J-A13005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 VICKY L. KURTZ, INDIVIDUALLY AND         :   IN THE SUPERIOR COURT OF
 AS THE ADMINISTRATIX OF THE              :        PENNSYLVANIA
 ESTATE OF DESIREE SMITH                  :
                                          :
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :   No. 713 WDA 2017
                                          :
 JIM'S CUSTOM COLLISION, INC.,            :
 TBC CORPORATION, A DELAWARE              :
 CORPORATION; THE DEL-NAT TIRE            :
 CORPORATION, A NEVADA                    :
 CORPORATION; COOPER TIRE AND             :
 RUBBER COMPANY, A DELAWARE               :
 CORPORATION                              :

               Appeal from the Judgment Entered June 9, 2017
              In the Court of Common Pleas of Jefferson County
     Civil Division at No(s): 143-2015 CD, 149-2014 CD, 95-2015 CD


BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 13, 2018

      Appellant, Vicky L. Kurtz, individually and as administratix of Desiree

Smith’s (“Decedent’s”) estate, appeals from the June 9, 2017 judgment

entered in favor of Jim’s Custom Collision, Inc. (“Jim’s”). We affirm.

      The factual background and procedural history of this case are as

follows.   In October 2012, Jim’s inspected and rotated the tires on Deidre

Steiner’s (“Steiner’s”) vehicle. Jim’s ordered new tires for Steiner’s vehicle

and notified her when those new tires arrived; however, she declined to have

them installed.
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      On February 28, 2013, Decedent was a passenger in Steiner’s vehicle

which was traveling on State Route 153 in the area commonly known as Boone

Mountain. A winter storm created a virtual “whiteout” in that area. Amber

Boyer (“Boyer”), who was traveling in the opposite direction, testified she saw

Steiner’s car, which was traveling between 50 and 60 miles per hour, sliding

into her lane for approximately two seconds. She took evasive action to avoid

a collision. N.T., 4/12/17, at 208-210. Steiner’s vehicle continued to slide

and collided with the vehicle directly behind Boyer. Decedent died as a result

of injuries suffered during the crash.

      Appellant instituted the instant lawsuit alleging Jim’s improperly rotated

the tires on Steiner’s car.   Appellant later amended her complaint to add

products liability claims against additional defendants. Those products liability

claims were settled prior to trial. Also prior to trial, Appellant moved in limine

to exclude Boyer’s testimony relating to the speed of Steiner’s vehicle. On

April 3, 2017, the trial court denied that motion.

      On April 13, 2017, the jury found in favor of Jim’s. The verdict slip in

this case included special interrogatories. The first special interrogatory asked

if Jim’s was negligent in failing to properly inspect and rotate the tires on

Steiner’s vehicle. As the jury answered “no” to this question, it did not reach

the other questions listed on the verdict slip. On April 18, 2017, the trial court

denied Appellant’s timely post-trial motion. Appellant filed a premature notice




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of appeal.1 On June 9, 2017, the trial court entered judgment in favor of Jim’s

and against Appellant. Appellant’s notice of appeal is considered filed as of

that date. See Pa.R.A.P. 905(a).

       Appellant presents one issue for our review:

       Whether the trial court erred in allowing [Boyer] to testify as to
       the speed of [Steiner’s] vehicle . . . ?

Appellant’s Brief at 4.

       Appellant challenges the trial court’s denial of her motion in limine.

“When ruling on a trial court’s decision to grant or deny a motion in limine,

we   apply    an    evidentiary     abuse      of   discretion    standard   of   review.”

Commonwealth v. Ivy, 146 A.3d 241, 250 (Pa. Super. 2016) (citation

omitted). An error of law constitutes an abuse of discretion. Nat’l Cas. Co.

v. Kinney, 90 A.3d 747, 753 (Pa. Super. 2013) (citation omitted).

       Under Pennsylvania law, a lay witness may estimate a vehicle’s speed if

he or she had an “overall opportunity for adequate observation” of the other

vehicle, such that someone who has experience operating a vehicle could

accurately estimate the vehicle’s speed. Fisher v. Central Cab Co., 945 A.2d

215, 219 (Pa. Super. 2008) (citation omitted).                   In order to satisfy this

requirement, the lay witness must have observed the vehicular movement in

____________________________________________


1   On May 18, 2017, the trial court ordered Appellant to file a concise
statement of matters complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On December 22, 2017, Appellant filed her concise
statement. On December 28, 2017, the trial court issued its Rule 1925(a)
opinion. Appellant’s lone issue was included in her concise statement.

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question and also similar vehicles at varying speeds.      Id. at 218 (citation

omitted). While there is no minimum amount of distance or time a witness

must observe a vehicle, a “fleeting glance” is insufficient to permit such lay

opinion testimony.    See Radogna v. Hester, 388 A.2d 1087 (Pa. 1978).

Moreover, trial courts must consider the angle the vehicle was traveling in

relation to the lay witness, Catina v. Maree, 415 A.2d 413, 419 (Pa. Super.

1979), rev’d on other grounds, 447 A.2d 228 (Pa. 1982), the lighting

conditions/visibility, id., and the lay witness’ driving experience. Fisher, 945

A.2d at 215.

      The trial court found that Boyer had the necessary amount of time to

make a reasonable estimation of the vehicle’s speed.       Trial Court Opinion,

12/28/17, at 1.      The trial court reasoned that Boyer’s competency was

established by her ability to see the car and take evasive action while retaining

a vivid memory of the occurrence, her driving experience, and her confidence

in the estimation. Id. at 1-2. Although Boyer’s driving experience is relevant

to the admissibility of her testimony, her level of confidence is not relevant to

its admissibility.   There is no basis in case law to support allowing her

testimony due to this factor. Furthermore, Boyer testified that her visibility

was impaired due to the weather conditions at the time of the accident. Most

significantly, the Steiner vehicle was sliding towards Boyer as she observed it.

N.T., 4/12/17, at 209-10.      Few, if any, lay persons have experience in

assessing the speed of a vehicle as it slides down a hill, especially when the


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lay person is observing the sliding vehicle for a mere two seconds. These are

established factors weighing against permitting such testimony. See Fisher,

945 A.2d at 915; Maree, 415 A.2d at 419. Accordingly, in considering all of

the relevant factors, we conclude that the trial court erred in denying

Appellant’s motion in limine to exclude Boyer’s testimony.

      Having determined that the trial court erred in permitting Boyer’s

testimony, we turn to whether the error was harmless. An error is harmless

if there is no reasonable possibility the error may have contributed to the

verdict. Commonwealth v. Brown, 185 A.3d 316, 330 (Pa. 2018) (citation

omitted). There is no reasonable possibility an error contributed to the verdict

if:

      (1)   the error did not prejudice the [losing party] or the prejudice
            was de minimis;

      (2)   the erroneously admitted evidence was merely cumulative
            of other untainted evidence which was substantially similar
            to the erroneously admitted evidence; or

      (3)   the properly admitted and uncontradicted evidence [] was
            so overwhelming and the prejudicial effect of the error was
            so insignificant by comparison that the error could not have
            contributed to the verdict.

Id. (citation omitted).

      In this case, the error was harmless because Boyer’s testimony did not

prejudice Appellant.      The purpose of Boyer’s testimony was to establish

Steiner’s contributory negligence.      Specifically, Boyer’s testimony was

introduced to establish that Steiner was driving too fast for conditions; and


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therefore, was contributorily negligent. However, since the jury did not find

Jim’s negligent, the jury did not consider contributory negligence. Therefore,

Boyer’s testimony did not prejudice Appellant.        See Boyle v. Indep. Lift

Truck, Inc., 6 A.3d 492, 496 (Pa. 2010) (citations omitted); Robinson v.

City of Philadelphia, 478 A.2d 1 (Pa. Super. 1984); Dean v. Trembley,

137 A.2d 880, 883 (Pa. Super. 1958) (“the jury having found that the

defendant was not guilty of negligence, it must be assumed that the matter

of the alleged contributory negligence of plaintiff, as contended by the

defendant, was never considered by the jury”); Whitton v. H.A. Gable Co.,

200 A. 644, 646 (Pa. 1938) (“As the jury found no negligence on the part of

[defendant] the question of contributory negligence passes out of the case,

and any error in the charge in this respect would not have been prejudicial.”).

      At oral argument, Appellant averred that notwithstanding the fact that

Boyer’s testimony only went to contributory negligence, it still was prejudicial

with respect to the jury’s negligence finding. This argument is without merit.

It is well-established that jurors are presumed to follow the trial court’s

instructions.   Commonwealth v. Patterson, 180 A.3d 1217, 1228 (Pa.

Super. 2018), citing Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa.

2006); Commonwealth v. O’Hannon, 732 A.2d 1193, 1196 (Pa. 1999)

(“Absent evidence to the contrary, the jury is presumed to have followed the

trial court’s instructions.”). The trial court instructed the jury to first consider

if Jim’s was negligent.     The jury was instructed to consider the issue of


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Steiner’s negligence only if it found Jim’s negligent. N.T., 4/13/17, at 108-

109. Since the jury found Jim’s was not negligent, the jury did not consider

Steiner’s negligence during deliberations. As such, the trial court’s error did

not prejudice Appellant and the error was harmless.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2018




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