On March 29, 2018, the Superior Court of Pennsylvania affirmed the entry of nonsuit by the Court of Common Pleas of Dauphin County in the matter of Talley v. Bethea.  The case stems from a 2012 motor vehicle accident.  Defendant Bethea was driving the car while plaintiff Talley, along with Kramer and Rynearson, were his passengers.  Bethea pulled into a parking lot on the Penn State Harrisburg campus and Talley and Rynearson exited the vehicle. Then Bethea drove forward to another part of campus.

Moments after driving away, Kramer heard banging on the back of the car and for the first time noticed that Talley was on the back of the vehicle.  Kramer quickly requested Bethea stop the vehicle, but Talley had already fallen from the car.  Kramer and Bethea found Talley bleeding on the ground and called 911.  Bethea suffered a traumatic brain injury and had no recollection of the accident nor why he had gotten onto the car.  As a result of the injury, Bethea suffers from permanent memory loss, a loss of his sense of smell, hearing damage, and was unable to enlist in the United States Marine Corps.

At the conclusion of Talley’s case before the jury, Bethea filed a motion for nonsuit, arguing that Talley had not met his burden of proof that Bethea had breached a duty owed to him.  The trial court granted the nonsuit and directed verdict in favor of Bethea.  Talley then filed a timely appeal alleging the trial court erred in granting Bethea’s motion for nonsuit.  Talley claims that he established that Bethea was negligent in his operation of the vehicle.  Additionally, Talley argues that because the trial court “considered” Bethea’s “defense” during cross examination, nonsuit was improper.

The court indicated that Bethea owed a duty to Talley to operate the vehicle with the ordinary care of a reasonably prudent person.  However, the sole testimony given on the breach element was that Kramer did not realize Talley was on the back of the car until they began to drive away from the parking lot.  No testimony was provided regarding why Talley was on the back of the car, whether Bethea could have seen him, or how long Talley was on the back of the car.  Further, there was no evidence to establish what happened prior to the accident.  Thus, the sole evidence presented by Talley was his serious injuries which is not sufficient to establish a breach.

Further, the court quickly dismissed Bethea’s argument that nonsuit was inappropriate because Bethea’s cross examination somehow constituted “defense evidence” as cross examination is not evidence.  Lastly, the court rejected Talley’s argument that he be granted a new trial because the court rejected his request to produce demonstrative evidence.  Talley sought to produce photographs of an actor on the back of a vehicle to the jury.  However, no evidence was admitted establishing where Talley was on the vehicle, when he got on the vehicle, or how he fell off the vehicle.  Therefore, any reenactment could be nothing more than speculation and would possess a danger of misleading the jury.

Thus, the ruling of the trial court was affirmed.  However, the fact that this matter required a trial (meaning it was not resolved or dismissed through motion practice) is telling — even when the plaintiff cannot recount the accident circumstances at all, there may still be a “triable issue of fact” for jury consideration.  Here, the defendant stuck to his guns, and prevailed, after a likely stressful pretrial process.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.