ERIE – A federal court jury has ruled that an Ohio trucking firm and one of its drivers acted fully without negligence after a Meadville man was run over by his tractor-trailer, but the plaintiffs have already motioned for a new trial on the basis of the jury being given improper instructions as to the charges being considered.
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.”
UPDATE
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.”
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