2011 PA Super 99
JENNETTE BLUMER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE
ESTATE OF JOSEPH BLUMER, DECEASED, Appellee
v.
FORD MOTOR COMPANY AND McCRACKIN FORD, INC., Appellants
No. 1224 WDA 2009
SUPERIOR COURT OF PENNSYLVANIA
Filed: May 6, 2011
BEFORE: MUSMANNO, SHOGAN and ALLEN, JJ.
OPINION BY ALLEN, J.:
In this products liability case, Ford Motor Company and McCrackin Ford, Inc. (collectively "Appellants") appeal from the judgment entered in favor of Jennette Blumer, individually and as the administratrix of the estate of Joseph A. Blumer, deceased ("Plaintiff"). On appeal, Appellants contend that the trial court erred in admitting reports of prior incidents and in permitting Plaintiff to submit evidence of design changes. Specifically, Appellants maintain that the reports of the prior incidents were not substantially similar to the accident at issue, and alternatively, that the trial court failed to provide a limiting instruction informing the jury that the prior
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incidents could only be used to establish notice because they constituted hearsay. In addition, Appellants assert that the trial court abused its discretion in allowing Plaintiff to introduce evidence of design changes, contending that the design changes were inadmissible under Pa.R.E. 407, which prohibits evidence of subsequent remedial measures. We find no reversible error in the trial court's evidentiary rulings. Accordingly, we affirm the judgment.
The trial court summarized the facts and procedural history of this case as follows:
I. BACKGROUND
On September 9, 2004, Joseph Blumer (hereinafter "Mr. Blumer"), age 43, husband of the Plaintiff, Jennette M. Blumer, was employed as a tow truck driver. On said date, Mr. Blumer responded to a call requiring roadside assistance to a disabled vehicle stopped at a parking lot located at 5000 Centre Avenue in Pittsburgh, Pennsylvania. The motorist, James Walendziewicz, was experiencing problems with the power steering on his 1993 Ford Ranger pick-up truck and requested that the vehicle be towed to his home.
After attaching the Ranger to his 2002 Ford F-350 tow truck, Mr. Blumer soon realized that he could not tow the Ranger truck up the parking lot ramps. Accordingly, Mr. Blumer placed at least one "chock" behind the rear wheels of the Ranger truck and told Mr. Walendziewicz that he would lower the Ranger and then Mr. Walendziewicz should back the Ranger off the L-arms of the tow truck and down the ramp. Once done, Mr. Walendziewicz could then drive the Ranger to the top of the ramp and Mr. Blumer would tow it from there.
Mr. Blumer then operated the towing machinery located at the rear driver's side of the tow-truck to lower the Ranger to the
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ground. He did not re-enter the cab of his truck at any point, and the tow-truck was completely stationary as the Ranger was lowered to the ground. After the Ranger was lowered, Mr. Walendziewicz got in his vehicle and looked over his right shoulder to back off the L-arms of the tow truck and down the hill. Seconds later, he felt a crash and saw the tow truck impact with the front of his vehicle. Mr. Blumer had been run over by his own tow truck and subsequently died under said vehicle.
Plaintiff alleged that a defective design of the parking brake by the Ford Motor Company (hereinafter "Ford") caused the parking brake to disengage. Further, it later was determined that the McCrackin Ford dealership sold the subject Ford F-350 to Edward Butler, Mr. Blumer's employer. Plaintiff sought compensatory and punitive damages from [Appellants].
II. PROCEDURAL HISTORY
A Complaint was filed April 3, 2006. On July 14, 2008, the case was scheduled to be heard during the November 2008 trial list. Due to delays associated with discovery requests, the case was moved to the March, 2009 trial list. After a trial lasting six (6) days, the Jury returned a verdict in favor of Plaintiff and against [Appellants] in the amount of $8,750,000. On March 20, 2009, the Verdict was molded to add delay damages, which increased Plaintiff's recovery to $10,089,229.45.
A Motion for Post-Trial Relief was filed by [Appellants] on March 27, 2009. The parties' briefs were timely filed. This Court scheduled argument on the [Appellants'] Post-Trial Motion for June 23, 2009.
In an Order dated June 25, 2009, this Court denied [Appellants'] Motion for Post-Trial Relief. On July 14, 2009, a Notice of Appeal to the Superior Court was filed by [Appellants]. On that same date, Judgment on the Verdict in favor of the Plaintiff was entered in the amount of $10,089,229.45.
On July 24, 2009, this Court Ordered [Appellants] to file a Concise Statement of Matters Complained of on Appeal within twenty-one (21) days pursuant to Pa.R.C.P. 1925(b). Said statement was timely filed, raising six (6) matters charging
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err[or] on the part of this Court. Upon the filing of this Court's Opinion, the matter shall be properly before the Superior Court of Pennsylvania.
Trial Court Opinion, 10/30/09, at 1-3 (information in brackets added).
While Appellants presented six issues in their Pa.R.A.P. 1925(b) statement, only three are presented in their brief on appeal:
1. Did the trial court commit reversible error by admitting evidence of subsequent remedial measures in contravention of Pa.R.E. 403 and 407?
2. Did the trial court commit reversible error by admitting evidence of other alleged incidents, without requiring Plaintiffs to establish that those incidents were substantially similar to the incident at issue in this case?
3. Did the trial court commit reversible error by admitting hearsay evidence for a non-hearsay purpose without giving the limiting instruction required by Pa.R.E. 105?
Brief for Appellants at 3.1
All of Appellants' issues challenge the trial court's denial of their post-trial motion for a new trial based upon alleged errors that the trial court made in its evidentiary rulings.
[O]ur standard of review when faced with an appeal from the trial court's denial of a motion for a new trial is whether the trial court clearly and palpably committed an error of law that controlled the outcome of the case or constituted an abuse of discretion. In examining the evidence in the light most favorable to the verdict winner, to reverse the trial court, we must conclude that the verdict would change if another trial were granted. Further, if the basis of the request for a new trial is the trial court's rulings on evidence, then such rulings must be
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shown to have been not only erroneous but also harmful to the complaining parties. Evidentiary rulings which did not affect the verdict will not provide a basis for disturbing the jury's judgment....
Moreover, the admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law.
Schmidt v. Boardman, 958 A.2d 498 (Pa. Super. 2008), aff'd 11 A.3d 924 (Pa. 2001) (citation omitted).
Appellants first contend that the trial court erred in admitting evidence of design changes in the Ford truck's parking brake system. Appellants assert that the design changes were inadmissible as subsequent remedial measures. We do not agree.
At trial, Plaintiff introduced evidence of design changes that were implemented to the parking brake of the Ford F-350 for the 2005 model year. Appellants objected to this evidence, contending that the design changes were barred as subsequent remedial measures under Pa.R.E. 407. The trial court overruled Appellants' objection because the design changes were contemplated by Appellant Ford prior to Plaintiff's accident.
Pa.R.E. 407 prohibits the admission of subsequent remedial measures except in certain, delineated circumstances. In its entirety, Pa.R.E. 407 states:
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Subsequent remedial measures
When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct, or produced, sold, designed, or manufactured a product with a defect or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for impeachment, or to prove other matters, if controverted, such as ownership, control, or feasibility of precautionary measures.
Pa.R.E. 407.
By its very language, Pa.R.E. 407 proscribes evidence of "subsequent measures" taken by a defendant with regard to a product "after an injury or harm." Here, the trial court concluded that Pa.R.E. 407 did not prohibit evidence of the design changes because the changes concerned alternative braking systems that were predetermined by Appellant Ford prior to the accident at issue. Trial Court Opinion, 10/30/09, at 8-9. As the trial court explained:
The design changes made by [Appellant Ford] were [] offered to show that... there were alternatives to the subject braking system before the accident causing Mr. Blumer's death... By definition, said testimony...
