Justices Won't Review Upended $32M Wrongful Death Verdict

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Photo: Jason Doiy

The Pennsylvania Supreme Court has declined to hear argument in the case of a vacated $32 million verdict awarded to the family of a 6-year-old boy killed in a car accident.

The court denied allocatur Feb. 15.

Previously, a split three-judge panel vacated the verdict April 30. Judge Judith Ference Olson authored the majority opinion and was joined by Senior Judge Eugene B. Strassburger III. Judge Victor Stabile dissented from the majority.

The accident occurred May 1, 2012, on Route 28 in Allegheny County, when the hood of a Pontiac Vibe driven by Thomas Straw malfunctioned and released upward, obstructing his view, according to court papers. Straw stopped the car, which was also carrying his wife, Jennifer Straw, and their sons, Elijah and Rowan, in the center travel lane of the highway, with open lanes on either side.

A Ford F-250 pickup truck, owned by Golon Masonry Restoration Inc. and driven by Kirk Fair in the course of his employment with the company, collided with the rear of the Straws’ car, killing Elijah Straw, who was in a car seat, and injuring his parents and brother.

Memos from both sides said Fair was fumbling with folders that had fallen to the floor and had taken his eyes off the road. Fair pleaded guilty to homicide by vehicle, three counts of aggravated assault by vehicle and four counts of recklessly endangering another person, among other charges, according to the plaintiffs’ memo. He was sentenced to six to 23 months’ imprisonment and 10 years’ probation, the memo said.

Thomas and Jennifer Straw each suffered concussions, lumbar spine fractures, bruises, lacerations and abrasions, and Rowan Straw had seizures at or on the way from the accident scene and was kept in the hospital for four days, the plaintiffs’ memo said.

Thomas and Jennifer Straw each had mental-health issues tied to the accident, the memo said. Thomas Straw developed major depressive disorder.

An Allegheny County jury subsequently found in favor of the plaintiffs, but the Superior Court held on appeal that the trial court erroneously granted summary judgment in favor of additional defendants, auto stores that provided service to the Straws’ vehicle prior to the accident, claiming that it was up to the jury to determine their liability.

“Even though Tower Auto, Jiffy Lube, and NAPA Auto Parts performed their services weeks or months prior to the accident, the mere lapse of time does not take the proximate cause issue away from the jury,” Olson wrote. “Viewing the evidence in the light most favorable to appellants, a jury could properly conclude that the hood latch had been damaged ‘for a substantial amount of time’ prior to the accident and that it merely took weeks or months for the air speed and drag to finally, and foreseeably, open the dangerously unsecured hood.”

However, Stabile opposed the complete undoing of the verdict.

“I do not believe it is necessary for this court to examine whether the conduct of the additional defendants was a proximate cause of plaintiffs’ harm, since I would conclude that Fair’s conduct was a superseding cause of the harm,” Stabile wrote in his dissent. “Fair’s extraordinary conduct was not a reasonably foreseeable or normal result of the combined actions of the additional defendants. His conduct was extraordinary in the degree of its recklessness that could not have been foreseen by additional defendants, thus relieving them of liability for any antecedent negligence.”

But Olson, addressing that issue in the majority opinion, said it was for a jury to decide “whether Mr. Fair’s criminal acts and particular combination of speeding, inattentive driving, and (alleged) intoxication were 'so extraordinary as not to be reasonably foreseeable’ to the additional defendants.”

Jon Perry of Rosen Louik & Perry, who represents the Straw family, said he was able to reach a settlement with the defendants in the case, so the Supreme Court's allocatur denial has no effect on his clients.

Robert Arcovio of Margolis Edelstein, who represents Fair, did not respond to a request for comment.