                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2003

Schwering v. Klemmer
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2212




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"Schwering v. Klemmer" (2003). 2003 Decisions. Paper 95.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/95


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No: 02-2212


                               PATRICIA SCHWERING,

                                                            Appellant

                                           v.

                           JOSEPH M. KLEMMER;
                  UNITED STATES DEPARTMENT OF DEFENSE;
                            SAMUEL TACNETTA;
                        UNITED STATES OF AMERICA

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (Civ. No. 98-cv-01036)
                       District Court: Hon. W illiam H. Yohn, Jr.

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 3, 2003

                      Before: McKEE and SMITH, Circuit Judges,
                           and HOCHBERG, District Judge.*

                              (Filed: November 25, 2003)



                                       OPINION




   *
    The Honorable Faith S. Hochberg, District Judge, District of New Jersey, sitting by
designation.
McKEE, Circuit Judge.

       We are asked to review the Magistrate Judge’s order granting judgment in favor of

the government and against plaintiff in this action for negligence under the Federal Tort

Claims Act. For the reasons that follow, we will affirm.

                                              I.

       Because we write only for the parties, it is not necessary to recite the facts of this

case except insofar as may be helpful to our brief discussion. Patricia Schwering was a

passenger in a car driven by defendant, Samuel Tacnetta,1 when that car collided with a

car driven by Joseph Klemmer in an intersection in Philadelphia. Tacnetta, who did not

have a driver’s license, was proceeding southbound against a red light when he entered

the intersection where the collision took place. Klemmer was proceeding eastbound into

the intersection with a green light.

       Klemmer had been in the far right lane before entering the intersection. A white

pick-up truck that obstructed his view of southbound traffic was on his left. He and the

truck waited approximately three to five seconds after the traffic light turned green before

entering the intersection. Once traffic ceased, Klemmer proceeded into the intersection

behind the truck. While in the intersection, Tacnetta’s car collided with the driver’s side

of Klemmer’s car.

       At the time of the accident, Klemmer was acting within the scope of his



   1
     Although Schwering named Tacnetta as a defendant, he never appeared during the
litigation.

                                              2
employment as a federal employee with the Defense Criminal Investigative Service.

Accordingly, Schwering sued the United States under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 1346(b), and the case was referred to a M agistrate Judge for a

bench trial. The Magistrate Judge entered judgment in favor of defendant Klemmer and

the government and against Schwering. Thereafter, Schwering moved for judgment as a

matter of law. The court denied that motion, and Schwering appealed.2

                                            II.

       Schwering argues that the Magistrate Judge misapplied Pennsylvania law 3

regarding motorists’ responsibility when approaching intersections. She argues that

Klemmer, the government’s agent, was negligent because he did not exercise the degree

of care that Pennsylvania law requires of a driver approaching an intersection. She first

argues that the facts establish that Klemmer did not look both left and right before

entering the intersection. See Lewis v. Quinn, 101 A.2d 382 (Pa. 1954) and Moore v.

Smith, 343 F.2d 206 (3d Cir. 1965). She also claims that Klemmer did not continue to

observe conditions while entering the intersection, as required under Pennsylvania law.

See Smith v. United News Co., 196 A.2d 302 (Pa. 1964). She also argues further that

Klemmer disregarded the notice he had that another driver was violating traffic laws, and



   2
     We exercise plenary review over a district court’s grant or denial of judgment as a
matter of law. Shades v. Great Lakes Dredge & Dock Co., 154 F.3d 143, 149 (3d Cir.
1998).
   3
     There is no dispute that Pennsylvania state law governs this case. See 28 U.S.C. §
1346(b).

                                             3
that Klemmer failed to drive with enough control to stop at any moment to avoid a

collision. See Jones v. Williams, 58 A.2d 57 (1948) and Heimburger v. Gundy, 34 A.2d

489 (Pa. 1943).

       The Magistrate Judge understood that drivers cannot blindly rely on a traffic signal

and that they retain a duty to exercise a high degree of care in entering the intersection.

See Lewis, 101 A.2d at 384; Moore, 343 F.2d at 209. The court also correctly stated that

a motorist must remain vigilant in an intersection. Rasmussen v. Dresnin, 114 A.2d 182,

184 (Pa. 1955). The court applied this law to its factual finding that Klemmer waited for

traffic to clear at the intersection after the light turned green, and inferred that he

adequately examined the intersection before entering it.4

       The court also correctly stated an aspect of Pennsylvania law that plaintiff ignores;

a driver entering an intersection on a green light is not held to the same standard as a

driver who enters an uncontrolled intersection. See United News Co., 196 A.2d at 305. A

driver under the former circumstance has a decreased responsibility to continuously

observe conditions in the intersection. (“[F]irst because he has a right to assume traffic

on the intersecting street will stop for the red light and secondly because he must divide

his attention between approaching traffic and the light.” Id. at 305-06 (citations omitted);

Nolan v. Sullivan, 372 F.2d 776 (3d Cir. 1966).5 The court correctly applied this law to


   4
     This is reflected in the fourth, sixth and seventh conclusions of law in the court’s
April 9, 2002 decision.
   5
    Many of the cases plaintiff cites – Lehner v. Schellhase, 19 A.2d 91 (Pa. 1941), Jaski
v. West Park Cleaners, 5 A.2d 105 (Pa. 1939), Shapiro v. Grabosky, 184 A. 83 (Pa.

                                               4
its factual findings, and concluded that Klemmer’s surveillance of the intersection before

entering on a green light was sufficient to meet this standard.6

        Schwering also claims that Klemmer should have anticipated that a driver may

“run” a red light and enter the intersection even though Klemmer had a green light. See

Jones v. Williams. 58 A.2d 57, 60 (1948) (A driver’s “assumption that another driver will

obey the traffic rules cannot be adjudged negligent unless the person making the

assumption has timely warning that his confidence in the other's lawabidingness is

misplaced.”); see also Spraggins v. Shields, 456 A.2d 1000 (Pa. Super. 1983). However,

the Magistrate Judge found that the white truck to the left of Klemmer blocked his view.

R. 11A. This precluded Klemmer from knowing that Tacnetta was about to illegally enter

the intersection, and negated the notice required under Jones. The law gives Klemmer the

right to assume that opposing traffic would stop at the red light, even though it does not




1936), Riley v. McNaugher, 178 A. 6 (Pa. 1935), Helfrich v. Brown, 249 A.2d 778 (Pa.
Super. 1968), Spear & Co. v. Altmyer, 187 A. 309 (Pa. Super. 1936) – are distinguishable
because they discuss the higher standard of care for drivers entering intersections without
traffic lights. Another case cited, Perpetua v. Philadelphia Transport Co., 112 A.2d 337,
338 (Pa. 1955), did involve a traffic light but was essentially overruled in Koehler v.
Schwartz, 115 A.2d 155, 156 (Pa. 1955) and Andrews v. Long, 228 A.2d 760, 762 (Pa.
1967).

        The law recognizes the extent and limitations of a normal man’s vision. He cannot
        simultaneously look in four different directions. Having exercised the care of a
        reasonably prudent person he cannot be held accountable for the actions of a
        motorist who deliberately flouts the warning of a red light and drives ahead in utter
        disregard of the rights of others lawfully and properly within an intersection.
Koehler, 115 A.2d at 156 (quoted in Andrews at 762).
   6
       Schwering does not challenge the trial court’s findings of fact.
                                              5
absolve him of responsibility for examining the intersection before entering.7

       Schwering’s last argument is also unavailing. She argues that Klemmer was

negligent pursuant to Heimburger v. Gundy, 34 A.2d 490 (1943). The holding of

Heimburger is consistent with cases we have already discussed. Heimburger merely

holds that a driver may not enter an intersection blindly and without caution. Moreover,

Heimburger did not involve an intersection controlled by traffic lights, and we have

already explained that Klemmer owed the lesser duty that applies where traffic lights are

present.

       We thus conclude that the court correctly applied the relevant law in this case, and

that it properly denied the plaintiff’s motion for judgment as a matter of law.

                                            III.

       For all of the above reasons, we will affirm the district court’s judgment of

sentence and conviction.


TO THE CLERK OF THE COURT:

              Please file the foregoing Opinion.



                                                   /s/ Theodore A. McKee, Circuit Judge




   7
     Contrary to Schwering’s suggestion, Klemmer was not obligated to “inch out past
the... truck so he could obtain an unobstructed view” of the southbound traffic before
crossing with a green light. This would create a risk of rear-end collisions.
                                              6
