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The Pennsylvania Superior Court has ruled that the testimony of a motorist who witnessed a fatal crash during snowy conditions should not have been permitted, but even so, the testimony did not harm the plaintiff’s case.

A three-judge panel consisting of Judges Judith Ference Olson, Alice Beck Dubow and Senior Judge John L. Musmanno affirmed the verdict of a Jefferson County jury in favor of defendant Jim’s Custom Collision.

Plaintiff Vicky Kurtz sued Jim’s over allegedly inadequately servicing Deidre Steiner’s car, in which decedent Desiree Smith traveled as a passenger and was killed when the car was involved in a head-on collision with another vehicle during heavy snowfall.

At issue in the case was the testimony of motorist Amber Boyer, who was traveling in the opposite direction when she saw Steiner’s car, which she estimated was traveling between 50 and 60 miles per hour, slide into her lane for approximately two seconds, according to Olson’s opinion. Boyer said she veered away from Steiner’s vehicle to avoid a collision. Steiner then crashed into the vehicle behind Boyer.

Kurtz, administratrix of Smith’s estate, claimed that Boyer’s testimony should not have been admitted because visibility was poor and she didn’t have enough time to make a reasonable estimation of the vehicle’s speed. The trial court, however, ruled that because Boyer was able to to see Steiner’s car and evade, that indicated she had a presence of mind that established competence.

“There is no basis in case law to support allowing her testimony due to this factor. Furthermore, Boyer testified that her visibility was impaired due to the weather conditions at the time of the accident,” Olson said. “Most significantly, the Steiner vehicle was sliding towards Boyer as she observed it. Few, if any, lay persons have experience in assessing the speed of a vehicle as it slides down a hill, especially when the lay person is observing the sliding vehicle for a mere two seconds. These are established factors weighing against permitting such testimony.”

But be that as it may, Olson said, the testimony did not affect the outcome of the case.

“In this case, the error was harmless because Boyer’s testimony did not prejudice appellant. The purpose of Boyer’s testimony was to establish Steiner’s contributory negligence. Specifically, Boyer’s testimony was introduced to establish that Steiner was driving too fast for conditions; and therefore, was contributorily negligent. However, since the jury did not find Jim’s negligent, the jury did not consider contributory negligence. Therefore, Boyer’s testimony did not prejudice appellant,” Olson said.

Theron Noble of Ferraraccio & Noble represents Kurtz and did not return a call seeking comment. Dennis Mulvihill of Robb Leonard Mulvihill represents Jim’s and did not return a call seeking comment.

(Copies of the seven-page opinion in Kurtz v. Jim’s Custom Collision, PICS No. 18-0990, are available at