The state Superior Court has revived a claim stemming from a fatal motor vehicle-pedestrian accident, ruling that the trial court improperly weighed the evidence before it and discounted possibly viable plaintiffs experts in dismissing the defendants on a grant of summary judgment.

In an opinion penned by Judge David N. Wecht, the unanimous three-judge panel did not specifically credit or weigh any of the evidence, but rather decided that a jury question as to liability remained in play after speculating about what additional evidence might show and what a jury might conclude. The evidence of record so far in Wright v. Eastman includes the defendant’s own testimony that he didn’t see the woman he hit until she was about two car lengths away, one plaintiffs expert who offered a "conservative" opinion about the distance at which the driver should have seen the woman, Patricia Carlin, and another expert who opined on how much distance the driver should have needed to abruptly stop.

With respect to both parties’ evidence, Wecht said an Allegheny County Court of Common Pleas judge "intruded upon the province of a jury" in dismissing the negligence claim in December 2011.

In short, the panel concluded there was a genuine issue of material fact as to whether defendant Paul Eastman breached his duty to Carlin.

"Weighing these reports and the experts’ related testimony, if any, is for the jury," Wecht said, closing his opinion. "We merely apply the governing standard of review, de novo, as is our task, and find that appellant has made out a substantial question of material fact as to each element of negligence."

Much of the 26-page opinion reflects a dueling review of the record and analysis of the record, including deposition testimony parsed with observations about its foundation. As for the viability and reliability of the evidence on the record, though, Wecht deferred to a jury and the conclusions of a possible Frye hearing.

"Moreover, we do not intend prematurely to dispose of any issues pertaining to the admissibility of the expert testimony that might be tested and resolved in a Frye hearing," Wecht said.

In his analysis, Wecht also said the Superior Court could not endorse the trial court’s reliance on Eastman’s testimony.

First off, it was not for the trial court to assess credibility: "Perhaps [Eastman] would wilt under cross-examination in ways that would undercut his deposition testimony."

Wecht also added that even if the jury were to credit Eastman’s testimony that he didn’t see Carlin until he was at most two car lengths away, the jury is still tasked with determining whether that was the earliest he should have seen the woman.

"This is the critical inquiry in determining whether [Eastman] breached his duty to [Eastman] — not when he saw her in fact, but when it was his duty to see her, such that his failure to do so would amount to a breach of that duty," Wecht said. "The trial court conflated these inquiries, confounding the process by which a jury, following examination and cross-examination of the witness in open court, assesses the credibility of testimony, and makes such inferences as are permissible therefrom."

There were also undetermined facts as to how Carlin was making her way across the street. With a reference to Harry Potter, Wecht noted that Carlin did not appear in the street out of nowhere.

"Even if we took at face value [Eastman's] deposition testimony that he first observed [Carlin] at a distance of approximately 30 feet (a presumption to which [Eastman] is not entitled on summary judgment), this would not change the fact that, without the power instantly to materialize in a new location, Carlin must have traversed the distance from one side of the road or the other to the point where she was struck."

A footnote attached to the line reads, "In the world of Harry Potter, wizards refer to this mode of travel as apparition," and points the reader to the Wikipedia page on the popular fantasy novel series.

According to the opinion, Eastman testified he was driving home from work on Pittsburgh-McKeesport Boulevard in June 2008 when he struck Carlin, who ultimately died from injuries sustained in the accident. The record indicates that Carlin had 0.42 percent blood alcohol content at the time.

Eastman testified more than once that he did not see Carlin until he was, in Wecht’s words, "nearly on top of her." Traveling at 30 miles per hour, the man testified that he did not have time to swerve, but that he did have enough time to move his foot from the gas to the brake. However, Eastman hit the woman before he could stop his Ford Escort wagon.

A deposition taken of the police officer who investigated the accident corroborated Eastman’s testimony, but there were "significant differences" between the two, Wecht said. Namely, the defendant and the investigator diverged on whether he actually braked (the investigator said the car was moving between 30 and 32 miles per hour when it hit Carlin), which part of the front bumper made contact with the pedestrian, and whether Carlin was wearing black or white — an issue that could change a jury’s conclusion about how visible Carlin was to the driver and at what distance she became visible.

Enter The Experts

First came an engineer, Walter J. Kosmatka, who had made a career of designing and testing light systems for cars, as well as helping develop government and manufacturing standards for headlights.

It was unclear from the record whether Eastman had his high or low beams on at the time of the collision (they were on when police found the car), but Kosmatka offered what Wecht called "conservative" or neutral — and assumed to be "[defendant]-friendly" — account of the circumstances.

His conclusion, after delving into "expectant" versus "non-expectant" drivers and reflectance factors, was that — for Carlin’s exposed, white lower legs — the obstacle luminance requirement of a non-expectant driver was satisfied at about 170 feet. In other words, a driver not expecting to collide with something should have seen the woman’s legs once he was about 170 feet away — more than 10 Ford Escort lengths .

Then came Kevin E. O’Connor, an accident reconstructionist who utilized Kosmatka’s report in concluding that Eastman had enough time to stop and should have avoided the collision.

Attorneys representing Carlin’s estate, administered by Catherine Wright, welcomed the decision.

"I think that the court’s analysis was strong, it was right on, and that it really showed the limited scope that a trial court should exercise in taking questions from a jury," said William S. Stickman IV of Del Sole Cavanaugh Stroyd in Pittsburgh, who was the estate’s appellate counsel. "This was a really straightforward appeal. It came down to the very simple issue … were there genuine issues of material presented by plaintiff through her experts about whether the defendant could be found negligent by a reasonable jury?"

Richard Shenkan, of Shenkan Injury Lawyers in New Castle, Pa., offered this statement: "A trial court — while, however, tempting — must refrain from weighing the sufficiency of evidence or injecting preconceived notions of right and wrong when such questions are properly reserved for the fact-finder, such as rate of speed, visibility and distance by which a potentially negligent driver should have seen a pedestrian and avoided impact. We are pleased that Patricia Carlin’s family can now be better assured that a jury will hear this catastrophic unfortunate loss."

Robert A. Loch of Robb Leonard Mulvihill in Pittsburgh declined comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI. •

(Copies of the 26-page opinion in Wright v. Eastman, PICS No. 13-0164, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •