                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-2-2002

Main Street Bank v. Huether
Precedential or Non-Precedential:

Docket No. 00-3494




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Recommended Citation
"Main Street Bank v. Huether" (2002). 2002 Decisions. Paper 236.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/236


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                                                                                NOT PRECEDENTI

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                           No. 00-3494


            MAIN STREET BANK, as Administrator of the
                 Estate of Shakunthala N. Gubbi;
          G. SADASHIVARAD NAGARAJU, As Guardian Ad Litem
      of the Estate of Shakunthala N. Gubbi, an incompetent

                                v.

           MARY A. HUETHER, Executrix of the Estate of
          Harry C. Huether, Deceased, and individually;
             CHARLES J. HUETHER; PATRICIA M. HUETHER;
          PINEBROOK, LTD.; PINEBROOK II; PINEBROOK III;
        PINEBROOK IV; PINEBROOK IV HOMEOWNERS ASSOCIATION;
          PINEBROOK RESIDENCE, LTD.; COUNTRY HILL HOMES;
       TOWNSHIP OF WEST BRUNSWICK; GUBBI N. RANGANATH, M.D.

         MAIN STREET BANK, as Administrator of the Estate
                    of Shakunthala N. Gubbi,
                                                 Appellant


         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                      (D.C. No. 98-cv-00837)
                District Judge: Hon. Yvette Kane


            Submitted Under Third Circuit LAR 34.1(a)
                          April 1, 2002

     Before: SLOVITER, FUENTES, and MICHEL,* Circuit Judges
____________________

     *    Hon. Paul R. Michel, United States Circuit Judge for the Federal Circuit, sitting
     by designation.                     (Filed: April 2, 2002)



                       OPINION OF THE COURT


SLOVITER, Circuit Judge.

     Before us is the appeal by Main Street Bank ("Bank"), the administrator of the
estate of Shakunthala N. Gubbi ("Gubbi"), from the District Court’s order granting
Summary Judgment dismissing the Bank’s suit against the defendant, Pinebrook
Residence, Ltd. ("Pinebrook").
     Pinebrook owns and operates a personal care facility within the Pinebrook
Development in West Brunswick Township. Immediately adjacent to the personal care
facility is a large, unguarded pond. The Bank’s negligence claim against Pinebrook
arises out of its ownership and maintenance of this pond.
                                I.
     Gubbi, a thirty-four year old computer programmer from Bangalore, India, arrived
in the United States on January 16, 1998, to stay with her brother, Gubbi Ranganath
("Dr. Ranganath"), and find work as a computer programer. Gubbi applied for and
subsequently received a driver’s license permit on February 28, 1998. Prior to receiving
her permit, Gubbi had never received any driving instruction nor operated a car.
     On March 1, 1998, Dr. Ranganath provided a driving lesson to Gubbi. Gubbi was
operating a 1988 Honda owned by the Ranganath family when she traveled along
Woodbridge Road passing Pinebrook’s personal care facility and the pond in question on
her left. She then turned right on Grist Mill Road and proceeded some distance before
turning around to travel back to the intersection of Grist Mill and Woodbridge Roads.
      Gubbi lost control of the vehicle as she attempted a left turn onto Woodbridge
Road. The vehicle left the roadway, struck a small tree, and landed in the pond where it
sank. There is some dispute as to the distance of the pond from the roadway and the
number of feet it traveled but they are not material to our disposition. Gubbi was
extricated from the vehicle in a comatose condition. After months of hospital and
rehabilitative care, she was returned to India, where she died on December 16, 1998.
     The police report of the accident states that Trooper Luckenbill interviewed Dr.
Ranganath at the scene. Dr. Ranganath stated that when Gubbi negotiated the left turn,
she hit the gas instead of the brake and then hit a tree before entering the pond. The
Bank filed suit in the District Court for the Middle District of Pennsylvania against
numerous defendants but Pinebrook is the only remaining defendant.
     On September 15, 1999, Pinebrook filed a motion for summary judgment, which
the District Court referred to a Magistrate Judge. The Magistrate Judge issued a report
and recommendation recommending that summary judgment be granted. The District
Court adopted that recommendation and entered summary judgment in favor of
Pinebrook.
     We review the District Court’s grant of summary judgment de novo. Huang v. BP
Amoco Corp., 271 F.3d 560, 564 (3d Cir. 2001).
                                 II.
     Plaintiff’s claim of negligence is predicated on Restatement (Second) of Torts
368 which provides:
                      A possessor of land who creates or permits to remain thereon
           an excavation or other artificial condition so near an existing
           highway that he realizes or should realize that it involves an
           unreasonable risk to others accidentally brought into contact
           with such condition while traveling with reasonable care
           upon the highway, is subject to liability for physical harm
           thereby caused to persons who
                                (a) are traveling on the highway, or
                           (b) foreseeably deviate from it in the ordinary course
           of travel.

     The Pennsylvania courts "give full recognition to the principle" of Restatement
368. Rasmus v. Pennsylvania R.R. Co., 67 A.2d 660, 661 (Pa. Super. Ct. 1941); see also
Schaut v. Borough of St. Marys, 14 A.2d 583 (Pa. Super. Ct. 1940) (affirming verdict for
plaintiff who sustained injury upon falling off a slippery sidewalk and landing on a series
of iron stakes placed within four inches of the sidewalk).
     Pinebrook argues that the pond is not "so near an existing highway" that 368
applies. As noted earlier, the parties dispute the distance of Pinebrook’s pond from the
highway. We will not dwell on that issue because, although the Magistrate Judge did
state that this case "points up the need for there to be a condition ’so near an existing
highway so as to render the use of the roadway unsafe,’" App. at 385a, the court relied
on other factors to dismiss the complaint.
     Dispositive for the court was the requirement under 368 that Gubbi was not
traveling with reasonable care upon the highway. As the Magistrate Judge explained.
                         As can be seen from the foregoing, although there is a
          dispute as to whether or not the car was airborne when it
          entered the pond, the evidence is clear that at the very least,
          Shakunthala with absolutely no driving experience was
          traveling at a speed in excess of that which was required to
          make a turn into Woodbridge Drive, lost control of the car,
          left the roadway and accelerated into the pond without
          braking. The scenario established by the evidence is that
          Shakunthala who was driving a moving automobile for only
          the first time and then for only two to three minutes began her
          turn from Grist Mill Road in to Woodbridge Road at a speed
          greater than was proper for a left turn into Woodbridge Road,
          lost control of the vehicle and continued to accelerate without
          braking as she traveled more than 32 feet where she entered
          the pond. This certainly is not consistent with one who is
          traveling with "reasonable care upon the highway."
          Restatement Section 368. There does not appear to be any
          evidence to the contrary and thus it does not appear that a
          jury could reasonably find that Shakunthala was traveling
          along the roadway with reasonable care.

App. at 383a.
     The court also determined that 368 was not applicable to this case because the
pond did not create a foreseeable risk of danger for travelers on the highway. After
reviewing the Pennsylvania case law, the court stated:
                         Similarly, in the instant case, it does not appear that
          the jury could reasonably find that the defendant realized or
          should realize that the pond located 32 feet from the roadway
          where the car entered the pond would present a hazard or that
          in any event should have foreseen the remote possibility of a
          novice driver (2-3 minutes behind the wheel), traveling at a
          speed which would prevent her from executing a safe left
          turn, losing control and accelerating across the grass and into
          the pond without even attempting to brake.

App. at 385a.
     We agree with the Magistrate Judge’s conclusion that "both from the standpoints
of whether this pond presented a hazard, foreseeability and lack of due care by the
deceased, it would not appear that a reasonabl[e] jury could find the defendant liable
pursuant to the provisions of Restatement Section 368."
                               III.
     Accordingly, we will affirm the order of the District Court granting summary
judgment for Pinebrook.
_____________________

TO THE CLERK:

          Please file the foregoing opinion.


                    s/s Dolores K. Sloviter
                Circuit Judge
