Filed: Nov. 25, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 11-25-2003 Schwering v. Klemmer Precedential or Non-Precedential: Non-Precedential Docket No. 02-2212 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Schwering v. Klemmer" (2003). 2003 Decisions. Paper 95. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/95 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 11-25-2003 Schwering v. Klemmer Precedential or Non-Precedential: Non-Precedential Docket No. 02-2212 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Schwering v. Klemmer" (2003). 2003 Decisions. Paper 95. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/95 This decision is brought to you for free and open access by the Opinions of the U..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-25-2003
Schwering v. Klemmer
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2212
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Schwering v. Klemmer" (2003). 2003 Decisions. Paper 95.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/95
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-2212
PATRICIA SCHWERING,
Appellant
v.
JOSEPH M. KLEMMER;
UNITED STATES DEPARTMENT OF DEFENSE;
SAMUEL TACNETTA;
UNITED STATES OF AMERICA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 98-cv-01036)
District Court: Hon. W illiam H. Yohn, Jr.
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 3, 2003
Before: McKEE and SMITH, Circuit Judges,
and HOCHBERG, District Judge.*
(Filed: November 25, 2003)
OPINION
*
The Honorable Faith S. Hochberg, District Judge, District of New Jersey, sitting by
designation.
McKEE, Circuit Judge.
We are asked to review the Magistrate Judge’s order granting judgment in favor of
the government and against plaintiff in this action for negligence under the Federal Tort
Claims Act. For the reasons that follow, we will affirm.
I.
Because we write only for the parties, it is not necessary to recite the facts of this
case except insofar as may be helpful to our brief discussion. Patricia Schwering was a
passenger in a car driven by defendant, Samuel Tacnetta,1 when that car collided with a
car driven by Joseph Klemmer in an intersection in Philadelphia. Tacnetta, who did not
have a driver’s license, was proceeding southbound against a red light when he entered
the intersection where the collision took place. Klemmer was proceeding eastbound into
the intersection with a green light.
Klemmer had been in the far right lane before entering the intersection. A white
pick-up truck that obstructed his view of southbound traffic was on his left. He and the
truck waited approximately three to five seconds after the traffic light turned green before
entering the intersection. Once traffic ceased, Klemmer proceeded into the intersection
behind the truck. While in the intersection, Tacnetta’s car collided with the driver’s side
of Klemmer’s car.
At the time of the accident, Klemmer was acting within the scope of his
1
Although Schwering named Tacnetta as a defendant, he never appeared during the
litigation.
2
employment as a federal employee with the Defense Criminal Investigative Service.
Accordingly, Schwering sued the United States under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b), and the case was referred to a M agistrate Judge for a
bench trial. The Magistrate Judge entered judgment in favor of defendant Klemmer and
the government and against Schwering. Thereafter, Schwering moved for judgment as a
matter of law. The court denied that motion, and Schwering appealed.2
II.
Schwering argues that the Magistrate Judge misapplied Pennsylvania law 3
regarding motorists’ responsibility when approaching intersections. She argues that
Klemmer, the government’s agent, was negligent because he did not exercise the degree
of care that Pennsylvania law requires of a driver approaching an intersection. She first
argues that the facts establish that Klemmer did not look both left and right before
entering the intersection. See Lewis v. Quinn, 101 A.2d 382 (Pa. 1954) and Moore v.
Smith,
343 F.2d 206 (3d Cir. 1965). She also claims that Klemmer did not continue to
observe conditions while entering the intersection, as required under Pennsylvania law.
See Smith v. United News Co.,
196 A.2d 302 (Pa. 1964). She also argues further that
Klemmer disregarded the notice he had that another driver was violating traffic laws, and
2
We exercise plenary review over a district court’s grant or denial of judgment as a
matter of law. Shades v. Great Lakes Dredge & Dock Co., 154 F.3d 143, 149 (3d Cir.
1998).
3
There is no dispute that Pennsylvania state law governs this case. See 28 U.S.C. §
1346(b).
3
that Klemmer failed to drive with enough control to stop at any moment to avoid a
collision. See Jones v. Williams, 58 A.2d 57 (1948) and Heimburger v. Gundy,
34 A.2d
489 (Pa. 1943).
The Magistrate Judge understood that drivers cannot blindly rely on a traffic signal
and that they retain a duty to exercise a high degree of care in entering the intersection.
See Lewis, 101 A.2d at 384;
Moore, 343 F.2d at 209. The court also correctly stated that
a motorist must remain vigilant in an intersection. Rasmussen v. Dresnin,
114 A.2d 182,
184 (Pa. 1955). The court applied this law to its factual finding that Klemmer waited for
traffic to clear at the intersection after the light turned green, and inferred that he
adequately examined the intersection before entering it.4
The court also correctly stated an aspect of Pennsylvania law that plaintiff ignores;
a driver entering an intersection on a green light is not held to the same standard as a
driver who enters an uncontrolled intersection. See United News Co., 196 A.2d at 305. A
driver under the former circumstance has a decreased responsibility to continuously
observe conditions in the intersection. (“[F]irst because he has a right to assume traffic
on the intersecting street will stop for the red light and secondly because he must divide
his attention between approaching traffic and the light.”
Id. at 305-06 (citations omitted);
Nolan v. Sullivan,
372 F.2d 776 (3d Cir. 1966).5 The court correctly applied this law to
4
This is reflected in the fourth, sixth and seventh conclusions of law in the court’s
April 9, 2002 decision.
5
Many of the cases plaintiff cites – Lehner v. Schellhase, 19 A.2d 91 (Pa. 1941), Jaski
v. West Park Cleaners,
5 A.2d 105 (Pa. 1939), Shapiro v. Grabosky,
184 A. 83 (Pa.
4
its factual findings, and concluded that Klemmer’s surveillance of the intersection before
entering on a green light was sufficient to meet this standard.6
Schwering also claims that Klemmer should have anticipated that a driver may
“run” a red light and enter the intersection even though Klemmer had a green light. See
Jones v. Williams. 58 A.2d 57, 60 (1948) (A driver’s “assumption that another driver will
obey the traffic rules cannot be adjudged negligent unless the person making the
assumption has timely warning that his confidence in the other's lawabidingness is
misplaced.”); see also Spraggins v. Shields,
456 A.2d 1000 (Pa. Super. 1983). However,
the Magistrate Judge found that the white truck to the left of Klemmer blocked his view.
R. 11A. This precluded Klemmer from knowing that Tacnetta was about to illegally enter
the intersection, and negated the notice required under Jones. The law gives Klemmer the
right to assume that opposing traffic would stop at the red light, even though it does not
1936), Riley v. McNaugher,
178 A. 6 (Pa. 1935), Helfrich v. Brown,
249 A.2d 778 (Pa.
Super. 1968), Spear & Co. v. Altmyer,
187 A. 309 (Pa. Super. 1936) – are distinguishable
because they discuss the higher standard of care for drivers entering intersections without
traffic lights. Another case cited, Perpetua v. Philadelphia Transport Co.,
112 A.2d 337,
338 (Pa. 1955), did involve a traffic light but was essentially overruled in Koehler v.
Schwartz,
115 A.2d 155, 156 (Pa. 1955) and Andrews v. Long,
228 A.2d 760, 762 (Pa.
1967).
The law recognizes the extent and limitations of a normal man’s vision. He cannot
simultaneously look in four different directions. Having exercised the care of a
reasonably prudent person he cannot be held accountable for the actions of a
motorist who deliberately flouts the warning of a red light and drives ahead in utter
disregard of the rights of others lawfully and properly within an intersection.
Koehler, 115 A.2d at 156 (quoted in Andrews at 762).
6
Schwering does not challenge the trial court’s findings of fact.
5
absolve him of responsibility for examining the intersection before entering.7
Schwering’s last argument is also unavailing. She argues that Klemmer was
negligent pursuant to Heimburger v. Gundy, 34 A.2d 490 (1943). The holding of
Heimburger is consistent with cases we have already discussed. Heimburger merely
holds that a driver may not enter an intersection blindly and without caution. Moreover,
Heimburger did not involve an intersection controlled by traffic lights, and we have
already explained that Klemmer owed the lesser duty that applies where traffic lights are
present.
We thus conclude that the court correctly applied the relevant law in this case, and
that it properly denied the plaintiff’s motion for judgment as a matter of law.
III.
For all of the above reasons, we will affirm the district court’s judgment of
sentence and conviction.
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/ Theodore A. McKee, Circuit Judge
7
Contrary to Schwering’s suggestion, Klemmer was not obligated to “inch out past
the... truck so he could obtain an unobstructed view” of the southbound traffic before
crossing with a green light. This would create a risk of rear-end collisions.
6
