Grove, J., Aplt. v. Port Authority ( 2019 )

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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
JOAN P. GROVE, : No. 31 WAP 2018
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered January
: 12, 2018 at No. 132 CD 2017,
v. : reversing the Order of the Allegheny
: County Court of Common Pleas
: entered January 31, 2017 at No. GD
PORT AUTHORITY OF ALLEGHENY : 14-016095.
COUNTY, :
: ARGUED: April 9, 2019
Appellee :
JOAN P. GROVE, : No. 32 WAP 2018
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered January
: 12, 2018 at No. 195 CD 2017,
v. : reversing the Order of the Allegheny
: County Court of Common Pleas
: entered January 31, 2017 at No. GD
PORT AUTHORITY OF ALLEGHENY : 14-016095.
COUNTY, :
: ARGUED: April 9, 2019
Appellee :
OPINION
JUSTICE MUNDY DECIDED: OCTOBER 31, 2019
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
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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
1 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.
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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
2 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.
3 § 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).
***
§ 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.
75 Pa.C.S. § 3543(a).
***
§ 3544. Pedestrians walking along or on highway
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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
(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).
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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.
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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
4 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.
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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 ¶ 8.5 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.
A hearing was held, and on November 14, 2016, the trial court denied Port
Authority’s motion for post-trial relief.6 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
5 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.”
6 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.
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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.
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 11.7
7 The trial court cited Allen v. Mellinger, 784 A.2d 762 (Pa. 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.
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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).8 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.
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., 718 A.2d 286 (Pa.
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.
8Based on its holding, the Commonwealth Court dismissed Grove’s cross-appeal as
moot.
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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
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“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, 582 A.2d
734, 736 (Pa. Cmwlth. 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, 518 A.2d 810, 818 (Pa. Super. 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,
677 A.2d 1235 (Pa. Super. Ct. 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.
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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.
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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, 171 A.2d 783 (Pa. 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
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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.,
67 A.3d 759, 767 (Pa. 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, 15
A.3d 345, 397 (Pa. 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, 654 A.2d 535, 540 (Pa. 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,
756 A.2d 1116, 1122 (Pa. 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
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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.9 Thus, any omission of a negligence per se charge was not a
9 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.
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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, 866 A.2d 270 (Pa. 2005) (citing Althaus
ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 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).
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
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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
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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, 84 A.3d 657, 671 (Pa. 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.
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