178 A.3d 239
Pa. Commw. Ct.2018Background
- In June 2014 Joan P. Grove was struck by a Port Authority bus at the intersection of Montour Way (an alley) and Sixth Avenue; she ultimately required below‑knee amputation.
- Conflicting eyewitness testimony: Grove said she was within Montour Way’s crosswalk when struck; other witnesses said she stepped onto Sixth Avenue (i.e., outside the crosswalk) into the bus’s path.
- Grove sued the Port Authority alleging the bus driver negligently passed a stopped vehicle and encroached onto the intersection.
- At trial the court gave general negligence and comparative‑negligence instructions but refused the Port Authority’s requested negligence‑per‑se instructions based on Vehicle Code pedestrian duties (75 Pa.C.S. §§ 3542–3544).
- During deliberations the jury asked, “What is the pedestrian right of way law…?” The court answered that right‑of‑way law was “not an issue.” Jury found both parties 50% negligent and awarded damages; verdict was molded to $250,000 under the Commonwealth cap.
- Court of Common Pleas denied Port Authority’s new‑trial motion; Commonwealth Court reversed and remanded for a new trial, dismissing Grove’s delay‑damages appeal as moot.
Issues
| Issue | Grove's Argument | Port Authority's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing to instruct jury on negligence per se based on Vehicle Code pedestrian duties | Trial court properly declined; pedestrian not necessarily negligent per se for crossing; any error was harmless because jury found Grove negligent anyway | Trial court abused discretion: Vehicle Code provisions applied to the evidence and negligence per se instructions were necessary to guide apportionment; jury question showed confusion | Reversed — failure to give negligence‑per‑se instruction and to answer jury’s right‑of‑way question was prejudicial; new trial warranted |
| Whether the court’s answer to the jury’s question (stating right‑of‑way law was not an issue) was proper | The answer was acceptable; brief question late in deliberations does not automatically require new trial | Answer was misleading; when jury expresses confusion court must clarify law; denying requested instruction after the query was error | Reversed — court had duty to clarify and its response created substantial possibility of incorrect result |
| Whether omission of negligence‑per‑se instruction was harmless because jury found Grove negligent | Harmless — jury already found negligence; form of the finding (per se vs. in‑fact) is immaterial to apportionment | Not harmless — negligence‑per‑se bears on the specific duties breached and could have changed percentage apportionment (e.g., 51% threshold) | Reversed — omission was not harmless given comparative‑negligence apportionment risk |
| Whether delay damages should be calculated on initial molded verdict or final molded amount | Entitled to delay damages based on the higher pre‑molding amount | Trial court applied precedent and calculated delay on the molded (capped) amount | Dismissed as moot — remand for new trial makes issue moot |
Key Cases Cited
- Allen v. Mellinger, 567 Pa. 1, 784 A.2d 762 (Pa. 2001) (delay‑damages and related principles)
- Hannon v. City of Philadelphia, 138 Pa. Cmwlth. 166, 587 A.2d 845 (Pa. Cmwlth. 1991) (statutory violation may constitute negligence per se regardless of criminal citation)
- Daddona v. Thind, 891 A.2d 786 (Pa. Cmwlth. 2006) (two‑step test for trial court consideration of new‑trial motions and harmless‑error framework)
- Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061 (Pa. 2006) (standards for reviewing jury charges; error warrants new trial if charge as whole misleads or omits fundamental law)
- Sodders v. Fry, 32 A.3d 882 (Pa. Cmwlth. 2011) (failure to instruct on negligence per se where Vehicle Code violation shown can distort description of parties’ duties and warrant new trial)
- Worthington v. Oberhuber, 419 Pa. 561, 215 A.2d 621 (Pa. 1966) (trial court duty to clarify jury confusion when jury returns with questions)