J-A33033-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

KARLA M. TURNER,                         :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   Appellant             :
                                         :
                   v.                    :
                                         :
SAFEWAY TRUCKING CORPORATION,            :
GEMINI TRAFFIC SALES, INC.,              :
LEONCIO A. CASTILLO, AND HENRY           :
BOWMAN                                   :
                                         :
                    Appellees            :      No. 1101 EDA 2015

            Appeal from the Judgment Entered March 26, 2015,
           in the Court of Common Pleas of Philadelphia County,
          Civil Division, at No(s): January Term, 2012 NO. 01546

BEFORE:    FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED JANUARY 12, 2016

     Karla M. Turner (Turner) appeals from a judgment entered against her

and in favor of Safeway Trucking Corporation (Safeway), Gemini Traffic

Sales, Inc. (Gemini), Leoncio A. Castillo (Castillo), and Henry Bowman

(Bowman) (collectively Appellees). We affirm.

     The background underlying this matter can be summarized as follows.

            This motor vehicle action arose from a three car motor
     vehicle accident that occurred on February 22, 2010 on I-78, a
     four lane highway. At the time of this accident, [Turner] was the
     driver of a school bus which struck the rear of [] Bowman’s van
     which had run out of gas and was stopped in the right most lane
     of the highway. The impact between [Turner’s] bus and the
     Bowman van caused [Turner’s] bus to veer out of control and
     was then struck on the passenger side by [] Castillo’s tractor
     trailer. Prior to the impacts, Castillo’s tractor trailer had also




*Retired Senior Judge assigned to the Superior Court.
J-A33033-15


      been travelling in the right lane behind [Turner’s] bus. [Turner]
      filed [a negligence] suit against [Appellees].[1]

            Trial began in this matter with jury selection on February
      28, 2014 and concluded on March 11, 2014 with a jury verdict in
      favor of [Appellees], finding [Turner] to be 59% comparatively
      negligent and [] Bowman and Castillo to be 29% and 12%
      comparatively negligent, respectively. [Turner] timely filed post-
      trial motions for a new trial, which were denied by [the trial
      court] pursuant to an order [entered March 26, 2015. In the
      same order, the court entered judgment in favor of Appellees
      and against Turner.] On April 13, 2015, [Turner filed a notice of
      appeal]. On April 22, 2015, [the trial court] entered an order
      pursuant to [Pa.R.A.P.] 1925(b) requiring [Turner] to file a
      concise statement of errors complained of on appeal. [Turner]
      timely filed [her] 1925(b) statement[, and the trial court
      subsequently filed an opinion in compliance with Pa.R.A.P.
      1925(a)].

Trial Court Opinion, 7/21/2015, at 1-2 (unnecessary capitalization omitted).

      In her brief to this Court, Turner asks us to consider the questions that

follow.

      1. Did the trial court err in charging the jury as to the sudden
      emergency doctrine with respect to [Castillo], where the
      evidence adduced at trial established that [Castillo’s] negligence
      was responsible for creating any sudden emergency with which
      he was presented?

      2. Did the trial court err in failing to give the assured clear
      distance ahead rule point of charge to the jury as to [Castillo]
      where [Castillo] was not confronted with a sudden emergency
      and where [Castillo] failed to bring his vehicle to a stop within a
      distance that he could clearly see?

Turner’s Brief at 4 (unnecessary capitalization omitted).


1
  Castillo owned the truck he was driving and was hauling a trailer for
Safeway, who, according to Castillo’s testimony, merged with Gemini at
some point. N.T., 3/7/2015, at 28-19.


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J-A33033-15


     Turner’s issues are closely related; so, we will address them together.

At trial, Turner objected to the trial court instructing the jury that the

“sudden emergency” defense was available to Castillo.     Instead, regarding

Castillo, Turner believed the court should provide to the jury an instruction

pursuant to the “assured clear distance ahead” rule. The court determined

that the “sudden emergency” instruction was proper and instructed the jury

in the following manner.

            In this case the defendants claim they’re not liable for
     plaintiff’s harm because they face [sic] sudden emergencies and
     responded reasonably under the circumstances. In order to
     establish this defense the defendants must prove to you all of
     the following: That the defendant faced a sudden emergency
     requiring immediate responsive action, that the defendant did
     not create the sudden emergency, and that the defendants’
     response to the sudden emergency was reasonable under the
     circumstances. Defendants must prove his [sic] defense by a
     preponderance of the evidence.

             A person may not avail himself of the protection of the
     sudden emergency doctrine if that person himself was driving
     carelessly or recklessly. A person will not be held to the usual
     degree of care or be required to use his best judgment when
     confronted with a sudden and unexpected position of peril only if
     the peril was created in whole or in part by someone other than
     the person claiming the protection under the doctrine. The mere
     happening of an accident is not evidence of negligence or of any
     liability on the part of the defendants.

N.T., 3/11/2015, at 42-43.2




2
  It is unclear why the court utilized the words “defendants” and “defendant”
instead of using “Castillo.” In any event, Turner has never challenged the
court’s word choice.


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J-A33033-15


      On appeal, Turner first argues that the trial court erred by charging

the jury with the “sudden emergency” doctrine as to Castillo. Turner’s Brief

at 12-19.     In this regard, Turner’s primary argument is that Castillo’s

negligence created any sudden emergency Castillo encountered.           Next,

Turner contends that, because the “sudden emergency” charge was

unavailable to Castillo, the court should have charged the jury with the

“assured clear distance ahead” rule.3 Id. at 20-23. Lastly, Turner maintains

that she was prejudiced by the court’s allegedly erroneous instruction. Id.

at 23-24. In so doing, Turner states, inter alia, “In the event that the jury

did not believe that Castillo was faced with a sudden emergency (which they

did not appear to believe given the fact that he was held 12% liable) they

were left without any clear guidance as to what specific standard to use with

which to gauge his conduct.” Id. at 23.

      Our Supreme Court has outlined the principles that govern the review

of these matters as follows.



3
  In the middle of this argument, Turner contends that, at the very least, the
trial court should have charged the jury on both the “sudden emergency
doctrine” and the “assured clear distance ahead rule.” Turner’s Brief at 22.
Turner does not indicate where in the record she preserved such an issue, in
violation of Pa.R.A.P. 2117(c) and 2119(e). Our independent review of the
record did not uncover any request from Turner to the trial court that the
court give both of these instructions. Consequently, Turner has waived any
issue as to whether the court should have given both of the instructions.
Pa.R.A.P. 302(a). The issue also is waived because Turner did not include it
in her 1925(b) statement, Pa.R.A.P. 1925(b)(vii), or in the “statement of
questions involved” portion of her appellate brief, Pa.R.A.P. 2116(a).


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J-A33033-15


     First, in reviewing a claim regarding error with respect to a
     specific jury charge, we must view the charge in its entirety
     taking into consideration all the evidence of record and
     determine whether [] error was committed and, if so, whether
     that error was prejudicial to the complaining party. Error will be
     found where the jury was probably misled by what the trial
     judge charged or where there was an omission in the charge
     which amounts to fundamental error. Additionally, in reviewing
     a claim regarding the refusal of a court to give a specific
     instruction, it is the function of [an appellate court] to determine
     whether the record supports the trial court’s decision. The law is
     clear that a trial court is bound to charge only on that law for
     which there is some factual support in the record. We note
     further that it is not the function of the trial court in charging a
     jury to advocate, but rather to explain the principles of law
     which are fairly raised under the facts of a particular case so as
     to enable the jury to comprehend the questions it must decide.

Lockhart v. List, 665 A.2d 1176, 1179 (Pa. 1995).

     In Lockhart, our Supreme Court aptly explained the “assured clear

distance ahead” rule, the “sudden emergency doctrine,” and the interplay

between these two concepts in the following manner:

           Both the assured clear distance ahead rule and the sudden
     emergency doctrine, which are most often employed in cases
     arising out of a motor vehicle accident, are well established in
     our case law. Given the fact specific nature of motor vehicle
     accident cases, however, the application of these two doctrines
     in our case law, either in isolation or in conjunction with each
     other, is somewhat varied rendering a precise and absolute rule
     of law thereon rather elusive. Accordingly, a review of the
     fundamentals of both doctrines is necessary before addressing
     the specifics of the instant matter.

           The assured clear distance ahead rule, which is codified in
     the Vehicle Code, 75 Pa.C.S. § 3361, requires a motorist to be
     capable of stopping within the distance that he or she can clearly
     see….    Th[e Supreme] Court discussed the assured clear
     distance ahead rule at some length in Fleischman v. City of




                                    -5-
J-A33033-15


     Reading, 130 A.2d 429 (Pa. 1957).        Specifically, th[e] Court
     noted:

       “Assured clear distance ahead” means only what it says: a
       clear distance that is assured, that is, one that can
       reasonably be depended on. The rule does not mean that
       the motorist must carry in his mind every possible series of
       combinations which could conspire against him, and that
       he must transport ready-made solutions to overcome all
       fortuitous hazards which suddenly face him. Assured does
       not mean guaranteed.... The assured clear distance ahead
       rule has never been interpreted by th[e Supreme] Court as
       imposing a duty upon a driver to anticipate any and all
       possible occurrences, however remote. Rather, a driver is
       required to anticipate only that which is reasonable. In
       short, the assured clear distance ahead rule simply
       requires a driver to control the speed of his or her vehicle
       so that he or she will be able to stop within the distance of
       whatever may reasonably be expected to be within the
       driver’s path.

        The sudden emergency doctrine, on the other hand, is
     available as a defense to a party who suddenly and unexpectedly
     finds him or herself confronted with a perilous situation which
     permits little or no opportunity to apprehend the situation and
     act accordingly. The sudden emergency doctrine is frequently
     employed in motor vehicle accident cases wherein a driver was
     confronted with a perilous situation requiring a quick response in
     order to avoid a collision. The rule provides generally, that an
     individual will not be held to the “usual degree of care” or be
     required to exercise his or her “best judgment” when confronted
     with a sudden and unexpected position of peril created in whole
     or in part by someone other than the person claiming protection
     under the doctrine. The rule recognizes that a driver who,
     although driving in a prudent manner, is confronted with a
     sudden or unexpected event which leaves little or no time to
     apprehend a situation and act accordingly should not be subject
     to liability simply because another perhaps more prudent course
     of action was available. Rather, under such circumstances, a
     person is required to exhibit only an honest exercise of
     judgment. The purpose behind the rule is clear: a person
     confronted with a sudden and unforeseeable occurrence,
     because of the shortness of time in which to react, should not be



                                   -6-
J-A33033-15


       held to the same standard of care as someone confronted with a
       foreseeable occurrence. It is important to recognize, however,
       that a person cannot avail himself of the protection of this
       doctrine if that person was himself driving carelessly or
       recklessly.

Lockhart, 665 A.2d 1176, 1179-80 (footnotes and citations omitted)

(emphasis in the original).

       Even if we assume arguendo that the court erred by charging the jury

on the “sudden emergency doctrine” instead of the “assured clear distance

ahead rule,” Turner has failed to convince us that such an error prejudiced

her.     First, as Turner points out, the jury found Castillo to be 12%

comparatively negligent; thus, by all appearances, the jury did not afford

Castillo the protection of his “sudden emergency” defense. Consequently, to

the extent the court erroneously instructed the jury on this charge, the error

was harmless. Kukowski v. Kukowski, 560 A.2d 222, 225-26 (Pa. Super.

1989).

       Moreover, we are not persuaded by Turner’s contention that she

suffered prejudice because the trial court failed to charge the jury on the

“assured clear distance ahead” rule.    Contrary to Turner’s suggestion that

the jury was left without any clear guidance as to what standard to use to

gauge Castillo’s conduct, the trial court provided the jury with detailed

instructions on negligence and its elements. N.T., 3/11/2015, at 38 to 51.

Indeed, the jury’s verdict sheet reflects that the jury found that Castillo was

negligent, that his negligence was a factual cause of harm to Turner, and



                                     -7-
J-A33033-15


that Castillo’s negligence constituted 12% of the overall negligence which

caused harm to Turner.

     After reviewing the trial court’s jury charge in its entirety, while taking

into consideration all of the evidence of record, we conclude that the charge

did not contain prejudicial error as to Turner. Consequently, the trial court

did not err by denying Turner’s post-trial motion for a new trial. For these

reasons, we affirm the judgment.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/12/2016




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