Grove v. Port Auth. of Allegheny Cnty.

218 A.3d 877

Joan P. GROVE, Appellant

v.PORT AUTHORITY OF ALLEGHENY COUNTY, Appellee

Joan P. Grove, Appellant

v.Port Authority of Allegheny County, Appellee

No. 31 WAP 2018

No. 32 WAP 2018

Supreme Court of Pennsylvania.

Argued: April 9, 2019

Decided: October 31, 2019

OPINION

JUSTICE MUNDY

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.1.¹ Port Authority specifically requested a negligence per se charge be read to the jury.² 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 1.³ 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.

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."⁴

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...