ERIE – A Meadville couple who sued an Ohio trucking firm and one of its drivers, after the defendants were found not negligent in an accident with the husband-plaintiff more than five years ago, and were denied a motion for a new trial, have appealed that decision to the U.S. Court of Appeals for the Third Circuit.
On May 2, 2017, at about 4:45 a.m., Robert Repa, in his duties as a fire police officer, was directing traffic at the intersection of State Route 6 and 19 with Kreitz Road and Zilhaver Road, in Cambridge Springs, Crawford County, Pennsylvania. Despite the four road names, this is a four-way intersection.
At the above time and place, Mr. Repa was working in an active emergency response area to divert traffic around a major fire occurring at the historic Riverside Inn, in Cambridge Springs.
At the same time, defendant Frank Napierkowski, working for co-defendant Hilltrux Tank Lines, Inc., allegedly in a negligent and careless fashion, operated a tractor-trailer vehicle in the southbound direction of State Route 6 and 19 in that, while making a left-hand turn onto Zilhaver Road, in such a manner as to hit Mr. Repa, run his legs over and knock him over a guardrail into a ravine. This catastrophic series of events left Mr. Repa seriously injured, according to litigation brought by Mr. Repa and his wife, Jean Repa.
Later on in the litigation, the plaintiffs attempted to secure the expert testimony of Dr. Richard Bonfiglio, in order to testify to Mr. Repa’s depression and anxiety felt after the accident – a move which led to the defendants filing a motion in limine, in order to disqualify Bonfiglio’s testimony as not credible.
However, U.S. Magistrate Judge Richard A. Lanzillo found that Bonfiglio’s bona fides were more than sufficient and on May 5, he denied the defendants’ motion in limine, instead ruling in favor of the Repas.
“When assessing Mr. Repa, Dr. Bonfiglio reviewed and summarized his medical records. He met with Mr. Repa and his wife and performed a complete diagnostic evaluation. This meeting included reviewing his current medical conditions, assessing his pain levels, his past medical history, reviewing current medications, drug allergies and medical equipment, a review of systems, taking a social history, vocational history and a physical and neurological exam,” Lanzillo said.
“He then recorded his diagnostic impressions, his case analysis and recommendations. All medical opinions offered in his report were expressed with a reasonable degree of medical probability and certainty. Dr. Bonfiglio testified that he relied on the medical records, his in-person evaluation and his experiences with other patients when diagnosing Mr. Repa with depression and anxiety, noting that he had observable symptoms of depression. He explained, in a pertinent part, ‘Mr. Repa has good reasons to be depressed because of the significant functional limitations that he has and the ongoing chronic pain that he has.”
After a week-long trial, the jury concluded on May 20 that Napierkowski bore no negligence or liability in the incident.
On June 3, the plaintiffs motioned for a new trial, arguing that the jurors were instructed improperly as to the charges being considered – and the jury should have been charged with understanding that a” driver has a duty to operate his vehicle in a manner so as not to expose others on the road to an unreasonable risk of harm”, and that “a person [such as Napierkowski] has a duty to use reasonable care to maintain a lookout for vehicles lawfully and foreseeably operated in the roadway.”
According to the plaintiffs, where Mr. Repa was standing “when he was struck was the crux of the case, as the jury, in order to properly discharge their duties, needed to know what the ‘roadway’ was when determining how much care Mr. Repa had to himself exercise.”
“Moreover, the jury’s verdict was against the clear weight of the evidence. The evidence demonstrates that Mr. Repa was run over while standing on the side of the road. While the jury could have reasonably found that plaintiff himself was comparatively negligent for failing to avoid the tractor trailer (as per the jury instructions that were given), the jury could not lawfully find that Napierkowski was zero percent negligent in this accident occurring for the reasons that follow: Napierkowski admitted that he would have been able to see his rear trailer tire’s path had he simply looked out the window,” the motion stated.
“Napierkowski admitted that he was traveling slow enough that, had he seen his trailer about to strike Mr. Repa, he could have safely stopped. Napierkowski admitted he did not look out his window after losing sight of Mr. Repa in his mirrors. This is negligence. Mr. Repa’s failure to then step out of the way of Napierkowski’s negligently-operated trailer does not make Napierkowski zero percent negligent – it simply apportions some amount of fault to Mr. Repa. The jury, in determining Napierkowski was zero percent at fault, rendered a verdict against the clear weight of the evidence in such a manner as to shock the conscience and result in an injustice that can only be corrected by way of a new trial.”
The defendants filed a brief opposing the plaintiffs’ motion for a new trial on June 23.
“As to plaintiffs’ argument that the Court improperly instructed the jury as to Mr. Repa’s duty of care, it should first be noted that the jury found defendants not negligent, and thus, never was negligent. Thus, any alleged error in instructing the jury as to same was harmless. Additionally, the Court’s jury instruction as to Mr. Repa’s duty of care was a correct statement of the law based on the facts of this case. The cases cited to by plaintiffs purportedly for the proposition that Mr. Repa did not have the duty of a reasonable person under the circumstances are inapplicable,” per the defendants’ counter-argument.
“Plaintiffs’ second alleged error, that the Court failed to instruct the jury as to the definition of a ‘roadway,’ and that it does not include the shoulder, also has no merit. Plaintiffs produced no evidence to support or delineate the separation of the shoulder from the roadway. Even plaintiffs’ expert admitted he could not tell where the roadway ended and the shoulder began. Since there was no factual basis for the jury to determine what the ‘shoulder’ was, as compared to the ‘roadway,’ any instruction attempting to distinguish these two terms and purported different duties based on same, would have been confusing and would have misled the jury. Instead, the Court properly instructed the jury that both Mr. Repa and defendant, Mr. Napierkowski, owed a reasonable care to maintain a lookout. The case law cited to by plaintiffs also is factually distinguishable from the facts presented at trial, and thus, inapplicable.”
Finally, the defendants countered that the plaintiffs’ weight of the evidence argument amounts to “nothing more than asking this Court to usurp the role of the jury (which through its unanimous verdict ultimately concluded that Frank Napierkowski’s conduct was reasonable), and instead conclude that Mr. Napierkowski must have been negligent as a matter of law.”
“This argument is mistakenly premised on plaintiffs’ position that based on the evidence, Mr. Repa must have been struck while on the shoulder of the roadway, because some witnesses testified that is where he was found after the accident. Plaintiffs’ argument conflates the notion of where Mr. Repa was found with where he was struck. In fact, other than Mr. Repa’s own trial testimony, which was completely at odds with his deposition testimony and allegations in the complaint, there was no evidence introduced at trial to demonstrate where Mr. Repa was, in fact, struck, let alone that he was struck on the shoulder,” the motion stated.
Ultimately, Lanzillo denied the plaintiff’s motion for a new trial, in a memorandum opinion released on Aug. 10.
“The jury never reached the question whether Mr. Repa was negligent. Thus, any flaw in the instruction regarding his duty of care could not have affected the jury’s verdict. Having found that Mr. Napierkowski was not negligent in the operation of his vehicle, the jury had no reason or occasion to reach issues regarding Mr. Repa’s duty of care. The instructions regarding Mr. Repa’s duty of care related to the defendants’ contributory/comparative negligence defense, which the jury never reached. Because any flaw in those instructions could not have affected the jury’s verdict, it necessarily follows that any such error was harmless,” Lanzillo stated.
“Plaintiffs have not cited, and the Court’s own research has not disclosed, any reported decision holding that an instruction like the one proposed by plaintiffs should be given when the plaintiff is an officer directing traffic. Charging the jury on the general standard of care was sufficient and allowed each party to argue to the jury how that standard should be applied to all relevant actors based on the evidence. The Court’s charge was factually neutral.”
Lanzillo continued that the jury “concluded that plaintiffs had failed to prove by a preponderance of the evidence that Napierkowski acted negligently when he executed his left tum and his rear wheel struck Mr. Repa.”
“Because the record includes evidence to support this finding, plaintiffs have failed to meet the ‘stringent standard’ to show that the verdict contravened the clear weight of the evidence,” Lanzillo said.
UPDATE
The plaintiffs filed a notice of appeal on the ruling denying them a new trial to the Third Circuit on Aug. 19.
“Plaintiffs Robert Repa and Jean Repa hereby appeal to the U.S. Court of Appeals for the Third Circuit from the final judgment entered on June 3, 2022,” the notice stated.
U.S. Court of Appeals for the Third Circuit case 22-2537
U.S. District Court for the Western District of Pennsylvania case 1:19-cv-00101
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com