Grove v. Port Auth. of Allegheny Cnty., 132 C.D. 2017

178 A.3d 239

Joan P. GROVE

v.PORT AUTHORITY OF ALLEGHENY COUNTY, Appellant

Joan P. Grove

v.Port Authority of Allegheny County

Appeal of: Joan P. Grove

No. 132 C.D. 2017

No. 195 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued November 14, 2017

Decided January 12, 2018

Reargument Denied February 23, 2018

Gregory A. Evashavik, Pittsburgh, for designated appellant.

Joseph R. Froetschel, Pittsburgh, for appellee.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE SIMPSON

Before this Court are consolidated appeals following the entry of judgment after a jury verdict finding that the Port Authority of Allegheny County (Port Authority) and Joan P. Grove (Plaintiff) each bore 50% of the negligence that was the cause of Plaintiff's injuries after she was struck by a Port Authority bus. In its appeal, the Port Authority asserts the Court of Common Pleas of Allegheny County (trial court) erred in denying its post-trial motions seeking a new trial as a result of the trial court's failure to charge the jury on negligence per se based on certain Vehicle Code provisions relating to duties of pedestrians.¹ In her appeal, Plaintiff challenges the trial court's award of delay damages based on the molded recovery rather than the amount of compensatory damages actually awarded. After review, we are constrained to reverse and remand for a new trial based on the trial court's failure to adequately charge the jury regarding legal principles relevant to the jury's apportionment of comparative negligence. As a result, we dismiss Plaintiff's appeal as moot.

I. Background

In June 2014, Plaintiff was walking on a sidewalk that ran along Sixth Avenue in downtown Pittsburgh. Intersecting Sixth Avenue was Montour Way, a one-way alley that Plaintiff had to cross in order to reach her bus stop. Motor vehicle traffic on Sixth Avenue was to Plaintiff's left. When Plaintiff reached Montour Way there was a car stopped in the pedestrian crosswalk of the alley. Another pedestrian, Dante Anglin (Anglin), was walking in the same direction as Plaintiff. Anglin entered Montour Way ahead of Plaintiff, and he was forced to veer to his left because of the car that was stopped in Montour Way's pedestrian crosswalk. When Plaintiff arrived at the intersection, she also stepped around the vehicle and passed Anglin on the left side. A Port Authority bus traveling down Sixth Avenue struck Plaintiff.

Before striking Plaintiff, the bus was traveling down Sixth Avenue at approximately nine miles per hour when it encountered a stopped vehicle in its lane attempting to turn left. The bus maneuvered around the vehicle, and it struck Plaintiff. Plaintiff fell and hit her head on the pavement, and Plaintiff's right leg was trapped under the bus. The bus's tire ran over Plaintiff's leg and dragged Plaintiff along the ground. The bus driver, Betty Cunningham (Cunningham), did not realize she struck Plaintiff until a passenger on the bus, Joyce Broadwick (Broadwick), yelled for her to stop the bus. Plaintiff's leg was almost completely severed. Over the next three months, Plaintiff underwent numerous surgeries in an effort to save her leg. Ultimately, Plaintiff's leg was amputated just below the knee, and she was fitted with a prosthesis.

Plaintiff subsequently filed suit against the Port Authority. She alleged that Cunningham caused her injuries by negligently passing the stopped vehicle in her lane that was attempting to turn left as Sixth Avenue is only marked as a two-lane road. In so doing, Plaintiff contended Cunningham drove the bus up on the curb and encroached on the adjoining intersection of Montour Way.

At trial, while admitting she could not walk on the crosswalk on Montour Way because it was blocked by the vehicle, Plaintiff alleged that when the bus struck her, she was still on Montour Way and her foot did not venture onto Sixth Avenue. Aside from Plaintiff's testimony, two other witnesses offered testimony on this issue. Anglin testified Plaintiff was two feet outside of the crosswalk on Montour Way and was on Sixth Avenue when the bus struck her. Broadwick was unable to testify definitively on this issue because she only observed the top of Plaintiff's head for about a second before the bus struck Plaintiff. Nevertheless, Broadwick testified that she witnessed Plaintiff step onto Sixth Avenue into the path of the bus.

Shortly before the trial concluded, both parties submitted proposed jury instructions. The Port Authority requested that the trial court provide the jury with summaries of four Vehicle Code provisions regarding the duties of care for pedestrians. The trial court rejected those proposed points for charge. The trial court's entire charge to the jury regarding negligence was as follows:

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.

Reproduced Record (R.R.) at 304a.

After the jury began its deliberations, it returned with three questions, the first of which was: "What is the pedestrian right away [sic] law in the City of Pittsburgh?" R.R. at 451a. The Port Authority again requested that the trial court provide the jury with its proposed points for charge regarding the duties of pedestrians set forth in the Vehicle Code. The trial court denied the request on the ground that Plaintiff never received a citation under any of those statutory provisions. As such, the trial court deemed the proposed instructions unnecessary as the duties of pedestrians under those provisions were not at issue, and it informed the jury that "the right of way law is not an issue in this case." R.R. at 332a. The jury resumed its deliberations.

Ultimately, the jury returned a verdict finding both parties at fault and apportioning negligence at 50% each, along with a verdict of $2,731,000, which was reduced by Plaintiff's comparative negligence to $1,365,500. The trial court molded the verdict to $250,000 pursuant to the statutory damage cap for suits against Commonwealth agencies. See 42 Pa. C.S. § 8528(b).

The Port Authority filed post-trial motions, arguing that the trial court's refusal to instruct the jury on negligence per se resulted in severe prejudice to the Port Authority, and, therefore, it was entitled to a new trial. Ultimately, the trial court determined that its failure to charge the jury on negligence per se was harmless because the jury found Plaintiff negligent; thus, the absence of a per se charge did not impact the jury's negligence determination. To that end, the trial court reasoned, because the jury found Plaintiff negligent, it would have made no difference to instruct the jury on negligence per se as negligence per se encompasses only the elements of duty and breach rather than causation. Had the jury found Plaintiff negligent per se , the trial court reasoned, it still would have had to factor in her comparative negligence. Therefore, the trial court determined that the Port Authority suffered no prejudice as a result of the trial court's refusal to charge the jury on negligence per se , and it committed no error in declining to instruct the jury on negligence per se.

Plaintiff filed a motion for delay damages contending that rather than $11,444.64, the delay damages based on the statutory cap of $250,000, she was entitled to $62,635.37 in delay damages based on the initial molded verdict of $1,365,500. Citing Allen v. Mellinger, 567 Pa. 1, 784 A.2d 762 (2001), the trial court denied Plaintiff's motion. Both parties appealed to this Court.

II. Discussion

In responding to a request for a new trial, a trial court must follow a two-step process. Daddona v. Thind, 891 A.2d 786 (Pa. Cmwlth. 2006). First, it must decide whether one or more mistakes occurred at trial. Id. Second, if the court concludes a mistake occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. Id. The harmless error doctrine underlies every decision to grant or deny a new trial. Id. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would rule differently; the moving party must show prejudice resulting from the mistake. Id.

As an appellate court, to review the two-step process of the trial court for granting a new trial, we also employ a two-prong analysis. Id. First, we examine the decision of the trial court that a mistake occurred. In so doing, we must apply the appropriate standard of review. Id. If the alleged mistake involved an error of law, we must scrutinize for legal error. Id. If, on the other hand, the alleged mistake involved a discretionary act, we must review for an abuse of discretion. Id. If there were no mistakes at trial, we must affirm a decision by the trial court to deny a new trial as the appellate court cannot order a new trial where no error of law or abuse of discretion occurred. Id.

A. Jury Instructions

1. Contentions

In support of its appeal, the Port Authority argues that the trial court was bound to instruct the jury on the law applicable to the evidence in the record. It asserts the facts in evidence proved that Plaintiff crossed an alley outside of the marked pedestrian crosswalk and in doing so stepped out onto Sixth Avenue without ever looking for vehicular traffic and directly into the path of the passing Port Authority bus that struck her. The Port Authority contends it submitted written proposed points for charge requesting an...