Opinion
No. 31 WAP 2018 No. 32 WAP 2018
10-31-2019
Joan P. GROVE, Appellant v. PORT AUTHORITY OF ALLEGHENY COUNTY, Appellee Joan P. Grove, Appellant v. Port Authority of Allegheny County, Appellee
OPINION
Appellant, Joan P. Grove, was awarded a jury verdict of $250,000.00 in the Court of Common Pleas of Allegheny County, in a personal injury action against Appellee, Port Authority of Allegheny County. On appeal, the Commonwealth Court vacated the award of damages and remanded for a new trial on the basis that the trial court erred in failing to instruct the jury on negligence per se . We granted allocatur to determine whether the trial court's failure to give a negligence per se charge, where the jury nevertheless found Grove negligent, amounted to error because the negligence per se charge was relevant to apportionment of factual cause.
On Friday, June 16, 2014, Grove was walking on a sidewalk on Sixth Avenue in the City of Pittsburgh. Grove was heading in the direction of Montour Way, an alley, which runs perpendicular to Sixth Avenue. Grove intended to cross over Montour Way and continue down the sidewalk on Sixth Avenue. A stationary car was stopped in the crosswalk on Montour Way facing toward Sixth Avenue. Grove and a second pedestrian, Dante Anglin, both were walking in the same direction and crossed Montour Way at approximately the same time. In order to maneuver around the car in the crosswalk, Anglin walked around the front of the car moving left in the direction of Sixth Avenue to cross. Grove walked slightly to the left of Anglin and also around the car to cross Montour Way.
At the same time Grove and Anglin were crossing Montour Way by traversing around the stationary vehicle occupying the crosswalk, a car traveling in the same direction as Grove and Anglin on Sixth Avenue was stopped, presumably to make a left turn. Contemporaneously, a Port Authority bus, driven by Betty Cunningham, was traveling down Sixth Avenue in the same direction as the turning car, Grove, and Anglin. Cunningham was intending to stop the bus at the corner of Sixth and Smithfield Street, just past Montour Way. As Cunningham maneuvered the bus around the right side of the car stopped on Sixth Avenue, she struck Grove who was crossing Montour Way.
The bus knocked Grove to the ground, and drove over her right leg. Cunningham was unaware she had struck a pedestrian until a passenger on the bus alerted her and yelled that someone had been hit. As a result of the accident, Grove underwent several surgeries, ultimately having her leg amputated from the knee down.
Grove filed a complaint asserting a claim of negligence against Port Authority. Port Authority filed an answer denying liability and claiming governmental immunity pursuant to Section 8541 of the Judicial Code, 42 Pa.C.S. § 8541. A jury trial commenced on September 26, 2016. At trial, several witnesses testified for each side. Additionally, photographic and video evidence of the incident, as well as medical evidence of Grove's injuries were presented to the jury.
At the conclusion of the trial, both sides participated in a charging conference. Relevant to the instant matter, Grove requested the trial court instruct the jury regarding Cunningham's violation of the Vehicle Code for overtaking a vehicle on the right "unless the movement can be made in safety." Plaintiff's Proposed Points for Charge, 9/25/16 at ¶ B.1. Port Authority specifically requested a negligence per se charge be read to the jury. Port Authority also requested the trial court instruct the jury on four Vehicle Code provisions pertaining to duty of care and negligence per se. Defendant's Proposed Points for Charge, 9/26/16, at 1. The trial court declined to read any of these proposed instructions. In so doing, the trial court noted that Grove was not cited for violating any of the statutory provisions that Port Authority requested.
The entirety of the statute referenced is as follows:
§ 3304. Overtaking vehicle on the right
(a) General rule. The driver of a vehicle may overtake and pass upon the right of another vehicle only under one of the following conditions:
(1) When the vehicle overtaken is making or about to make a left turn, except that such movement shall not be made by driving off the berm or shoulder of the highway.
(2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaken vehicle, except that such movement shall not be made by driving off the roadway.
(b) Limitation. No passing movement under this section shall be made unless the movement can be made in safety.
75 Pa.C.S. § 3304.
13.100 (CIV) VIOLATION OF STATUTE—NEGLIGENCE PER SE
The law provides: [quote relevant statutory provision] .
[name of plaintiff] claims that [name of defendant] violated this law .
If you find that [name of defendant] violated this law, you must find that [name of defendant] was negligent .
If you find that [name of defendant] did not violate this law, then you must still decide whether [name of defendant] was negligent because [he] [she] failed to act as a reasonably careful person would under the circumstances established by the evidence in this case .
Pa.S.S.J.I. (Civ) 13.100.
§ 3542. Right-of-way of pedestrians in crosswalks
...
(b) Exercise of care by pedestrian. No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute a hazard.
75 Pa.C.S. § 3542(b).
* * *
Ultimately, the following negligence charge was read to the jury:
Joan Grove claims she was injured by Port Authority of Allegheny County's negligent conduct. Joan Grove has the burden of proving her claim. Port Authority of Allegheny County denies Joan Grove's claim. In addition, as a defense, Port Authority of Allegheny County claims that Joan Grove was negligent and Joan Grove's own negligence was the factual cause in bringing about Joan Grove's own injury. Port Authority of Allegheny County has the burden of proving this defense.
The issues you must decide in accordance with the law as I give it to you are, was Port Authority of Allegheny County negligent? Was Port Authority of Allegheny County's negligent conduct a factual cause in bringing about the injury to Joan drove [sic]? Was Joan Grove also negligent? Was Joan Grove's negligent conduct also a factual cause in bringing about her own injury?
In this case, you must decide whether Port Authority of Allegheny was negligent. I will now explain what negligence is. A person must act in a reasonably careful manner to avoid injuring others. The care required varies according to the circumstances and degree of danger at a particular time.
You must decide how a reasonably careful person would act under the circumstances established by the evidence in this case. A person who does something a reasonably careful person would not do under the circumstances is negligent. A person also can be negligent by failing to act. A person who fails to do something a reasonably careful person would do under the circumstances is negligent.
In order for Joan Grove to recover in this case, Port Authority of Allegheny County's negligent conduct must have been a factual cause in bringing about harm. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.
To be a factual cause, the conduct must have been an actual, real factor in causing the harm, even if the result is unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor, having no connection or only an insignificant connection with the harm.
To be a factual cause, Port Authority of Allegheny County's conduct need not be the only factual cause. The fact that some other causes concur with Port Authority of Allegheny County's negligence in producing an injury does not relieve Port Authority of Allegheny County from liability, as long as its own negligence is a factual cause of the injury.
As a defense, the Port Authority of Allegheny County claims that Joan Grove's own negligence was a factual cause of her injury. Port Authority of Allegheny County has the burden to prove both of the following: That Joan Grove was negligent, and that Joan Grove's negligence was the factual cause of her injury.
If you find Joan drove's [sic] percentage of negligence is greater than 50 percent, Joan Grove cannot recover her damages. If you decide that both Joan Grove and Port Authority of Allegheny County were negligent and that the negligence of both parties was a factual cause of Plaintiff's injuries, you must then decide how much each party's negligence contributed to the plaintiff's injury. You should state each party's share
of the negligence in the form of a percent. Together these percentages must total 100 percent.
If you decide that Joan Grove's negligence was greater than 50 percent, then the plaintiff cannot recover. If you decide that Joan Grove's negligence was less than or equal to Port Authority of Allegheny County's then the plaintiff can recover for her injuries. You must then decide the dollar amount of Joan Grove's damages.
In determining Joan Grove's damages, do not consider the percent of Joan Grove's negligence. I will reduce Joan Grove's damages based upon the percent of negligence you have assigned to the parties.
N.T., 9/27/16, at 297-300; see also Pa.S.S.J.I. (Civ) 13.10.
During deliberations, the jury submitted three written questions to the trial court. Specifically, the jury asked the following three questions. "What is the pedestrian right of way law in the City of Pittsburgh?" N.T., 9/27/16, at 316. "Are we supposed to disregard Sixth Avenue conflicts on one or two lanes?" Id. at 322. "Which wheel ran over Ms. Grove's leg?" Id. at 323-324. Port Authority renewed its request that the trial court instruct the jury on the aforementioned Vehicle Code provisions. The trial court again declined, informing the jury that the "right of way law is not an issue in this case." Id. at 326. Further, as to question two, the court informed the jury "there was no evidence introduced in this case to prove Sixth Avenue was by law one or two lanes going in the same direction as the bus traveled[,]" and as to question three, "your collective recollection of the evidence controls."
After answering the jury's questions, the jury was dismissed for the day. Counsel for Port Authority renewed its request for the additional instructions on negligence per se via email before trial reconvened on September 28, 2016. The trial court again denied the request on the record that morning.
On September 28, 2016, the jury reached a verdict, finding Grove and Port Authority each 50% negligent. The Foreperson read the verdict sheet and the jury's answers into the record.
Was the negligence of the Port Authority of Allegheny County a factual cause of any harm to Joan Grove? Yes. Was Joan Grove negligent? Yes. Was Joan Grove's negligence a factual cause of harm to her? Yes. Taking the combined negligence of what was a factual cause of any harm to Joan Grove as 100 percent, what percentage of negligence do you attribute to Joan Grove, and what percentage do you attribute to Port Authority of Allegheny County? Percentage of negligence attributed to Joan Grove, 50 percent. Percentage of negligence attributed to Port Authority of Allegheny County, 50 percent. If you have found percentage is greater than 50 percent, Joan Grove cannot recover, and you should not answer any of the further questions.
Id. at 334.
The jury awarded damages of $2,731,000.00 to Joan Grove. Taking into account Grove's contributory negligence, the trial court molded the verdict, reducing it by half to $1,365,500.00. Further, because of the statutory cap on Port Authority's negligence as a Commonwealth agency, the verdict was molded to $250,000.00. 42 Pa.C.S. § 8528(b) ("Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000 ....").
Port Authority filed a post-trial motion seeking a new trial. Port Authority argued the trial court "erred in refusing to instruct the jury at multiple opportunities on the pedestrian duties of care and right-of-way laws specifically outlined in [Port Authority's] Proposed Points for Charge." Post-Trial Motion, 10/7/16 at ¶ 8. Port Authority cited the jury's request for guidance on law applicable to the facts, and asserted the court erred when it "refused to provide the jury the relevant law directly on point to the factual issue it was deciding thereby depriving it of the ability to apply the correct law to the facts." Id.
Port Authority's post-trial motion indicated it "[s]pecifically[ ] requested Pennsylvania Suggested Civil Jury Instructions Standard Charge 13.100 on Negligence Per Se and cited three sections from the Pennsylvania Motor Vehicle Code which address the care, duties and right-of-way of pedestrians. 75 Pa. C.S. §§ 3542 -3544."
A hearing was held, and on November 14, 2016, the trial court denied Port Authority's motion for post-trial relief. Port Authority timely appealed to the Commonwealth Court challenging the trial court's decision not to instruct the jury on negligence per se and the enumerated statutes of the Motor Vehicle Code. Grove filed a cross-appeal contending the delay damages should have been calculated based on the molded verdict amount of $1,365,500.00, not on the molded verdict of $250,000.00. In a Rule 1925(a) opinion, the trial court explained its reasoning for denying Port Authority's post-trial motion and for calculating delay damages based on the $250,000.00 statutory cap.
Additionally, that same day, the trial court granted Grove's motion for delay damages in the amount of $11,444.64, based on the molded verdict of $250,000.00.
Citing to Sodders v. Fry , 32 A.3d 882 (Pa. Cmwlth. 2011), the trial court noted that "a negligence per se instruction is a negligence charge, not a causation charge[, t]herefore, the most a negligence per se instruction can do is to lead a jury to find that one party or another is negligent." Trial Court Op., 4/25/17, at 6. The court went on to emphasize the jurors had four tasks: (1) determine if each party was negligent; (2) determine if each party's negligence was a factual cause of the accident; (3) determine comparative percentages of each party's causal negligence; and (4) determine damages. As such, the court reasoned, "the most a negligence per se instruction could have done for [Port Authority] in this case would have been to lead the jury to find [Grove] negligent." Id. at 17. Thus, the court concluded, because the jury found Grove negligent, the absence of the per se charge did not impact the jurors' negligence determination. Further, because the jury found Grove negligent, the failure to give the charge could not have been prejudicial error. The trial court proceeded to compare the instant matter to Sodders , noting that in Sodders , the court did not give a negligence per se charge either, but the jury did not find the defendant negligent, and the trial court granted Sodders post-sentence motion on the basis that harm did result. Finally, the court noted, the jury instructions read as a whole "fairly, accurately, and appropriately guided the jurors in determining negligence, causation, and damages." Id. at 11.
The trial court cited Allen v. Mellinger , 567 Pa. 1, 784 A.2d 762 (2011), to support its holding that "[d]elay damages against Commonwealth agencies are limited to those calculated based upon the statutory cap." Id. at 11, 784 A.2d 762.
On appeal, a divided panel of the Commonwealth Court reversed the trial court's order and remanded for a new trial based on the "trial court's failure to adequately charge the jury regarding the legal principles relevant to the jury's apportionment of comparative negligence." Grove v. Port Authority , 178 A.3d 239, 241 (Pa. Cmwlth. 2018), appeal granted , 193 A.3d 343 (Pa. 2019). The Commonwealth Court began by noting a trial court must follow a two-step process in determining whether to grant a new trial. First it must determine whether one or more mistakes occurred at trial, and second, if a mistake occurred, determine whether the mistake was a sufficient basis for granting a new trial. Id. at 243. Further, the court noted "the harmless error doctrine underlies every decision to grant or deny a new trial." Id. In turn, an appellate court must then examine the decision of a trial court to determine whether an error of law or an abuse of discretion occurred. If there are no mistakes, the appellate court must affirm.
Based on its holding, the Commonwealth Court dismissed Grove's cross-appeal as moot.
The Commonwealth Court then noted jury instructions must be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury in its deliberations. Id. at 244 (citing Von der Heide v. Dep't of Transp. , 553 Pa. 120, 718 A.2d 286 (1998) ). "[H]ere, the trial court charged the jury on general negligence, comparative negligence, and the apportionment of comparative negligence." Id. at 245. The court then reviewed the instructions given and determined "contrary to the trial court's determination, the negligence per se instruction, coupled with the duties of care for pedestrians set forth in the Vehicle Code were relevant to the jury's apportionment of comparative negligence here." Id. at 247. The court concluded:
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.
Id. at 249. Further, without analysis or citation to legal authority, the court disagreed with the trial court's finding that the failure to instruct on negligence per se was harmless error because the jury found Grove negligent. Id. In a conclusory statement, the Commonwealth Court opined that "consideration of the specific duties of care of pedestrians could have impacted the jury's determination as to how to apportion comparative negligence here." Id. at 249-250.
Senior Judge Pellegrini, dissenting, stated "[b]ecause how a jury finds that a party breached a duty of care makes no difference in determining the ‘causal connection’ - i.e. , factual cause of the injury - and the majority holds that it does, I respectfully dissent." Id. at 250. Further, Judge Pellegrini noted although he agreed with the majority that "the trial court should have given the negligence per se instruction, it was harmless error because to give such a charge would not have made a difference in determining the percentage of factual cause for comparative negligence purposes." Id. at 252. This Court granted allocatur limited to 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 [Grove] to be negligent even without the benefit of such charge was somehow relevant to the apportionment of factual cause?
Grove v. Port Authority , 193 A.3d 343 (Pa. 2019).
Grove first argues the trial court did not err in determining a negligence per se charge was unnecessary. She asserts the Commonwealth Court erred in holding that a per se negligence charge may have affected the apportionment of negligence as it is "contrary to the basic principles of tort law which considers breach of duty as an entirely separate issue from causation." Grove's Brief at 17. Grove emphasizes that in order to recover in a negligence case, the plaintiff must prove (1) that the defendant owed a duty to the plaintiff, (2) that the defendant breached that duty, (3) that the breach of duty was the ‘proximate’ or ‘legal’ cause of the accident, and (4) the plaintiff suffered an actual loss or damage." Id. at 18 (citing Commonwealth Dep't of Pub. Welfare v. Hickey , 136 Pa.Cmwlth. 223, 582 A.2d 734, 736 (1990) ). Grove argues a per se charge relates only to whether she breached a duty of care, and that "[e]ven if the jury found that a statute had been violated and the party was negligent per se , it still had to determine if such a violation was a factual cause[.]" Id. at 21. Grove argues the Commonwealth Court's holding gives greater weight to negligence per se than negligence determined by some other means. Id. She asserts, Pennsylvania courts have expressly rejected this, and cites to White by Stevens v. SEPTA , 359 Pa.Super. 123, 518 A.2d 810, 818 (1986), noting, "to emphasize per se negligence ‘would be to carve out one group of cases, those involving negligent per se plaintiffs, and as to them alone, reinstate contributory negligence as an automatic bar to recovery.’ " Id. at 21-22
Second, Grove asserts, if the trial court did err in refusing to give a per se negligence instruction, such error was harmless as the jury found Grove was negligent. In support of her argument, Grove cites to Gravlin v. Fredavid Builders and Developers , 450 Pa.Super. 655, 677 A.2d 1235 (1996), wherein the plaintiff requested a negligence per se charge based on the defendant's alleged violation of a state statute. The trial court denied plaintiff's request; nevertheless, the jury found both parties 50% negligent. Upon review, the Superior Court held:
[T]here is nothing ... about a finding of negligence per se, which removes the comparative negligence issue from the jury's consideration.
The Comparative Negligence Statute, 42 Pa.C.S.A. § 7102 reads in pertinent part as follows:
(a) General Rule. —In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff ... where such negligence was not greater than the causal negligence of the defendant ... against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
Just as the connection must be made between appellee's conduct and any ensuing injury, appellant's conduct too must be scrutinized. Consideration of appellant's own responsibility for the accident
would not have been removed by the finding of liability per se on appellee's part.
Gravlin , 677 A.2d at 1239. Grove then argues a per se charge takes the question of whether the conduct amounts to negligence out of the jury's hands, but has no bearing on the extent to which the conduct contributed to the factual cause. Grove's Brief at 23. Grove asserts Port Authority was not prejudiced by the trial court's failure to charge the jury on negligence per se . "Prejudice would have been present only if the jury found that Plaintiff was not negligent, but here they did just the opposite and, hence, the alleged ‘error’ caused no harm." Id. at 25.
Finally, Grove argues Port Authority was not precluded from arguing Grove was solely at fault for allegedly entering the street in front of the bus. Grove notes that Port Authority argued this point at length in both its opening and closing statement, but that the jury ultimately disagreed finding both parties contributed equally to the cause of the accident.
Port Authority responds by asserting the Commonwealth Court properly held the trial court's failure to instruct the jury on negligence per se and the Vehicle Code provisions was not harmless error. Port Authority relies upon two cases to support its argument, Learn v. Vivian , 404 Pa. 339, 171 A.2d 783 (1961), and Sodders , supra . Port Authority Brief at 11. In Learn , the plaintiff was struck in a crosswalk by a driver turning a corner. The plaintiff requested a charge based on a provision of the Vehicle Code addressing the duty of a driver while turning, but the trial court denied the request. The jury found defendant was not negligent. In Sodders , the plaintiff was involved in a collision with the defendant, a police officer. Both parties requested an instruction on negligence per se and two applicable sections of the Vehicle Code. The trial court denied the negligence per se request but instructed the jury on negligence, contributory negligence, factual cause, and read the applicable sections of the Vehicle Code. The jury found defendant was not negligent. On appeal, both cases were reversed based on the erroneous instructions to the jury on the duty of care owed by the defendants. Port Authority argues that because here the trial court refused to instruct the jury on negligence per se and refused to read the relevant sections of the Vehicle Code, the trial court committed reversible error. Port Authority Brief at 12. Port Authority asserts that the failure to instruct the jury on the laws applicable to Grove's conduct "directly impacts the degree and extent of negligence of [Grove]." Id. at 13. Port Authority further posits "the violation of multiple statutes by [Grove] would have impacted the percentage of Grove's comparative causal negligence." Id. Therefore, Port Authority argues that this error was not harmless.
We presently review the Commonwealth Court's grant of a new trial. The Commonwealth Court "is obligated to apply an abuse of discretion standard in reviewing a trial court's denial of a motion for a new trial, and may overturn the trial court's determination only if that court abused its discretion." Ball v. Bayard Pump & Tank Co. , 620 Pa. 289, 67 A.3d 759, 767 (2013) (citation omitted). "It is well settled that in reviewing a challenge to a jury instruction the charge, as a whole, must be considered. Furthermore, the trial court has broad discretion in phrasing the instructions, so long as the directions given ‘clearly, adequately, and accurately’ reflect the law." Commonwealth v. Lesko , 609 Pa. 128, 15 A.3d 345, 397 (2011) (citation omitted). "Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. A charge will be found adequate unless ‘the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.’ " Stewart v. Motts , 539 Pa. 596, 654 A.2d 535, 540 (1995) (citations omitted). Further, "[a] reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. In reviewing a trial court's charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety." Id. "The harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake." Harman ex rel. Harman v. Borah , 562 Pa. 455, 756 A.2d 1116, 1122 (2000).
Upon review of the Commonwealth Court's opinion, we cannot discern a fundamental error or prejudicial omission upon which the majority based its decision to reverse the trial court's denial of Port Authority's post-trial motion. Our law is clear, an appellate court will not grant a new trial absent a finding of a fundamental error or prejudicial omission. Stewart , 654 A.2d at 540. At no point did the Commonwealth Court affirmatively conclude that the failure to give a negligence per se instruction would have impacted the outcome, but rather the court engaged in speculation that the omission of the instructions could have impacted the jury's apportionment decision. See Grove , supra at 249-250 ("There is a substantial possibility that the trial court's refusal to provide these requested instructions ... influenced the jury's apportionment deliberations"; "the jury could consider the number and type of specific duties [Appellant] may have violated"; "consideration of these specific duties of care of pedestrians could have impacted the jury's determination as to how to apportion the comparative negligence here.").
In addition to failing to indicate a precise fundamental error or prejudicial omission, the Commonwealth Court's opinion does not address or reconcile the trial court's conclusion that any omission of a negligence per se charge was harmless error as the jury had made the determination Grove was negligent. A negligence per se charge only relates to the first two elements of negligence, duty and breach of that duty. As the jury ultimately found Grove negligent, it necessarily concluded that she had a duty of care and breached that duty. Thus, any omission of a negligence per se charge was not a fundamental error and Port Authority was not prejudiced. "The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff." Bilt-Rite Contractors, Inc. v The Architectural Studio , 581 Pa. 454, 866 A.2d 270 (2005) (citing Althaus ex rel. Althaus v. Cohen , 562 Pa. 547, 756 A.2d 1166, 1168 (2000) ). "In a typical injury case, the plaintiff must prove all of the following elements of negligence: (1) the defendant owed the plaintiff a duty or obligation recognized by law; (2) the defendant breached that duty; (3) a causal connection existed between the defendant's conduct and the resulting injury; and (4) actual damages occurred." Sodders , 32 A.3d at 887 (citations omitted). "Proof that an applicable statute exists and that the defendant violated that statute establishes only the first two elements of negligence—duty and breach. ‘The law is well settled, however, that even having proven negligence per se , a plaintiff cannot recover unless it can be proven that such negligence is the ‘proximate’ or ‘legal’ cause of the injury.’ " Id. (citations omitted).
The circumstances of the present matter are distinguishable from the cases relied upon by Port Authority, Learn and Sodders . In each of those cases the failure to give a negligence per se instruction resulted in the jury failing to find the defendant negligent. Therefore, in both cases the error was not harmless and a new trial was granted. Neither Learn or Sodders suggest that negligence per se has any bearing on apportionment of factual cause. "The law is well settled, however, that even having proven negligence per se , a plaintiff cannot recover unless it can be proven that such negligence is the ‘proximate’ or ‘legal’ cause of the injury." Sodders , 32 A.3d at 887.
Reviewing the trial court's instructions as a whole, the trial court instructed the jury on negligence, Pa. S.S.C.J.I. (Civ) § 13.10, apportionment of factual cause, Pa. S.S.C.J.I. (Civ) § 13.20, and apportionment of comparative negligence, Pa. S.S.C.J.I. (Civ) § 13.190. Further, it instructed the jury that if Grove's negligence was greater than Port Authority's, then Grove could not recover damages. Port Authority's argument is essentially that a negligence per se charge could have been given instead of the general negligence charge. While the trial court had discretion to grant Port Authority's request, ultimately a negligence per se instruction has no bearing on the instructions given pertaining to factual cause and comparative negligence. Port Authority asserts that it "presented evidence at trial that Grove violated the pedestrian duties of care in the Motor Vehicle Code which was a factual cause of her injuries." Port Authority Brief at 13. Port Authority then makes the leap that "[t]he trial court's refusal to instruct the jury on the laws applicable to Grove's conduct as a pedestrian directly impacts the degree and extent of negligence of Grove." Id. Port Authority fails to support this leap from duty to percentage of factual cause with any authority. Thus, Port Authority was not prejudiced by the trial court's decision not to instruct the jury on negligence per se , where despite the absence of the instructions, the jury found Grove negligent. It is well established that the question of the factual cause of Grove's injury is a separate inquiry and a question solely for the jury to consider. In fact, counsel for both parties presented evidence of the factual cause of the accident and argued vigorously in their closing statements that the other party's conduct was the factual cause of the accident.
As Judge Pellegrini noted in dissent,
[I]t is irrelevant how the jury found that [Grove] breached a duty - i.e., negligence-in-fact or negligence per se - because the jury's determination was made based on her conduct of encroaching on Sixth Ave. Once it has been found that there was a duty and it was breached, then the conduct of the parties are compared to determine what percentage each party's conduct was the factual cause for the injuries for which compensation was sought. The jury here, based on the respective conduct of the parties, found that each of them was 50% at fault for [Grove]'s injuries.
Grove , 178 A.3d at 255 (Pellegrini dissenting) (emphasis in original).
This Court granted review to determine whether the Commonwealth Court abused its discretion or committed legal error in determining the trial court's error was not harmless. We conclude it did. Because the jury found Grove negligent, any perceived error in failing to instruct on negligence per se was harmless error. Importantly, the Commonwealth Court did not make a finding of prejudice in its harmless error analysis; it merely opined the proposed instructions could have influenced the jury. "Harmless error exists if the record demonstrates either ... the error did not prejudice the defendant or the prejudice was de minimis[.]" Commonwealth v. Hairston , 624 Pa. 143, 84 A.3d 657, 671 (2014). The standard is not that the omitted instructions could have influenced the jury. Prejudice is required. A lack of any prejudice analysis undermines the Commonwealth Court's conclusion that the error was not harmless.
Accordingly, we reverse the Commonwealth Court's order reversing the trial court and granting Port Authority a new trial. This matter is remanded to the Commonwealth Court for disposition of Grove's cross-appeal.
Justices Baer, Todd, Donohue and Dougherty join the opinion.
Justice Baer files a concurring opinion in which Justices Donohue, Dougherty and Mundy join.
Justice Donohue files a concurring opinion.
Chief Justice Saylor and Justice Wecht file dissenting opinions.
JUSTICE BAER, Concurring
I join the majority opinion in its entirety. I write separately to emphasize what I view to be a substantial injustice, and perhaps a constitutional violation, arising from the application of the current statutory damages cap placed on awards in civil cases commenced against a Commonwealth agency. Joan Grove's net damages in this case, after reduction to account for the jury's finding of her own negligence, was $1,365,500.00, which was intended to compensate her for the loss of her leg that resulted from being struck by a bus owned and operated by the Port Authority of Allegheny County ("Port Authority"). As required by statute, the trial court reduced the verdict to $250,000.00 because the Port Authority is a Commonwealth agency. See 42 Pa.C.S. § 8528(b) (providing that "[d]amages arising [against the Commonwealth] from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000 in favor of any plaintiff or $1,000,000 in the aggregate").
A similar damages cap is included in Subsection 8553(b) of the Tort Claims Act with regard to tort claims against local agencies, providing that damages "shall not exceed $500,000 in the aggregate." 42 Pa.C.S. § 8553(b).
The Commonwealth Court did not, as I do hereinbelow, review the statutory provisions that the Port Authority claimed were relevant to the facts in this case. Instead, the court concluded that the trial court should have advised the jury of all of these statutory provisions on the grounds that they were relevant to the jury's comparative negligence analysis, a position with which the Majority and I strongly disagree, for the reasons set forth hereinbelow. Grove v. Port Auth. of Allegheny Cty. , 178 A.3d 239, 247 (Pa. Commw. 2018).
As the majority relates, the negligence per se charge proposed by Appellee incorporated a developed treatment of the specific statutes governing street crossings by pedestrians. See Majority Opinion, op. at 881 n.3. Not only are the duties particularized by the statutes, there are multiple duties of which the jurors should have been apprised. It seems to me to be likely that a jury which would find that a litigant disregarded multiple duties might be more inclined to attribute a higher degree of fault to that litigant. In any event, I believe that the nature of the duty (a generalized common law duty of due care versus specific statutory obligations) can be quite relevant to a jury's determination of the degree of negligence.
See Diss. Op. at 900–01 (Saylor, C.J., dissenting).
As explained infra , it has been my longstanding view that statutory caps of this nature, enacted approximately forty years ago, should be revisited and revised by the General Assembly to insure that residents of the Commonwealth receive fair compensation for injuries arising from the tortious conduct of a governmental entity. As each year passes, stagnant statutory caps fail to compensate victims of negligence adequately and grow ever more restricting of a plaintiff's ability to exercise his or her right to a jury trial as guaranteed by Article I, Section 6 of the Pennsylvania Constitution and the Seventh Amendment to the United States Constitution. While there is no challenge to the statutory cap in the instant appeal, this case provides an excellent example of why the Legislature should take action to elevate Pennsylvania's statutory caps to correspond with contemporary standards of living.
Article I, Section 6 of the Pennsylvania Constitution, entitled "Trial by jury," provides, in relevant part, that "[t]rial by jury shall be as heretofore, and the right thereof remain inviolate." Pa. Const. , art. I, § 6.
The Seventh Amendment to the United States Constitution, entitled "Trial by jury in civil cases," provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
U.S. Const. , amend. 7.
The limited nature of the trial court's actual error (as opposed to presumed error) is significant, particularly given the Chief Justice's contention that the trial court's failure to "instruct the jurors about highly material statutory provisions specifically defining multiple duties owed by Appellant" was sufficiently severe to require the grant of a new trial, which view is aligned with the Commonwealth Court's holding. Dissenting Op. at 901.
Indeed, the standard for post-conviction relief from a judgment of sentence in criminal cases based on unpreserved trial errors would appear to be less stringent than the would-have-affected requirement enforced by the majority here for preserved trial error in civil cases. In this regard, in terms of prejudice, a post-conviction petitioner need only demonstrate "a reasonable probability " of a different outcome. See Commonwealth v. Pierce , 515 Pa. 153, 157, 527 A.2d 973, 974 (1987) (quoting Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984) (emphasis added)).
The same dictionary describes behavior's synonyms as follows: "behavior, conduct, deportment . These nouns all pertain to a person's actions as they constitute a means of evaluation by others.... Conduct applies to actions considered from the standpoint of morality and ethics: ‘Life, not the parson, teaches conduct ’ (Oliver Wendell Holmes, Jr.)." Behavior , American Heritage College Dictionary (3d ed.).
This is not the first time that I have expressed this sentiment. Nearly five years ago, we rendered a decision in Zauflik v. Pennsbury School District , 629 Pa. 1, 104 A.3d 1096 (2014). There, the plaintiff suffered severe injuries, including the amputation of her leg, when a school bus accelerated out of control and struck twenty students. The plaintiff sued the Pennsbury School District, who owned and operated the bus and received a jury verdict of more than $14 million, which was molded to the $500,000.00 cap for local agencies set forth at 42 Pa.C.S. § 8553(b). See supra at 890 n.1. On appeal to this Court, the plaintiff presented various constitutional challenges to the statutory cap, including a contention that the cap violated her right to a jury trial as guaranteed by Article I, Section 6 of the Pennsylvania Constitution. This Court upheld the statutory cap, finding that the plaintiff did not demonstrate that the cap clearly, palpably, and plainly violated the constitution.
In my concurring opinion in Zauflik , I envisioned a scenario whereby a personal injury victim, based upon a developed record, could establish that the statutory cap on damages ($500,000.00 in Zauflik as the case was against a local agency; $250,000.00 here as the case is against a Commonwealth agency) violates the plaintiff's constitutional right to a jury trial by creating an onerous procedural barrier to that right. The concurrence relied upon this Court's decision in Application of Smith , 381 Pa. 223, 112 A.2d 625 (1955), which held that the right to a jury trial was not violated by a statute that required the payment of a fee to appeal an arbitrator's decision to the trial court where a jury trial could be conducted. Significantly, however, the Smith Court held that where a claim sought such a small amount of damages that the necessity of paying the arbitrators' fee would operate as an onerous restriction upon the exercise of the jury trial right, the local court rules should be amended to lower the arbitrators' fees to prevent the practical denial of that jury trial right. The Zauflik concurrence interpreted Smith as suggesting that "a statutory requirement that renders cost-prohibitive the exercise of the jury trial right violates Article I, Section 6." Zauflik , 104 A.3d at 1134 (Baer, J., concurring).
This concurring opinion was joined by Justice Todd and Justice Stevens.
The introductory phrase to section 3544(d) – "[e]xcept as otherwise provided in this subchapter" – obviously refers to section 3542(a), which indicates that "[w]hen traffic-control signals are not in place or not in operation, the driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection." 75 Pa.C.S. § 3542(a). Sections 3544(d) and 3542(a), taken together, indicate that the pedestrian has the right of way when inside of a crossway at an intersection or any other marked crosswalk, but vehicles on the roadway have the right of way when the pedestrian is not inside of a crosswalk.
Complicating the harmless error inquiry, in some cases, such as the present one, the assessment of whether a trial error is ultimately harmless may be steeped in credibility matters, which are generally outside the province of appellate courts which did not hear and see the witnesses. The fact that an appellant cannot secure a resolution of the credibility matters on appellate review, and thereby solidify a prejudice determination, should not serve to entrench verdicts infected by trial court error. Cf. Commonwealth v. Young , 561 Pa. 34, 87 & n.16, 748 A.2d 166, 194 & n.16 (2000) (Opinion on Reargument) (refusing to even consider harmless error in terms of whether a criminal verdict might be supported by overwhelming evidence when the appellant had placed material credibility matters in issue at trial, because credibility matters "are not within the province of an appellate court"). Rather, in these scenarios, the appellate courts' confidence in the verdict should be diminished and the appellant's burden thereby advanced.
Indeed, in the wake of this case, it may be advisable to amend the standard instruction to more carefully describe the constraints the Majority now has imposed upon a jury's deliberations with regard to the allocation of responsibility.
Considering the practicalities of litigating a catastrophic injury case against a political subdivision, the concurrence opined that "a victim of a political subdivision's negligence in a complicated case may be able to establish that the costs and fees of litigating the claim precluded counsel from accepting the case, thereby denying the victim the right to present the case to a jury." Id. at 1134-35. The concurrence further opined that plaintiffs' counsel could not responsibly agree to represent a client where there would be no recovery to the client, or a de minimus one, due to the litigation expenses and fees necessary to secure a verdict. Id. at 1135.
Emphasizing that the value of money in 2014, when Zauflik was decided, does not spend as it did in 1978, when the statutory cap at issue was enacted, and considering the extraordinary expenses incurred to litigate a complex case, this author called upon the General Assembly to render moot any future litigation challenging the constitutionality of the cap based on a proper record by enacting legislation to increase the statutory cap on damages. The concurrence opined that the Legislature's failure to adjust the statutory caps may have been inadvertent, and expressed the hope that the General Assembly would become cognizant of the oversight through the concurrence's expression.
Nearly five years have passed, and the General Assembly has not amended the relevant statutes to increase the cap on damages recovered against local governments or the Commonwealth to account for all realities, including simple inflation, that have occurred over the many decades since the statutory caps were enacted. I respect that it is the role of the Legislature, which has the greater capacity to evaluate complex questions of public policy, to establish limits on the liability of local governments and the Commonwealth in negligence cases. See Zauflik , 104 A.3d at 1123 (providing that "to the extent genuine questions might be raised regarding the amount of the cap, we note that such questions require detailed study and analysis of all relevant policy factors in a complicated balancing act that is properly addressed to the General Assembly") (emphasis removed). However, it is the role of this Court to protect our citizens' constitutional rights.
Accordingly, I again respectfully suggest that the Legislature consider the facts of this case, as well as those that have preceded it where its constituents have suffered devastating loss through the negligence of a local government or the Commonwealth and were denied fair compensation because of application of the statutory caps. I urge the General Assembly to take swift action to remedy the situation by increasing the statutory limits. In the event that the Legislature does not so act, this Court may be faced with a developed challenge to the statutory caps as violative of the constitutionally guaranteed right to a jury trial. If a plaintiff properly constructs a record to establish that the statutory caps place an onerous burden on his or her right to a jury trial, this Court may be compelled to strike the cap, which could leave the Commonwealth or the local governments exposed to full liability if, and until, new legislation is passed.
I note for illustrative purposes that when the Amtrak train derailment occurred in Philadelphia in 2015, killing eight individuals and injuring over two hundred passengers and crew, Congress acted swiftly to amend the statutory cap applicable to rail passenger transportation liability set forth in 49 U.S.C. § 28103, by adjusting the cap based upon the Consumer Price Index. See Act of Dec. 4, 2015, P.L. 114-94, Div A, Title XI, § 11415(b), 129 Stat. 1689-90 (effective 10/1/2015).
The Port Authority contends that, at a minimum, the trial court should have reconsidered and provided the requested negligence per se instructions when the jury posed written instructions to the trial court during its deliberations. In particular, the jury asked, "What is the pedestrian right of way law in the City of Pittsburgh?" The trial court responded that "[t]he right of way law is not an issue in this case." N.T., 9/27/2016, at 326.
This Court has stated, "where a jury returns on its own motion indicating confusion, the court has the duty to give such additional instructions on the law as the court may think necessary to clarify the jury's doubt or confusion." Worthington v. Oberhuber , 419 Pa. 561, 215 A.2d 621, 621 (1966). The trial court's response was an incorrect statement of the law, as rights of way clearly were a relevant issue in the case. In response to the jury's question, the trial court should have provided a negligence per se instruction with respect to section 3544(d), for the reasons discussed in the text.
Justices Donohue, Dougherty and Mundy join this opinion.
JUSTICE DONOHUE, Concurring
I join in the Majority Opinion. I write separately to explain my view of the trial court error in this case and to emphasize that the number of ways a party's conduct can be described as negligent has no bearing on the jury's determination of comparative negligence.
We granted review in this case to consider the question of whether the failure to give a negligence per se jury instruction was an error that "was somehow relevant to the apportionment of factual cause." Grove v. Port Auth. of Allegheny Cty. , 193 A.3d 343 (Pa. 2018). In my view, this review encompasses two distinct questions: first, whether the trial court erred in failing to give the four requested negligence per se instructions, and second, if there was error, whether a new trial is required. Reilly by Reilly v. SEPTA , 507 Pa. 204, 489 A.2d 1291, 1305 (1985) (in reviewing a jury charge for error, "we look to whether or not an error was committed and whether that error was prejudicial to the complaining party"). Both the Majority and the Chief Justice in dissent read our grant of allocatur to presume that the trial court erred in failing to give all four of the requested negligence per se instructions and proceed on that basis. As a result, the Majority and the Chief Justice answer only the second question, focusing exclusively on whether said (alleged) multiple errors prejudiced the Port Authority in the jury's comparative negligence analysis.
While I do not disagree that our grant of allowance of appeal can be fairly read to assume trial court error, in my view the Commonwealth Court's lack of analysis in its conclusion that the negligence per se charges were required1 creates confusion in this area of the law. Moreover I fear that the bench and bar may conclude that by not addressing the Commonwealth Court's conclusion regarding the trial court's error, we are blessing it. Thus, while I believe there was trial court error, for the benefit of preserving our established precedent on the issuance of per se negligence instructions, I analyze the question of whether there was trial court error.
In my view the trial court did not err in refusing to give all four negligence per se instructions, but rather erred only in failing to give one of the four instructions requested by the Port Authority.2 With respect to the second question, I join in the Majority's determination that the trial court's error was harmless, as it was not prejudicial to the Port Authority because the jury nevertheless found Grove negligent. Majority Op. at 888–89. I write separately on this issue to emphasize that when a jury deliberates with respect to comparative negligence, it is the conduct of the parties that is relevant to this inquiry, not the description of the conduct as either negligence or negligence per se.
Turning to the first question of whether the trial court erred in refusing to give the four negligence per se instructions requested by the Port Authority, we examine the jury charge as a whole to determine "whether the trial court committed a clear abuse of discretion or error of law[.]" Polett v. Pub. Commc'n, Inc. , 633 Pa. 445, 126 A.3d 895, 930 (2015). As the Superior Court stated in Ottavio v. Fibreboard Corp. , 421 Pa.Super. 284, 617 A.2d 1296, 1302 (1992) (en banc), as a general rule the refusal to give a requested instruction, if accurate, is ground for a new trial "unless the substance thereof has otherwise been covered in the court's general charge."
Error in a charge is sufficient ground for a new trial if the charge as a whole is
inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. [ Stewart v. Motts , 539 Pa. 596, 654 A.2d 535, 540 (Pa. 1995) ] (citing Glider v. Commonwealth Dept. of Hwys. , 435 Pa. 140, 255 A.2d 542, 547 (1969) ); see also Price v. Guy , 558 Pa. 42, 735 A.2d 668, 670–71 (1999) ("[E]rror will be found where the jury was probably mislead by what the trial judge charged or where there was an omission in the charge.").
Quinby v. Plumsteadville Family Practice, Inc. , 589 Pa. 183, 907 A.2d 1061, 1069–70 (2006).
The Port Authority requested the trial court to instruct the jury that Grove was negligent per se with respect to four sections of the Vehicle Code, 75 Pa.C.S. §§ 101 – 9805. In particular, the Port Authority sought a jury instruction in the following form:
75 Pa.C.S. § 3542
(b) Exercise of care by pedestrian, -No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute a hazard.
75 Pa.C.S. § 3543
(a) General rule. - Every pedestrian crossing a roadway at any point other than within a crosswalk at an intersection or any marked crosswalk shall yield the right-of-way to all vehicles upon the roadway.
75 Pa.C.S. § 3544
(a) Mandatory use of available sidewalk. - Where a sidewalk is provided and its use is practicable, it is unlawful for any pedestrian to walk along and upon an adjacent roadway.
* * *
(d) Right-of-way to vehicles. - Except as otherwise provided in this subchapter, any pedestrian upon a roadway shall yield the right-of-way to all vehicles upon the roadway.
Port Authority of Allegheny County claims that Joan Grove violated this law.
If you find that Joan Grove violated this law, you must find that Joan Grove was negligent.
If you find that Joan Grove did not violate this law, then you must still decide whether Joan Grove was negligent because she failed to act as a reasonably careful person would under the circumstances established by the evidence in this case.
Port Authority's Proposed Points for Charge, 9/26/2016, at 2. This charge closely tracks the language of Pennsylvania's Suggested Jury Instruction, Pa.S.S.J.I. (Civ) 13.100, which incorporates the statutory provisions upon which the negligence per se charge would be based.
The Subcommittee Note to the Pennsylvania Suggested Jury Instruction for Negligence Per Se, 13.100, indicates that "[t]his instruction is to be given when a statute specifically mandating certain conduct or prohibiting certain action is applicable." Pa.S.S.J.I. (Civ) 13.100 (subcommittee note). In determining whether the court committed an error of law in declining to give an instruction regarding negligence per se, we must examine whether the provision (1) is factually relevant to determining the duties of the parties, see, e.g. Learn v. Vivian , 404 Pa. 339, 171 A.2d 783 ( 1961), and (2) creates a standard of care more specific than the reasonable man standard for common law negligence, see, e.g. , Shamnoski v. PG Energy Div. of S. Union Co. , 579 Pa. 652, 858 A.2d 589 (2004).
First, in Learn , a case involving a pedestrian struck by a vehicle turning left at an intersection, the plaintiff-pedestrian introduced evidence to show that the defendant-driver had made a left turn from the wrong lane, i.e., from the right-most lane of the highway on which he had been traveling. The trial court refused to provide the jury with a charge based upon a statutory provision requiring a driver to make a left turn while keeping as close as practicable to the center of the intersection. Learn , 171 A.2d at 784. This Court indicated that an instruction on this statutory provision was important to inform the jury of the specific rights and duties of both the driver and pedestrian in this circumstance:
The Legislature in its wisdom has declared, so that motorists do not have to guess as to what is the safest way in which to make turns at intersections, that motorists intending to turn left at intersections, must, before reaching the intersection, be moving in a lane as close as possible to the center line. Because of the promulgation of this law, the pedestrian has the right to assume that if he sees a car at the extreme right of the street on which he is traveling, the driver has no intention of turning left into the intersection street.
Id. Because a negligence per se instruction would have informed the jurors with respect to the rights and obligations imposed by statute when a car is turning left while a pedestrian is crossing, this Court affirmed the trial court's grant of a new trial based upon its erroneous omission of the charge.
Second, in Shamnoski this Court clearly explained when a negligence per se instruction is required. We indicated that "[f]or a legislative enactment to be considered as ‘fixing a standard for all members of the community, from which it is negligence to deviate,’ the act must first of all provide[ ] that under certain circumstances particular acts shall or shall not be done." Shamnoski , 858 A.2d at 601 (quoting Beaver Valley Power Co. v. National Engineering & Contracting Co. , 883 F.2d 1210, 1221 (3rd Cir. 1989) ). The language of the statute must be scrutinized to decide whether it is sufficiently "specific as to leave little question that a person or entity found in violation of it deviated from a reasonable standard of care." Id. at 601-02. We observed, by way of example, that section 3361 of the Vehicle Code provided a very general rule to the effect that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing...." Id. We explained that because section 3361 did not identify any specific speeds that may be exceeded, it did no more than restate the reasonable man standard for common law negligence. Id. Conversely, section 3362 set forth the specific numeric limits on vehicle speed which every Pennsylvania driver must obey in all circumstances. Id. As such, a negligence per se instruction is appropriate for violations of section 3362, but not for section 3361.
With these foundational principles having been established, I turn to the present case. The Port Authority sought instructions incorporating the language of the four cited provisions of the Vehicle Code on which it sought to premise Grove's negligence per se, 75 Pa.C.S. §§ 3542(b), 3543(a), 3544(a), and 3544(d). Port Authority argues that it was entitled to an instruction based upon testimony at trial that Grove crossed Montour Way outside of the marked crosswalk, never looked for cars on Sixth Avenue and stepped directly onto Sixth Avenue into the path of a Port Authority bus without yielding the right of way. Port Authority's Brief at 10-11. By comparison, Grove argues that the statutory provisions referenced by the Port Authority do not support a negligence per se instruction in this case, because there was no evidence that Grove "intended ... or attempted to cross Sixth Avenue." Grove's Brief at 10. She further asserts that the Vehicle Code, and right-of-way provisions specifically, are not suitable for negligence per se because they do not impose absolute liability for violations. She argues that the jury "must still decide if the pedestrian exercised due care." Id. at 24-25.
Starting with 75 Pa.C.S. § 3542(b), this section of the Vehicle Code provides that "[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute hazard." 75 Pa.C.S. § 3542(b). The trial court did not err in declining to give a negligence per se charge on this statutory provision. The language of this section merely prohibits a pedestrian from moving into the path of a vehicle which is "so close as to constitute hazard," and in so doing merely advises pedestrians to act as a reasonable person would when moving close to an oncoming vehicle. This provision is thus not suitable for a negligence per se instruction because it only expresses the familiar and flexible reasonable man standard. Shamnoski , 858 A.2d at 602.
It was likewise not error to decline to give a negligence per se charge for 75 Pa.C.S. § 3544(a) to instruct the jury that "[w]here a sidewalk is provided and its use practicable, it is unlawful for a pedestrian to walk along and upon an adjacent roadway." 75 Pa.C.S. § 3544(a). The Port Authority does not explain the relevance of this section. When she was struck by the bus, Grove was crossing Montour Way, near an intersection and not alongside any sidewalk. Because there was no available sidewalk, this provision is simply inapplicable.
Next, section 3544(d) of the Vehicle Code provides that "[e]xcept as otherwise provided in this subchapter,3 any pedestrian upon a roadway shall yield the right-of-way to all vehicles upon the roadway." 75 Pa.C.S. § 3544(d). In my view, it was error for the trial court not to have given a negligence per se instruction with respect to this provision. Section 3544(d) indicates that where a pedestrian is on a roadway, she must yield the right of way to oncoming vehicular traffic on that roadway. The record here supports giving this instruction on at least two evidentiary bases. Meyer v. Union R. Co. , 865 A.2d 857, 866 (Pa. Super. 2004) (holding that a trial court should charge on a point of law when there is some factual support in the evidentiary record to support the charge). First, there was substantial testimony, including from both of the non-party witnesses, that Grove, upon leaving the crosswalk on Montour Way, ventured onto Sixth Avenue, at which time she was struck by the Port Authority bus traveling on Sixth Avenue. N.T., 9/21/2016, at 9 (Dante Anglin); N.T., 9/27/2016, at 166-67 (Joyce Broadwick). Alternatively, Grove testified while she left the crosswalk on Montour Way, she nevertheless remained at all times on Montour Way and was struck by the Port Authority bus when it encroached onto Montour Way. N.T., 9/21/2016, at 45. In either instance, it was within the jury's province to conclude that Grove and the Port Authority bus were on the same roadway and that Grove, without looking behind her for oncoming traffic, failed to yield the right of way to the bus. As a result, it was error for the trial court not to give a negligence per se instruction, since without it the jury was left without knowing that Grove, rather than the Port Authority bus, had the legal obligation to yield the right of way. See Jenkins v. Wolf , 911 A.2d 568, 571 (Pa. Super. 2006). Without knowing which party had the right of way, the jury was left with the wrong impression that both the pedestrian and the bus had the same obligation to look out for each other. Id.
Section 3543(a) of the Vehicle Code mandates that "[e]very pedestrian crossing a roadway at any point other than within a crosswalk at an intersection or any marked crosswalk shall yield the right-of-way to all vehicles upon the roadway." Section 3543(a) arguably would apply in the circumstance presented by Grove's testimony, namely where she remained on Montour Way (but outside of the crosswalk) and was hit by the Port Authority bus after it veered off of Sixth Avenue onto Montour Way. It was not error for the trial court not to provide a negligence per se instruction, however, as it would have been merely cumulative of an instruction pursuant to section 3544(d), which likewise covers this same sequence of events and would have provided no additional guidance to the jury with respect to the right of way. It is not an abuse of discretion or an error of law for a trial court not to provide a jury instruction cumulative of other jury instructions. Stewart v. Motts , 608, 539 Pa. 596, 654 A.2d 535, 541 (1995).4
Since in my view the trial court erred in its failure to give a negligence per se instruction with respect to section 3544(d), I turn to the second question on which this Court granted discretionary review – namely whether the failure to give the requested instruction resulted in prejudice to the Port Authority such that a new trial is required. The Commonwealth Court determined that "the negligence per se instruction, coupled with the duties of care for pedestrians set forth in the Vehicle Code were relevant to the jury's apportionment of comparative negligence here." Grove , 178 A.3d at 247. It described apportionment as a practical and case-specific inquiry which allows the jury to consider "all circumstances," including "the number and type of specific duties violated in addition to the general duty of a reasonable person to protect herself and others." Id. at 248. Therefore, it found that the failure to instruct the jury could have impacted the jury's determination as to how to apportion negligence. Id.
Judge Pelligrini dissented. He expressed the view that the trial court should have given the negligence per se charge, but that its failure to do so did not result in any prejudice that would necessitate the grant of a new trial. Grove , 178 A.3d at 252 (Pellegrini, J., dissenting). He explained that the distinction between negligence per se and negligence is irrelevant to determining causation because it is the "conduct" that factually causes the injury. Accordingly, Grove's stepping on Sixth Avenue when she moved outside of the crosswalk on Montour Way was the conduct that contributed to the injuries, regardless of whether that conduct was categorized as negligence or negligence per se. Id. Judge Pellegrini challenged the majority's position that the comparative negligence apportionment charge (i.e., Pa.S.S.J.I. (Civ) § 13.190) allows the jury to consider all circumstances without limitation in determining how to apportion causation, including, "the number and type of specific duties violated[.]" Id. at 254 (citing id. at 248 ). Although the "jury may make common-sense determinations" to apportion causation, the jury is directed to focus on the underlying conduct and not the description of the conduct as negligence or negligence per se. Id. at 254-55. Judge Pellegrini also pointed out that the majority only cited to one case in support of its conclusion that causation can vary based upon the categorization of negligence, White by Stevens v. Southeastern Pennsylvania Transportation Authority , 359 Pa.Super. 123, 518 A.2d 810, 818 (1986) (citing Johns v. Secress , 106 Ga.App. 96, 126 S.E.2d 296, 298 (1962) ). However, he correctly noted that the case only recognizes that it is within the exclusive province of the jury to apportion negligence and provides no support for the majority's position that the jury may actually consider the number of instances of negligence in apportioning negligence.
In reversing the Commonwealth Court, the Majority faults the Commonwealth Court for failing to conduct a genuine prejudice analysis. Majority Op. at 889–90. Specifically, the Majority critiques the Commonwealth Court's determination that the omission of the negligence per se instruction "could have impacted the jury's apportionment decision" as a finding which falls short of the legal requirement that the appellate court must affirmatively conclude that the omission of the instruction "would have impacted the outcome." Id. at 888 (emphasis in original). Next, the Majority determines that "any omission of a negligence per se charge was not a fundamental error and Port Authority was not prejudiced" in this case, because the jury – despite the lack of instruction regarding negligence per se – ultimately found Grove negligent. Id. at 888–90. The Majority emphasizes the elements of negligence, drawing attention to the fact that the categorization of negligence impacts the duty and breach requirements, but has no bearing on the latter two elements, which require consideration of causation and comparative negligence. Id. at 888–90.
I agree with the Majority's analysis. I would also emphasize that the Commonwealth Court mischaracterized the nature of the apportionment determination as one which allows the jury to consider "all circumstances," including "the number and type of specific duties violated in addition to the general duty of a reasonable person to protect herself and others." Grove , 178 A.3d at 248. As Judge Pellegrini cogently explained, the instruction on negligence per se merely assists the jury in categorizing certain conduct as negligent, it does not aid the jury in determining whether that conduct contributed to the injury. See Ford v. Philadelphia Housing Authority , 848 A.2d 1038, 1050 n.11 (Pa. Commw. 2004) (providing that negligence per se establishes duty and breach but does not answer the question of causation). Thus, the jury was not entitled to consider "all circumstances" including "the number and type of specific duties violated[,]" Grove , 178 A.3d at 248, but instead, was required to focus on whether the conduct actually caused the injury when it was apportioning negligence.
Put plainly, conduct causes an injury, not the categorization of the conduct as negligence or negligence per se. As stated by Judge Pellegrini, "[f]actual cause is determined by comparing the ‘conduct’ of the parties." Grove , 178 A.3d at 254. Indeed, this Court has explained the same principle:
A finding of negligence per se does no more than satisfy plaintiff's burden of establishing that a defendant's conduct was negligent. See , Section 288 B of the Restatement of Torts Second; Prosser , Torts Ch. 5 § 36 pp. 200-201 (4th ed. 1971). However, the burden remains upon plaintiff to establish that his complained of injuries were proximately caused by the statutory violations. Kaplan v. Kaplan , 404 Pa. 147, 171 A.2d 166 (1961).
Congini by Congini v. Portersville Valve Co. , 504 Pa. 157, 470 A.2d 515, 518 n.4 (1983) (holding that hosts of a party who served a minor with alcoholic beverages until the point of intoxication were negligent per se in serving that alcohol). Likewise, the Pennsylvania Suggested Jury Instructions articulates this concept by stating that, in order to recover, the plaintiff's "conduct must have been a factual cause in bringing about harm." Pa.S.S.J.I. (civ) 13.20 (emphasis added). Here the trial court properly instructed this jury that "[t]o be a factual cause, the conduct must have been an actual, real factor in causing the harm." N.T., 9/27/2016, at 299. Thus, "[i]n determining factual cause, it does not matter how a plaintiff breached a duty of care (e.g., negligence per se or just plain negligence) because the factual cause of injury is the same – here, negligently walking on Sixth Avenue." Grove , 178 A.3d at 254.
"Negligence per se" is simply a label for the conduct. It functions as a shortcut for the jury to resolve the question of negligence simply based upon violation of a specific and relevant law. However, once the jury resolves that question and finds negligence per se, the label has no further usefulness. The label itself has no bearing on the jury's consideration of causation, which depends entirely on its view of the conduct.
In this case, because under any description of Grove's conduct, the jury's determination was based on her encroaching into Sixth Avenue without looking behind her, the categorization of the conduct with the labels "negligence" or "negligence per se" could have no legitimate impact on the causation determination. The Commonwealth Court was incorrect to suggest that the jury could consider "the number and type of specific duties violated" when it was apportioning negligence. Grove , 178 A.3d at 248. Determining the comparative negligence of the parties is not a matter of counting the number of ways that the negligence of each of the parties may be characterized. Instead, the jury was required to focus its consideration on whether the conduct (no matter how categorized) was "an actual, real factor in causing the harm." N.T., 9/27/2016, at 299.
CHIEF JUSTICE SAYLOR, dissenting
Had the trial court instructed the jury concerning the substantive law governing the conduct of pedestrians, and were this case merely about the failure of the trial court to discuss negligence per se with the jurors, I might agree with the outcome directed by the majority. But the fact of the matter is that the trial court's refusal to tell the jury the legislatively prescribed rules by which Appellant's conduct should be measured -- despite Appellee's repeated protestations and the jury's explicit inquiry -- plainly deprived the jurors of essential direction material to their assessment of the extent of Appellant's negligence. Accord Grove v. Port Auth. of Allegheny Cty. , 178 A.3d 239, 246-48 (Pa. Cmwlth. 2018) ("[T]he negligence per se instruction, coupled with the duties of care for pedestrians set forth in the Vehicle Code were relevant to the jury's apportionment of comparative negligence here." (emphasis added)).1 The error of omission was, of course, exacerbated by the trial court's affirmative admonishment to the jurors that Appellant's statutory duties were "not an issue in this case." N.T., Sept. 27, 2016, at 326.
In its harmless error analysis, the majority distinguishes between whether a preserved trial error "could" or "would" have affected a verdict, opining that a new trial is justified only in the latter scenario. See Majority Opinion, op. at 888, 889–90. However, whether an error would have affected a particular verdict is most often unknowable, and accordingly, appellate courts are generally relegated to considering probabilities.2
"[A]n inquiry into what makes an error harmless, though one of philosophical tenor, is also an intensely practical inquiry into the health and sanitation of the law." Elizabeth Price Foley & Robert M. Filiatrault, The Riddle of Harmless Error in Michigan , 46 WAYNE L. REV. 423, 424 (2000) (quoting ROGER J. TRAYNOR , THE RIDDLE OF HARMLESS ERROR at ix (1970)). "Harmless error rules are, essentially, proxies for the level of assurance that an appellate court must have before it is permitted to set aside the judgment below." Id. at 425.
To the degree that refinements to the Pennsylvania standard are implicated, I take no issue with the assignment of the burden to establish prejudice to the appellant. I would clarify, however, that such burden shouldn't be an onerous one. Where appellate courts cannot express confidence that an outcome would have been the same in the absence of a preserved trial error, the courts ought to be more receptive to the position that errors are prejudicial. Accord Shinseki v. Sanders , 556 U.S. 396, 410, 129 S. Ct. 1696, 1706, 173 L.Ed.2d 532 (2009) ("Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm."); cf. Warren v. Pataki , 823 F.3d 125, 138 (2d Cir. 2016) ("An error is harmless if we can conclude with fair assurance that the evidence did not substantially influence the jury. In civil cases, the burden falls on the appellant to show that the error was not harmless and that it is likely that in some material respect the factfinder's judgment was swayed by the error.").3
By failing to instruct the jurors about highly material statutory provisions specifically defining multiple duties owed by Appellant, I conclude that the trial court committed error. Additionally, it seems more likely than not to me that such error had an impact on the jurors' assessment of the degree of Appellant's negligence. See supra note 1. While the majority's elevated threshold for disproving harmless error in civil cases may be of practical benefit to the court system in terms of curtailing the number of retrials, to my mind, it unduly impedes fairness to those suffering errors by the trial courts, despite their time-of-trial efforts to secure the essential remediation.
JUSTICE WECHT, Dissenting
I share Chief Justice Saylor's unease with the Majority's application of harmless error doctrine under the circumstances of this case. Harmlessness must be considered in terms of probabilities rather than illusory certainties; here, regarding the verdict a given jury might have returned had it been charged on negligence per se , and more generally on the right-of-way laws as to which it specifically requested guidance.1 Notably, even the standard governing challenges to jury instructions hints at the uncertainty of the prejudice inquiry, providing that a jury charge is adequate unless it "has a tendency to mislead or confuse rather than clarify a material issue." Maj. Op. at 887(quoting Stewart v. Motts , 539 Pa. 596, 654 A.2d 535, 540 (1995) ). Certainty will not be found in response to a question framed in terms of tendencies. Where, as here, the record suggests that the slightest shift in the jury's assessment of the evidence very well could have led to a contrary result, this Court should not confidently declare that a trial judge's failure to instruct the jury on negligence per se did not mislead or confuse the jury.
Pennsylvania law requires the fact-finder to allocate "factual cause" among two or more parties whose respective conduct the jury has found breached their respective duties under the circumstances. See 42 Pa.C.S. § 7102. This obligation has been couched in terms of assessing the proportional role played by each party's "conduct" in bringing about the injury in question, as reflected in the Standard Suggested Jury Instruction for comparative negligence, see Pa.S.S.J.I. (Civ) 13.190, which the trial court provided without material alteration in this case. See N.T., 9/27/2016, at 299-300. However, this instruction does not by its terms cabin the scope of the jury's discretion to the extent of the Majority's holding.
Where the Majority goes astray is in its overly formalistic account of what comprises "conduct," a definition which the Majority assumes rather than develops. On the Majority's account, "conduct," as a functional synonym of "factual cause," must be understood in the bare one-foot-in-front-of-the-other sense, removing the broader human and legal context from the acts and events in question, a conclusion it shares with Judge Pellegrini's dissenting opinion below. See Maj. Op. at 888–89; Grove v. Port Auth. of Allegheny Cty. , 178 A.3d 239, 254 (Pa. Cmwlth. 2018) (Pellegrini, J., dissenting) ("In determining factual cause, it does not matter how a plaintiff breached a duty of care ... because the factual cause of injury is the same." (emphasis in original)). But conduct cannot be measured in a vacuum, and I believe that most lay jurors understand conduct to embody not just some automatous sequence of events that preceded and caused harm, but also to reflect qualitative considerations.
Such a qualitative aspect is essential to common definitions of conduct. For example, one dictionary defines conduct as "[t]he way a person acts, esp. morally or ethically," and cites "behavior" as a synonym, a word that also, manifestly, has a qualitative overtone in common usage. Conduct , AMERICAN HERITAGE COLLEGE DICTIONARY (3d ed.).2 Another dictionary similarly describes conduct in its "leading sense" as the "[m]anner of conducting oneself or one's life; behaviour; usually with more or less reference to its moral quality (good or bad)," citing such illustrative examples as "[t]he clergy ... claimed the privileges of saints, while their conduct fell below the standard of that of ordinary men." Conduct , THE COMPACT OXFORD ENGLISH DICTIONARY (2d ed.). If "conduct" appears in a jury instruction without a clear limiting definition, we must expect lay jurors to understand that word in its common sense, integrating its qualitative aspect into their deliberations. Cf. Boyde v. California , 494 U.S. 370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) ("Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might."). Consequently, a jury may find conduct that flouts the law more blameworthy than conduct that merely reflects carelessness—especially where the law in question serves to protect not only the actor but others.
The Majority's account can be correct only if conduct is treated (for present purposes) as a legal term of art wholly divorced from its common usage. Even doing so, however, does not exclude conduct's qualitative undertone. The leading legal dictionary defines conduct as "[p]ersonal behavior, whether by action or inaction, verbal or nonverbal; the manner in which a person behaves; collectively, a person's deeds." Conduct , BLACK'S LAW DICTIONARY (10th ed.). Thus, it strains credulity to propose that the manner in which Ms. Grove behaved in this case for purposes of allocation of responsibility must be described restrictively as the mere act of leaving the sidewalk or a crosswalk, precluding the jury from considering those acts in their full context as departures from specific legal obligations.
This dubious proposition haunts the Majority's analysis. And the Majority fails to identify authority to support such a formalistic approach. Indeed, setting aside its recitation of the lower courts' analyses and the parties' arguments, the Majority cites only Judge Pellegrini's dissent in this case and Sodders v. Fry , 32 A.3d 882, 887 (Pa. Cmwlth. 2011). The Majority relies upon Sodders for the proposition that, when a jury finds that a party violated a statute, it may conclude that the party had a commensurate duty of care and breached it, but that, "even having proven negligence per se , a plaintiff cannot recover unless it can be proven that such negligence is the ‘proximate’ or ‘legal’ cause of the injury." Maj. Op. at 889 (quoting Sodders , 32 A.3d at 887 ). While that accurately states the law, it does not explain why "such negligence," or the apportionment of two or more parties' comparative responsibility, cannot or should not be informed by qualitative considerations such as whether a given party's conduct violated statutory obligations.
The Commonwealth Court dissent's reasoning, while more expansive, suffers from the same deficiency. After reviewing the standard jury instructions employed in this case, the dissent below concluded that, "[i]n determining factual cause, it does not matter how a plaintiff breached a duty of care (e.g. , negligence per se or just plain negligence) because the factual cause of injury is the same—here, negligently walking on Sixth Avenue." Grove , 178 A.3d at 254 (Pellegrini, J., dissenting) (emphasis in original). But just saying that does not make it so, and nothing about the jury charge given in this case compelled the jury to apply such a restrictive standard. In criticizing what it characterized as the court's "conclusion that there are ‘no limitations’ on what the jury can consider, including the number and type of specific duties violated," the dissent below argued that this absence of limitations suggested 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." Id. This formulation coheres only if we take on faith that "conduct" entails no qualitative aspect, a conclusion in search of a rationale and in tension with the word's common definition.
It is not that the factual cause is "increased," whatever that might mean. It is that the cause is cast according to the full context of the act or omission in question. It may be true that stepping off the curb was among the causes of Ms. Grove's harm. But that does not exclude the possibility that it also is true that Ms. Grove's violation of one or more laws caused her harm. Setting aside negligence per se , as such, it is literally true to say that a person who was struck by a bus after sprinting into the street from a dark doorway and a person who was struck after simply stepping off the curb at walking speed without checking for oncoming traffic both were injured as a consequence of stepping into the street and the path of an oncoming bus. If the evidence at trial created a dispute as to which characterization was more accurate, I suspect this Court would not find it harmless error if a judge instructed the jury to disregard the abruptness and speed of the plaintiff's movements moments before entering the street and consider only the fact that plaintiff entered the street as a bare proposition. Similarly, reasonable jurors may view those who are injured after breaking laws aimed at ensuring their safety and that of others in a light less flattering than they view those who simply fail to exercise reasonable care for their own safety.
Notably, the other terminology employed by the trial court in its jury charge failed to clarify any limitation on what constitutes "conduct." In particular, the court principally relied upon the phrase "percentage of negligence" in explaining the jury's task in allocating responsibility. Thus, echoing the standard instruction, the trial court explained to the jury, "If you decide that both Joan Grove and Port Authority of Allegheny County were negligent and that the negligence of both parties was a factual cause of plaintiff's injuries, you must then decide how much each party's negligence contributed to the plaintiff's injury." N.T., 9/27/2016, at 299-300. Absent from this formulation is any suggestion that the jury should omit disregard for the law from its deliberations in allocating responsibility.3
We do not ask jurors to check their humanity at the courthouse door, but rather count on it to soften the law's hard edges with the values of the community at large. This is not to say that jurors must not adhere to the law as the court describes it. But we must not lose sight of the interests served by our tort system, which allows recovery only by injured parties whose own role in their harm, as assessed by a jury, does not exceed that of those upon whom they seek to impose liability. Ultimately, assessing comparative negligence requires a jury to reach consensus regarding the relative blameworthiness of the parties who played a causative role in the underlying harm, and determining blameworthiness necessarily entails qualitative judgments. A foolish mistake may suggest an error of judgment, while a similar action that flouts the law may reflect disregard for legal prescriptions that embody the community's views of what best serves public safety.
I would not ask jurors to trade the good judgment they employ when evaluating behavior in their day-to-day lives for an overly formalistic substitute based upon semantic distinctions with no clear legal warrant. Here, the jurors, denied the opportunity they explicitly sought to measure Ms. Grove's behavior against her legal obligations (and indeed instructed in clear terms by the court that those obligations were immaterial to their deliberations), concluded that Ms. Grove's share of responsibility for her harm was a mere scintilla short of precluding recovery entirely. Under these circumstances, and notwithstanding the jury's finding that Ms. Grove was negligent, it is unrealistic to reject out of hand what seems to me more than a mere reasonable probability that the jury would have found her more blameworthy for purposes of allocating responsibility for her harm had it been given the opportunity to measure her behavior against laws that she allegedly violated, an opportunity the jury explicitly sought and the trial court denied. See Diss. Op. at 900 (Saylor, C.J., dissenting). Consequently, I respectfully dissent from the Majority's conclusion that the trial court's error in this regard was harmless.
§ 3543. Pedestrians crossing at other than crosswalks
(a) General rule.-- Every pedestrian crossing a roadway at any point other than within a crosswalk at an intersection or any marked crosswalk shall yield the right-of-way to all vehicles upon the roadway.
* * *
§ 3544. Pedestrians walking along or on highway
(a) Mandatory use of available sidewalk.-- Where a sidewalk is provided and its use is practicable, it is unlawful for any pedestrian to walk along and upon an adjacent roadway.
...
(d) Right-of-way to vehicles.-- Except as otherwise provided in this subchapter, any pedestrian upon a roadway shall yield the right-of-way to all vehicles upon the roadway.
75 Pa.C.S. § 3544(a), (d).