Marsico v. Dibileo , 2002 Pa. Super. 101 ( 2002 )

CAVANAUGH, J.,

Concurring.

¶ 1 I concur in the result reached by the majority. I concur since I believe that the majority correctly applies the structure and language of Pennsylvania law governing the operation of vehicles. I concur in the result only, because I cannot agree with the majority’s conclusion that application of 75 Pa.C.S.A. § 3321 would lead to absurd results.

¶ 2 No one can deny that a significant portion of traffic movement in our Commonwealth is conducted on various forms of non-public highway land in the form of mall parking lots, commercial parking lots, and lots which adjoin strip shopping centers, stadiums, schools and sundry institutions. The precise portion, of course, is unknown. What is known, however, is that the portion will increase as our society becomes increasingly mobilized and subur-banized. The result is that we have an ever-burgeoning area of human activity that is essentially unregulated. That is why I believe that borrowing from the rules of the road would not be absurd in the present instance. It would not, in my opinion, be so bad to require that every vehicle on a parking lot “main road” recognize the superior rights of every vehicle on a “feeder” road arriving at approximately the same time on the right. Imposition of the legal rules of the road to this vast area of human conduct, now an unregulated free-for-all, would invite order where we now have chaos which is now only mitigated by a self-imposed standard of reasonableness to which, fortunately, most people conform.

¶ 3 Lawful conduct may appear to be inconvenient at times, but obedience to the law is a thing of beauty. To illustrate:

¶ 4 Suppose one is experiencing a bout of insomnia, and at 3:20 A.M., views from his hotel window a controlled intersection where no one is in sight — a vehicle comes to a halt in response to a red light and awaits the green, and has thereby performed an otherwise unwitnessed act in obedience to the law. In other words, the motorist has acted with astonishing orderliness which should induce an observer’s serenity even to a degree that it might defeat insomnia.

¶ 5 Until the law provides some regulation to this attribute of our modern conurbation, eases will present themselves to the trial courts and they are faced with a puzzle: How to charge the jury?

¶ 6 On a basic level, everyone owes to others a duty of due care. The law of negligence requires that one exercise the standard of care of the average prudent individual under similar circumstances. Kirr v. Suwak, 336 Pa. 561, 9 A.2d 735 (1939). The manner in which an accident occurs is a circumstance to be considered in determining the issue of negligence. Cianci v. Burwell 299 Pa.Super. 387, 445 A.2d 809 (1982). The jury may also be charged that every motorist has a duty to travel at a safe speed; to maintain a proper lookout; to keep his vehicle under control, and to observe the point and position of other objects, especially other vehicles in the area. I would further suggest that it would not be error, so long as it is not given the force of law, to advise the jury that in analogous situations (intersecting highways) there is a rule (§ 3321) that is in no way binding, but which might give guidance.