Negligence Per Se; Jury Instruction

Grove v. Port Auth. Of Allegheny Cty., 178 A.3d 239 (Pa. Cmwlth. 2018), allocatur granted Aug. 31, 2018, appeal docket 32 WAP 2018

In June 2014, Grove was walking on a sidewalk along Sixth Avenue in downtown Pittsburgh. Grove attempted to cross a one-way street (Montour Way) and had to step around a vehicle in the pedestrian crosswalk and was hit by a Port Authority Bus. Before striking Grove, the bus was traveling down Sixth Avenue at approximately nine miles per hour when it encountered a stopped vehicle in its lane attempting to turn left. The bus maneuvered around the vehicle, and it struck Grove.

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Grove fell and hit her head on the pavement, and her right leg was trapped under the bus. The bus’s tire ran over Grove’s leg and dragged her along the ground. The bus driver did not realize she struck Grove until a passenger on the bus yelled for her to stop the bus. Grove’s leg was almost completely severed.

Over the next three months, Grove underwent numerous surgeries in an effort to save her leg. Ultimately, her leg was amputated just below the knee, and she was fitted with a prosthesis.

Grove sued the Port Authority.  She alleged the bus driver caused her injuries by negligently passing the stopped vehicle in the bus’s lane that was attempting to turn left as the road was only marked as a two-lane road.  Grove alleged the bus drove onto the curb and encroached on the adjoining intersection.

At trial, Grove admitted she was not in the cross walk of Montour Way, but denied that her foot ventured onto Sixth Avenue.  Another witness testified Grove was on Sixth Avenue when the bus struck her.  A third witness could not testify definitively on the issues because she could only see the top of Grove’s head for about a second, but still testified that she saw Grove step onto Sixth Avenue into the path of the bus.

Port Authority requested that the trial court instruct the jury regarding the Vehicle Code’s provisions for the duties of care for pedestrians attempting to establish negligence per se.  The trial court refused, reasoning that since Grove was not charged with violation of the vehicle code, the instruction was not proper.

The jury apportioned 50% negligence to each party.  Port Authority argued in post-trial motions for a new trial because of the trial court’s refusal to instruct the jury on negligence per se.  The trial court denied the motion.  It reasoned that because the jury found Grove negligent, it would have made no difference to instruct the jury on negligence per se as negligence per se encompasses only the elements of duty and breach rather than causation. Had the jury found Grove negligent per se it still would have had to factor in her comparative negligence. Therefore, the trial court determined that the Port Authority suffered no prejudice because of the trial court’s refusal to charge the jury on negligence per se, and it committed no error in declining to instruct the jury on negligence per se.

Commonwealth Court reversed and remanded for a new trial.  The court reasoned that failure to instruct the jury on negligence per se was reversible error for four reasons.

First, whether Grove was charged with violation of the Vehicle Code was irrelevant.  The court relied on Hannon v. City of Phila., 587 A.2d 845, 851 (Pa. Cmwlth. 1991) (“Contrary to [the appellant’s] claims, evidence of violation of a statute, such as the Vehicle Code here, may constitute negligence per se, irrespective of the criminal penalties contained therein or whether there has been a conviction thereunder.”).

Second, a negligence per se instruction and Vehicle Code provisions were relevant to the jury’s determination on apportionment of comparative negligence.  The court explained there are no limitations on what the jury may consider in apportionment.  Thus, the jury could consider the number and type of specific duties violated in addition to the general duty of a reasonable person to protect herself and others.

Third, the court found it telling that during deliberations the jury had expressly asked “[W]hat is the pedestrian right of way law in the City of Pittsburgh?” Yet, the trail court in response informed the jury that the right-of-way law was not an issue in the case.  Commonwealth Court stated:

Here, despite seeking clarification as to a critical issue in the case, the right-of-way law, the trial court declined to provide accurate, relevant legal instructions contained in the Vehicle Code relating to the duties of care of pedestrians. There is a substantial possibility that the trial court’s refusal to provide these requested instructions, coupled with the trial court’s statement that the right-of-way law was not an issue in this case, influenced the jury’s apportionment deliberations. Indeed, the fact that the jury specifically requested guidance on this issue signifies the importance of the instruction, and the refusal to provide the requested guidance cannot be declared absolutely harmless.

Fourth, the court rejected the argument that the failure to instruct was harmless error given that the jury found Grove 50% negligent.  The court reasoned that because the jury could have considered various types of duties that Grove violated in choosing a percentage of negligence to apportion, instructing on negligence per se and the Vehicle Code could have changed the percentage the jury apportioned.  Notably, if Grove had been found 1% more negligent, she would not be entitled to recover damages.

Judge Pellegrini dissented.  He reasoned that because how a jury finds that a party breached a duty of care (ie. negligence and/or negligence per se) makes no difference in determining the factual cause of the injury, which is the relevant determination for apportionment.  Judge Pellegrini relied on Pennsylvania Standard Jury Instruction 13.180 (Civ. 2017), which charges the jury with attributing the negligent conduct of each party to the factual cause of the harm to determine the percentage that each party is responsible for those injuries.

Judge Pellegrini disagreed with the majority’s reasoning, based on the Subcommittee Note to Pa. SSJI (Civ) 13.190, that there are no limits to what a jury can consider when determining apportionment.  He explained the majority’s reasoning suggests that if conduct can be considered a breach of duty under both negligence-in-fact and negligence per se, the factual cause of the injuries is somehow increased even though the underlying conduct is the same.

The Supreme Court granted allocatur on the following issue:

Did the Commonwealth Court misapprehend basic fundamentals of tort law by holding that the failure to give a per se negligence charge where the jury still found [Petitioner] to be negligent even without the benefit of such charge was somehow relevant to the apportionment of factual cause?

For more information, contact Kevin McKeon or Dennis Whitaker