COLINS,
Before Judge.
SMITH, Judge. A. Morrison from a order of the
Shirley appeals post-trial Allegheny County granting Pleas of Schleif Court Common (Ambulance Service) a new trial. er’s Ambulance Services appeal raised in this is whether the trial court erred issue pertaining a trial because evidence to the granting new immediately passenger crew after a conduct of the ambulance improp and fell to his death was escaped from the ambulance reasons, into For the erly following admitted evidence. trial court is reversed.1
I husband, July George On Mrs. Morrison’s Morri son, from a being transported Ambulance Service Rankin, Pennsylvania station to Woodville State police (Woodville), hospital operated by the Common Hospital Welfare, Pennsylvania, Department of Public Office wealth (OMH). Health Mr. Morrison was a mental health of Mental and was on a brief visit home when he patient at Woodville Mudd, to hallucinate and became violent. Officer began Police, Mr. Morrison from his home transported local Chief of arranged and OMH for Ambulance police to the station Ser him from the transport police vice to station Woodville. Bridge the Fort Pitt traversing While the ambulance was River, forced his crossing Monongahela way Mr. Morrison ambulance, ran a short distance and fell over the out of the Mrs. bridge wrong side of the to his death. Morrison filed Harika, OMH, M.D.2 against ful death and survivor action J.P. *4 alia, alleging, inter that Ambulance and Ambulance Service negligent by failing was to assess Mr. Morrison’s Service condition; restrain, him; allowing control and watch failing ambulance; failing him to the and to remain at the escape squad. to assist the rescue scene Superior initially appeal filed this in the Court which 1. Mrs. Morrison granted Ambulance Service's motion to transfer the case to this Court by September 1991. order dated prior settled with OMH and Dr. Harika to trial and 2. Mrs. Morrison joint executed a tort-feasor release. trial, motion in limine to Service filed a Prior to Ambulance crew the fact that the ambulance regarding evidence preclude fell the after Mr. Morrison from the scene the accident left since the ambu- reasoned that bridge. Ambulance Service to assist Mr. from their crew was unable Morrison lance their after regarding the evidence actions bridge, on position any prejudice outweighs and that such prejudicial the fall is value; there is no evidence that Mr. and since probative have the could been rescued or survived Morrison have would fall, is Mrs. Morrison the contested evidence irrelevant. and relevant that the evidence admissible because asserted training of proper of the ambulance crew’s lack probative it is activity; probative and its value is continuing negligent substantially outweighed any prejudice Ambulance Ambulance case. The trial denied Service’s Service’s in limine. motion trial, Schleifer, crew J.
At ambulance and Theodore Service, testified. Bernard J. Jozwiak owner of Ambulance that the of his in mental training transporting testified extent like patients his boss’ advice to treat the patients health was courses, any had not attended classes or beings, human and he Further, he seminars. the back the ambu- training into with Mr. when he climbed the front lance Morrison passen- seat the door passenger escaped through side; through passenger he followed Mr. Morrison ger him; and ran and after Mr. Morrison leaned over door after fell, to a telephone the rail and the ambulance crew drove they called 911 and Mr. Schleifer who instructed them where they to the with to return base where discussed incident Fritzius, driver, John added that he had Mr. Schleifer. C. (EMT) emergency training community college medical course; and pass they but did not after returned to transported patient he and Mr. another before base Jozwiak with J. police station Mr. Schleifer. Theodore going knew his EMT training testified that he accompany law an required patient state attendant ambulance; that he only training the back of his with employees regarding transporting people provided *5 mental disorders was Ms instruction that attendants treat patients beings. mental like human Both parties presented expert witnesses who testified re- garding local and national standards of care specifically and addressed the an degree traimng ambulance crew should have; how an ambulance crew should assess a patient’s condi- tion; what restraints a trained ambulance crew would use transporting patient; when a mental and how a trained or reasonable ambulance crew would have reacted to an escape such as tMs one. Mrs. Morrison’s experts opined it would not have been possible Mr. Morrison to have did; in the escaped fasMon that Ambulance Service claims he presented that a trained ambulance crew with tMs situa- tion would have left one member of the crew behind while the other sought assistance. Ambulance Service’s expert opined although common sense should have told the ambulance fall, to stay crew around after the not a leaving was breach of Further, duty. their presented Ambulance Service the video tape deposition testimony of a doctor who testified that the primary cause of Mr. Morrison’s death was a forceful blow to the head which knocked him unconscious and that he drowned.
Mrs. Morrison also presented testimony of two fact witnesses to challenge credibility of Ambulance Service’s An witnesses. electrician working who was on a temporary dock below the Fort Pitt Bridge testified that after he heard object an edge water, strike the of the dock and fall into the he looked to the up bridge looking and saw two men over the side and an ambulance with all of the open, including doors A back door. nurse at Woodville testified that she received a telephone call from an excited upset male who identified Mmself as an ambulance driver and told her that on way Woodville, George jumped Morrison out of the back of the ambulance, bolted to the railing, jumped over the railing Mt the dock. evidence,
After the close of the trial court instructed the jury that its verdict should be based the evidence and application legal emotions, not on principles, and that the mere happemng of unfortunate event which results right compen- to the automatically give rise death does with the event. has some connection party from a who sation *6 on proof that burden is court further instructed the The Service; of Ambulance liability Morrison to establish Mrs. died from the blow determines that Mr. Morrison jury if the remain, head, to failure then the ambulance crew’s death; to do with his wrong, anything or not have right did itself out to the service which holds and that an ambulance is called who wishes to use service accept anybody to public highest degree hire and is to the a common carrier for held care. assessing for jury a verdict Mrs. Morrison returned Service, Ambulance attributable to negligence
causal at 75% OMH, Mr. no attributable to negligence 25% attributable to Morrison, $450,000 damages. in Ambulance and awarded court post-trial granted filed motions and the trial Service it that it Ambulance Service a new trial because determined ambulance crew’s testimony regarding erred in permitting in The trial court actions the scene the accident. leaving as cold represented that the actions were and callous reasoned to should not have been admitted since indifference life and already when the ambulance probably Mr. Morrison was dead therefore, and, actions crew left the scene of the accident did not contribute to his death.3
II
grant
a new
power
The trial court has the inherent
Cromwell,
(1969).
613,
Kralik v.
435
Ambulance Service’s first because the decision for review before this Court is not the evidence, but rather whether discretionary ruling exclude gave granting the reason the trial court new trial was *7 Second, certify not itself an error of law. the trial need it a new trial was the sole and granted or state the reason reason; contrariwise, all that is is that the required exclusive either certificate of the trial court “clearly appears, reason motion____” Byers, v. in opinion or its on the new Keefer (1960). 447, 449, 477, Accordingly, 398 Pa. 159 A.2d 478 case, whether, is negligence issue here is a evidence which need also be prove duty probative offered to breach a causation to be relevant and therefore admissible. Pennsylvania provide
The rules of evidence
it
relevant
to a fact
to
sought
evidence is admissible when
is
Soblotney,
Martin v.
418,
502 Pa.
253 Further, for one Id. which is offered evidence case. party’s it is inadmissi merely be excluded because purpose need Herco, Inc., v. See Pa.Superior 351 Orlando ble for another. (1986). 144, A.2d 505 308 Ct. adopted has Pennsylvania Supreme Court (Second) of Torts the Restatement
following provision of 323(a) (1965) as an accurate statement representing § System, 501 v. Hills Health Pa. law. See Morena South (1983). A.2d Undertaking Render § Performance of Negligent 323. Services undertakes, or for consideration gratuitously
One who recognize as he should to another which render services or person of the other’s protection for the necessary harm liability physical the other for things, subject is care to failure to exercise reasonable resulting his if undertaking, his perform
(a) the risk of exercise care his failure to increases harm.. however, change the burden of does not provision,
This action or to negligence elements of a to establish the plaintiff Morena; v. Boyce where does not exist. duty invoke one (1971). Corp., States Steel 446 Pa. 285 A.2d United between the relationship existing Duty predicated on degree of requires the relevant time and some parties at knowledge. See Morena. judice, Mrs. had the
In the matter sub
Morrison
duty
that
Service owed a
of
Ambulance
establishing
burden
conduct;
it to
certain standard
which
conform a
required
required;
to conform to
standard
Ambulance Service failed
by Ambulance Service’s
Mr. Morrison’s death was caused
Morena;
Berry v.
was suffered. See
conduct;
actual
and
loss
Titus,
(1985),
appeal
Regarding proposition that Ambulance Service breached Morrison, its to Mr. duty jury presented was with conflict ing testimony concerning degree training required and how trained ambulance attendants would have operated with comparison how the ambulance crew operated. The trial court is correct that since Ambulance expert Service’s testified that Mr. Morrison’s death was actually by caused his head injury drowning, the disputed evidence is not relevant However, causation. Mrs. Morrison was not seeking to estab lish that the ambulance crew could have rescued Mr. Morri son; her burden jury was to convince the that Ambulance failure to provide Service’s a trained ambulance crew was the proximate Thus, cause of Mr. Morrison’s death. the evidence in dispute was properly prove offered the material fact that Ambulance Service failed to conform to local and national by standards of conduct not providing trained attendants.4 Finally, this is not a matter which any prejudice to Ambulance Service’s case substantially outweighed the proba- tive value of disputed evidence. The trial court sufficient- ly danger cured the prejudice arising of unfair from confusion over whether the ambulance crew’s actions in leaving the accident, scene of the discussing the incident with Mr. Schleif- er, and transporting another patient going before to the police death, station were the cause of by instructing jury that if Mr. Morrison died as a result injury, of his head ambu- lance crew’s failure to remain at the scene did not cause the Thus, death. See Whistler. the trial court erred determin- addition, 4. In Ambulance Service's defense was that it did not breach Morrison, duty jury presented to Mr. conflicting and the with regarding escaped evidence through whether Mr. Morrison the front or rear door of the escaped ambulance. Since the door from which he actually indicative of whether Ambulance transporting Service was Mr. claims, disputed Morrison in the manner it properly evidence was weight credibility admitted because it concerned the to be afforded testimony of Ambulance Service’s witnesses. *9 merely because evidence warranted ing a new trial was offered to that evidence was to causation when was irrelevant duty. a breach of a prove
ORDER NOW, 1992, the order of the day May, this 29th of AND reversed. Allegheny County Court of Common Pleas SILVESTRI, dissenting. Judge, Senior husband, George Morri July Mrs. Morrison’s On Ambulance Service son, transported Schleifer’s being by (Schleifer) Rankin, Pennsylvania station police a (Woodville), by hospital operated a Hospital Woodville State Welfare, of Mental Health of Public Office Department (OMH). a patient was mental health Wood- Mr. Morrison began to halluci on brief visit home when he ville and was a Mudd, Officer the local Chief violent. nate became Police, police his home to transported Mr. Morrison from transport him from for Schleifer arranged station and OMH the ambulance was police station Woodville. While north to south across Bridge (Bridge) the Fort Pitt traversing River, way his out of Mr. Morrison forced Monongahela ambulance, railing a and fell over the ran short distance wrongful Morrison filed a death Bridge to his death. Mrs. OHM, Harika, M.D.1 and survival action J.P. against alia, inter negligent that Schleifer was alleging, Schleifer restrain, condition; failing to to assess Mr. Morrison’s failing ambulance; him; him to allowing escape control and watch squad. to remain at the scene to assist rescue failing the crux of It which is at plaintiff is this last contention appeal. this Fol- plaintiff. a in favor of the jury returned verdict ,by seeking judgment relief motion
lowing post-trial trial, a new the trial court notwithstanding the verdict and prior to trial and with and Dr. Harika 1. Mrs. Morrison settled OHM joint release. executed a tort-feasor granted appeal by plaintiff new trial2 and this followed. *10 trial; grant the of new I majority The reverses trial court’s a affirm, would and therefore dissent.
The trial based of new the grant ground a trial on it objection error over permitting, committed the of Schleifer, testimony as to the which events occurred after of plaintiffs Bridge decedent fell over the the to his railing death.
The only plaintiffs evidence as to what after the transpired Bridge decedent fell over the was of the of driver the ambulance, (Jozwiak), assistant, Bernard and J. Jozwiak his Fike, (Fritzius), C. John Fritzius William who near was the of Monongahela shoreline the River underneath the Bridge, Schleifer, and Theodore J. owner of the ambulance. Before forth the the setting testimony persons, of aforesaid necessary layout Bridge. it is to describe the of the The crosses the in a Bridge Monongahela River north-south di- northerly rection with its terminus commonly near what is Park, referred to as which lies Point State between downtown Pittsburgh junction of the Allegheny Monongahe- the levels, la Bridge Rivers. The consists of two each level bearing one-way vehicular traffic.' The first or level lower traffic, traffic, for only level is southbound out carrying of Pittsburgh, East, Parkway downtown but also from the northerly of Pittsburgh from the section the of City (City) Duquesne Bridge, over the Fort which crosses Allegheny the River. Bridge end,
As traffic crosses the and approaches the south are the for right going there lanes to traffic to the westerly City; proceed section also there are lanes to straight tunnel, into through ahead then Hills section of South City. level, level, or upper Bridge The second is also one-way Bridge traffic across the for northbound traffic. tunnel, Traffic level comes from upper another connect- judgment notwithstanding 2. Schleifer’s motion for the verdict was by denied the trial court. ramp and also City, Hills and the the South ing northerly At City. thé westerly section of the from the traffic directly on may way ramps go traffic Bridge, of the end or to East, Duquesne Bridge, or to the Fort Parkway to the City. of the section the downtown the lower level westerly side of on the a sidewalk There pull off to vehicles to no area for Bridge. There is of traffic. flow not to impede order Bridge of the side or upper on either the emergency telephones are no There is there evidence that neither Bridge;3 level of the lower telephone. radio or a with a equipped ambulance plaintiffs after the transpired what evidence as to *11 level of the of the lower Bridge over the rail decedent fell is follows. Bridge as who fall attendants were after the the two
Within seconds
railing
signs
for
looked over
plaintiffs decedent
pursuing
(Fike)
330a-31a
help.
].
for
of
[Tr.
decedent and
sources
of
they
people
could see was
possible help which
The source of
people
but these
they sought to
their attention
get
and
boat
greeting.
[Tr.
a friendly
waving
simply
their
as
interpreted
(Jozwiak)].
bridge
stop
go,
was
and
Traffic on the
80a
lights
and brake
blowing
to
Horns were
bumper
bumper.
(Fike)
Bridge
Pitt
is
The Fort
flashing.
].
332a
[Tr.
were
multi-tiered,
structure.
extremely high volume
very complex,
way
no
park.
over and
There was
place
pull
was no
to
There
plaintiffs
to
to the area where the
get
the attendants
down
for
not have a
river. The attendants did
went into the
decedent
of
communication
the ambulance
means
outside
any
radio or
(Fritzius)
174a
telephone.
[Tr.
].
to the nearest
they
so
went
relevant,
by way
judicial
layout,
of
notice
Bridge
as herein
3. The
evidentiary
dispense
rigors of
to
with the formal
courts
which allows
throughout
regarding
so well known and notorious
proof
matters
until
ignorant
not be
of them
community that even courts should
Stecher,
203,
Department
While Fritzius was for the get attendant Schleifer, he instructed Jozwiak to call Theodore J. their (Jozw- boss and owner the ambulance service. 83a [Tr. iak) (Jozwiak) ]. Jozwiak called Schleifer. ]. 83a Schleif- [Tr. er instructed the attendants to come back to the base because it was in the hands of the police time. 84a [Tr. (Fritzius) (Jozwiak); Tr. 164a then proceeded ]. Schleifer (Schleifer) call 230a [Tr. ] told them what happened. (Schleifer) He Pittsburgh also called the police. 23a [Tr. ]. police The Pittsburgh paramedics notified the responded who the “jumper” call at approximately p.m. p.m. 2:30 2:40 (Peindl) police [Tr. ]. 125a sent no one to interview (Schleifer)]. In 231a police gave [Tr. fact the no Jozwiak, Schleifer, or instructions Fritzius to come to the *12 (Schleifer)]. station be to interviewed. 231a [Tr. This was unrebutted at trial.
After the reported attendants the incident to their and boss 911, they proceeded back to through their base the north- bound tunnel and onto the level upper Bridge. [Tr. of the (Fritzius) (Jozwiak); 84a-85a Tr. 164a-165a This they ]. time driving on the top were deck over the lower deck where (Jozwiak) fell. they decedent 86a As passed [Tr. ]. the area fell, where plaintiff Fritzius slowed the vehicle and both out if attendants looked to see there any activity was below. (Fritzius)]. (Jozwiak); 86a Tr. [Tr. 166a There was none. (Fritzius) 166a The [Tr. ]. attendants arrived back at the (Jozw- p.m. [Tr. at 3:30-3:45 approximately base Schleifer (Fritzius) every- iak); They again told ]. Tr. 170a (Jozwiak) ]. 87a Bridge. [Tr. on the thing happened that the attendants to their home base after their return Shortly dialysis patient. [Tr. already-scheduled pick up went to week, every (Fritzius)]. scheduled patient This was 178a (Fritzius) The had not police 179a [Tr. ]. three times a week. Schleifer, Jozwiak, this scheduled or Fritzius before contacted (Fritzius) delivery dialysis of the After their ]. run. 179a [Tr. At time. to an undisclosed they returned base at patient, the go p.m., they were asked 5:30-6:00 approximately 231a- they [Tr. which did. report to make out a police station (Schleifer) ]. 32a of the incident police were first notified Pittsburgh
The (Steinmetz)]. 104a-05a p.m. [Tr. 3:30-3:45 approximately investigation, initial scéne two hours after their Approximately (Steinmetz) ]. 106a [Tr. the two attendants. they interviewed the leaving the attendants’ never claimed police (Steinmetz)]. 118a investigation. [Tr. their hampered scene in his -wrote: judge, opinion, The trial the death of Morrison opinion the medical Accepting drowning between by blunt force trauma and was caused hit dock our reason six minutes after he the wooden two and call telephone us that death occurred even before tells However, important made. consideration was rather, us but is not what reason tells standpoint of law heretofore, no that Morrison as that there is evidence stated fell. been saved after he could have 3-4.) (Opinion, pp. characterized opinion, judge
At page as plaintiff for the follows: of both counsel and witness conduct Nevertheless, which most conduct of Schleifer condemned both counsel forcefully repeatedly returning workplace the Plaintiff was their witnesses which handling dialysis case had been at a later hour alerting emergency day. for the same After scheduled stated, telephoned attendants has been services as *13 260 Schleifer,
Theodore of the owner Schleifer Ambulance Ser- vice, when they reported had everything happened they were told to to their return base. in
The owner of Schleifer was castigated strongest terms not his men instructing go back to the bridge any so squad rescue would be told where to look for argument Morrison. The even that he suggested might be despite found alive admissions and evidence to the objections, contrary. Permitting despite this numerous be- limine, with ginning very a motion in was a serious trial error. The action of in represent- this respect ed as cold and callous indifference to and it probably life was ill viewpoint advised of conventional opinion, but it did contribute the death of Morrison. The representation error in permitting contrary of the re- new trial. quires a 6) judge opinion
The trial concluded (p. by stating, his “a new trial will have to be granted highly prejudicial because of the error in of admitting alleged evidence fault of Schleifer after the fall.”
The issue before us is whether trial abused its discretion or committed an in granting error law Schleifer a new trial for the reasons set forth in opinion quoted supra.
The
relating
rule
to the review of the
grant
new trial is
Cromwell,
Kralik
in
v.
Supreme
stated
Court
435 Pa.
(1969)
613,
In Garrett’s as to what constitutes forth the standard Supreme Court set as of discretion follows: an abuse it is discretionary power, of reviewing In the exercise that determine down a rule will impracticable lay general it and when should petition granted a should be when such case must particular of The circumstances the be refused. a conclusion the by court has come to control. When the of it on discretion, complaining party of its the exercise burden; persuade a it is not sufficient heavy has appeal might it have reached different the court appellate if, duty place, charged in the first with conclusion below; necessary go it is further imposed “An abuse of discretionary power. an and show abuse but if in merely judgment, an error of discretion not misapplied, or or a conclusion law is overridden reaching unreasonable, or the manifestly exercised is judgment will, ill shown prejudice, bias or as partiality, result of Mielcusz- record, or the discretion is abused.” the evidence (1934). Rosol, 91, 93, 94, A. ny et v. 237 ux. 317 Pa. either a trial court does contain opinion conclusion, indirectly, grant or that its directly statement or alone would not was because evidence pre-jump a new trial contrary, plaintiff. a verdict for the To support court, opinion, wrote as follows: 2 and pages expert testimony transporting before
According this what rely upon attendant should never mental patient seems obvious but has a duty to learn the behavioral subject, characteristics of the if even the acquisition of such knowledge would require talking to a professional who has been treating subject. Unless it is clearly determined subject suicidal, is not assaultive or shackles must be used. It could be said that the thrust of this testimony was in effect that an ambulance service guarantor is a of the safe delivery of a patient. mental Consequently, when Morrison excaped [sic] from the ambulance and committed suicide, expert this testimony made a jury question of the alleged negligence of regardless of contrary testi- *15 mony of experts for the defense. post-jump
The evidence of the conduct of Schleifer and his employees, two did not precipitate plaintiffs the decedent’s escape from ambulance; the evidence, neither did such as by plaintiffs conceded the decedent’s representatives trial, at cause the death of Mr. Morrison. predicate
The of the trial court’s grant is, of a new trial as hereinabove quoted from its opinion, that counsel and witness- plaintiffs es for decedent “most forcefully and repeatedly condemned” Schleifer and that Schleifer “was in castigated the strongest terms for not instructing his men to go back to the bridge.” The action of Schleifer in this respect was represent- ed as “cold and callous indifference to life.”
At 3 of page the trial opinion, court’s it is stated:
It is agreed of record in this case that there is no evidence that Morrison would have survived or that he could have been rescued and revived after fact, his fall. In evidence which exist very much [sic] to the contrary. court, The trial after noting that in counsel their argument suggested that Mr. Morrison might be found alive despite the admission and stated, evidence to the contrary, “Permitting this despite objections numerous very was a serious error” and that in permitting plaintiffs in their argument to represent that Mr. may Morrison have been saved after having agreed on the record to contrary required a new (See 5.) trial. opinion, p. that of judgment to our for
It is not our function substitute here, court, exercises its court when the trial as the trial Before can reverse trial a new trial. we grant discretion trial, demon- new it must be discretionary grant of a court’s defined in its discretion as that the trial abused strated Estate. Neither counsel decedent nor Garrett’s plaintiffs an abuse of which constitutes majority point anything trial, saw and judge presided The trial over discretion. cross-examination on examination and heard the witnesses counsel, and summations of counsel. arguments and heard the position in the determine The trial court was best plaintiffs dece- how counsel and witnesses for impact of testi- characterized, presented post-jump argued dent us, court, on the record before did mony. Clearly, the of discretion. not commit abuse committed an error majority The holds that the trial court majority acknowledges new by granting of law trial. evidence did page opinion post-jump go 1087 of argues and then Mrs. Morrison’s behalf to causation jury Ser- “her burden was to convince the that Ambulance crew was the provide vice’s failure trained ambulance Thus, cause of Mr. Morrison’s death. the evidence proximate material fact that dispute prove offered to properly *16 conform to local and national Ambulance Service failed to trained attendants.” providing standards of conduct However, what it was that majority does not elucidate proximate cause of Mr. post-jump made the conduct nor, considering from the ambulance escape Morrison’s layout Bridge, of the physical conduct vis-a-vis the post-jump were, we what the local and national standards are told therewith. and extent the non-conformance the nature grant predicated of a new trial was Because the trial court’s plaintiffs the manner and conduct of counsel and witnesses evidence, arguendo assuming in the use of the even post-jump evidence was admis- majority post-jump is correct sible, commit- its discretion nor the trial neither abused granting of law new trial. ted error