Smith, R. v. Wells, A.

J-A09002-19
2019 PA Super 181RICHARD SMITH, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANDREW J. WELLS : No. 2254 EDA 2018
Appeal from the Judgment Entered, July 25, 2018,
in the Court of Common Pleas of Bucks County,
Civil Division at No(s): No. 2014-00874.
BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.
OPINION BY KUNSELMAN, J.: FILED JUNE 07, 2019
In this appeal of a negligence case, the defendant’s version of events
undoubtedly establishes his careless driving. A jury, however, found he acted
within the standard of care. The trial court then refused to grant the plaintiff
judgment as a matter of law.
This was error, which we now reverse. We also hold that a driver’s
failure to stop in the assured clear distance ahead is negligence per se, under
the second clause of 75 Pa.C.S.A. § 3361. A new trial on causation and the
measure of damages (if any) is in order.
Driving down the Pennsylvania Turnpike on the morning of April 24,
2012, Plaintiff Richard Smith saw traffic braking. He successfully stopped his
Buick within the assured clear distance between himself and the car ahead.
See N.T., 5/29/18, at 58. Defendant Andrew J. Wells, who was driving a
Jeep Grand Cherokee behind Mr. Smith’s Buick, did not.
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* Retired Senior Judge assigned to the Superior Court.
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Mr. Wells testified, “I didn’t stop quick enough . . . and rear-ended the
car in front of me.” N.T., 6/1/18, at 24. By his own admission, Mr. Wells did
not see the Buick’s brake lights illuminate. Instead, by the time he noticed
Mr. Smith’s stopped vehicle, those warning lights “were already on.” N.T.,
5/29/18, at 65. Mr. Wells could not recall where he was looking before seeing
Smith’s illuminated brake lights. See Id. at 64-65.
Mr. Wells jammed on his brakes in a last-ditch effort to avoid impact.
He failed. Mr. Wells’ Jeep hit the back of the Buick and propelled it into the
next, stopped car. That car was also forced into the car ahead of it. Mr. Wells’
failure to observe the stopped traffic thus created a four car pile-up. Id. at
61.
Mr. Smith sued Mr. Wells for a host of physical injuries he claims resulted
from the accident. In his opening statement to the jury, defense counsel said
the collision was Mr. Wells’ “fault . . . no question about it.” Id. at 54.
The entire trial and defense counsel’s closing argument focused on
whether the wreck actually injured Mr. Smith. See, e.g., N.T., 6/1/18, at 88-
100. The defense’s theory was that Mr. Smith, who had been in three prior
automobile accidents, already suffered from the aliments he sought to
attribute to Mr. Wells. At no point did Mr. Wells ask the jury to find that he
had driven carefully.
Mr. Smith moved for a directed verdict that Mr. Wells negligently drove
his vehicle and so breached the standard of care as a matter of law. The trial
court denied that motion and authored a verdict slip asking the jury:
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Do you find that Defendant Adam Wells was negligent?
Yes _____ No _____
If you answer Question #1 “YES”, proceed to Question #2.
If you answer Question #1 “NO”, proceed to Question #3.1
Verdict Slip at 1. The jury answered that question in the negative.
Mr. Smith moved for judgment notwithstanding the verdict (JNOV) on
the question of negligence, which the trial court denied. He also filed a post-
trial motion seeking the same result. The trial court also denied it.
This timely appeal followed. Mr. Smith asks this Court to decide whether
“the evidence . . . established negligence [by Mr. Wells,] warranting a directed
verdict or judgment notwithstanding the verdict.” Smith’s Brief at 5. In the
alternative, he also requests a new trial on negligence. See id.
When reviewing a trial court’s denial of a directed verdict and JNOV we
examine the trial record to decide “whether there was sufficient competent
evidence to sustain the verdict.” Birth Center v. St. Paul Companies, Inc.,
787 A.2d 376, 383 (Pa. 2001)). We must view the evidence in the light most
favorable to the verdict winner and give him the benefit of every reasonable
inference that arises from the facts of record. Id.____________________________________________
1 We note the verdict slip’s direction to proceed to Question #3 after a “NO”
reply was unnecessary. Question #3 tells the jury to “[s]tate the amount of
money damages you award Plaintiff Richard Smith for past and future pain
and suffering,” which is pointless information if Mr. Wells was not negligent.
Verdict Slip at 2. The better direction would have been “If you answer
Question #1 ‘NO’, please sign the sheet and return to the courtroom.”
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Mr. Smith’s motions for directed verdict and JNOV sought judgment as
a matter of law, based upon the trial court’s alleged misapplication of the law
of torts and a Pennsylvania statute. Those issues “are pure questions of law.
Thus, our standard of review is de novo, and our scope of review is plenary.”
Reott v. Asia Trend, Inc., 55 A.3d 1088, 1093 (Pa. 2012).
The trial court should grant a directed verdict or JNOV to a moving party
when:
one, the movant is entitled to judgment as a matter of law,
or, two, the evidence was such that no two reasonable
minds could disagree that the outcome should have been
rendered in favor of the movant. With the first, a court
reviews the record and concludes that, even with all factual
inferences decided adverse to the movant, the law
nonetheless requires a verdict in his favor, whereas, with
the second, the court reviews the evidentiary record and
concludes that the evidence was such that a verdict for the
movant was beyond peradventure.
Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992) (citations omitted).
Here, a verdict against Mr. Wells on whether he drove negligently in the
moments before he rear-ended Mr. Smith was beyond peradventure. Our
review of the record reveals no facts favorable to Mr. Wells on the issue of his
negligence, nor does he identify any in his brief.
Instead, Mr. Wells argues (as he did at trial) that the car wreck did not
cause Mr. Smith any harm. See, e.g., Wells’ Brief at 4. He claims “his
testimony that he was able to slow his vehicle before impact and the
photographs admitted as evidence at trial and showing extremely minimal
damage speak for themselves and clearly spoke to the jury.” Id. at 6-7. The
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pictures may be worth a thousand words, but they say nothing about how
safely Mr. Wells drove his car that day. They, like Mr. Wells’ testimony, speak
to whether his negligence was a legal cause of the harm for which Mr. Smith
sued.
A plaintiff must prove four things in a negligence action: (1) a duty to
act or not act within “a reasonable standard of conduct for the protection of
others against unreasonable risks”; (2) breach of that duty; (3) a “close,
causal connection between the conduct and the resulting injury”; and (4) harm
to the plaintiff. W. Prosser, LAW OF TORTS § 30 at 143 (4th ed. 1971).
The first and second elements “make up what the courts usually have
called negligence; but the term quite frequently is applied to the second
alone.” Id. When the trial court explained negligence to the jury, it defined
the term based solely upon the second element. The court said, “A person
who does something a reasonably careful person would not do under the
circumstances is negligent.” N.T., 6/1/18, at 77. Thus, by returning a verdict
of no negligence, the jury exculpated Mr. Wells on the second element and
found that he had conformed his conduct to the standard of reasonable care.
Mr. Wells relies heavily upon Cirquitella v. C. C. Callaghan, Inc., 200
A. 588 (Pa. 1938) in his brief, as did the trial court in denying Mr. Smith’s
motion for JNOV. However, neither the trial court nor Mr. Wells attempt to
reconcile their positions with Cianci v. Burwell, 445 A.2d 809, 810 (Pa.
Super. 1982) or distinguish it. Even though Mr. Smith cited Cianci on appeal,
Mr. Wells does not even address that case in reply. See Wells’ Brief at ii. In
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that case, we held that when, as here, there was no contributory negligence
on the part of a rear-ended plaintiff, “[i]t is difficult to comprehend . . . how a
jury could have returned a verdict for the defendant-appellee. Such a verdict
is truly shocking to one’s sense of justice . . . .” Cianci at 809.
We also find that Cirquitella is distinguishable. There, the defendant
was following 20 feet behind a funeral procession at about eight to ten miles
per hour through city streets. “The day was cold, and snow and ice were upon
the street.” Cirquitella, 200 A. at 589.
Here, the accident occurred on an Interstate Highway – a type of road
unknown to the Cirquitella Court in 1938 – and there was no evidence of
inclement weather. Thus, we conclude that, at best, Cirquitella is a creature
of its time, confined to its unique, factual setting. See Commonwealth v.
Resto, 179 A.3d 18, 22 (Pa. 2018) (stating that “the holding of a judicial
decision is to be read against its facts”). Cirquitella offers little insight into
how drivers should conduct themselves, during rush hour, on the Turnpike, in
the 21st century.
In 1976, the legislature passed the Vehicle Code. See 75 Pa.C.S.A. §§
101 – 9805. This Title established a statutory regime to regulate safe driving
on today’s highways. As such, the entire concept of negligence per se under
the Vehicle Code did not exist in 1938 when the Supreme Court of
Pennsylvania decided Cirquitella. Thus, the trial court’s and Mr. Well’s
reliance upon the Cirquitella decision is misplaced.
This Court has made clear, despite the Cirquitella holding that:
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the mere happening of a rear-end collision does not [at
common law] constitute negligence as a matter of law on
the part of the [driver] in the rear . . . the manner in which
an accident occurs is a circumstance to be considered in
determining the issue of negligence. Where, as here, a
vehicle has been struck in the rear while slowing for a traffic
signal, there is an inference to be drawn that the driver of
the offending vehicle either was not sufficiently vigilant or
failed to have his vehicle under such control that he could
bring it to a stop within the assured clear distance ahead.
Cianci, 445 A.2d at 810.
The Cianci Court further explained that a driver who rear-ends a car
may inculpate himself by his own words. There, the defendant testified:
Well, as [plaintiff] was approaching an intersection, I believe
he could have made the green light. But he stopped
suddenly, and that is what made me run into the back of his
car.
Id. We vacated the defense verdict and remanded for a new trial.
Similarly, Mr. Wells testified, “I didn’t stop quick enough, I guess, and
rear-ended the car in front of me.” N.T., 6/1/18, at 24. But Mr. Wells’
additional admissions make his negligence even clearer than the negligence
we held could be inferred in Cianci. Unlike Cianci, where the defendant at
least had the potential defense that the plaintiff’s car should not have stopped
at the traffic light, there was absolutely no reason for Mr. Wells to collide with
Mr. Smith, except for Mr. Wells’ unreasonably fast driving in rush-hour traffic.
Mr. Wells conceded at his deposition – which plaintiff’s counsel read to the
jury – that, when he first noticed Mr. Smith’s car in front of him, its brake
lights “were already on,” and it was stopped. N.T., 5/29/18, at 65.
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If he had been acting as a reasonable person, Mr. Wells would have had
sufficient time to brake safely within the assured clear distance ahead, just as
Mr. Smith had done, and just as the driver in front of Mr. Smith had done, and
the driver in front of that driver had done, and so on, and so on up the
Turnpike. Thus, as a matter of law, the only person on the Turnpike that day
who did not live up to the standards of a reasonably prudent driver was Mr.
Wells, because a reasonably prudent person “invariably looks where he is
going, and is careful to examine the immediate foreground before he executes
a leap or bound . . . .” A. P. Herbert, MISLEADING CASES IN THE COMMON LAW,
1930, at 12.
If everyone else driving on the highway left themselves enough distance
and time to bring their vehicles safely to a halt, the only logical conclusion is
that Mr. Wells did not, and he therefore acted unreasonably. Indeed, all the
other drivers conformed their speed to the mandates of the General Assembly,
which has legislated as follows:
No person shall drive a vehicle at a speed greater than is
reasonable and prudent under the conditions and having
regard to the actual and potential hazards then existing, nor
at a speed greater than will permit the driver to bring
his vehicle to a stop within the assured clear distance
ahead. Consistent with the foregoing, every person shall
drive at a safe and appropriate speed when approaching and
crossing an intersection or railroad grade crossing, when
approaching and going around a curve, when approaching a
hill crest, when traveling upon any narrow or winding
roadway and when special hazards exist with respect to
pedestrians or other traffic or by reason of weather or
highway conditions.
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72 Pa.C.S.A. § 3361 (emphasis added).
By its plan language, violation of this statute’s second clause establishes
Mr. Well’s negligence per se. That clause prohibits anyone from driving at any
“speed greater than will permit the driver to bring his vehicle to a stop within
the assured clear distance ahead.” Id. Our legislature used the disjunctive
conjunction “nor.” Thus, the clause following “nor” operates independently of
the first clause’s focus upon a “reasonable and prudent” driving speed “under
the conditions . . . and potential hazards” of a roadway. Id.
The trial court erroneously confined its analysis of the statute to the first
clause. It focused exclusively upon whether a jury should determine that Mr.
Wells’ driving was “reasonable and prudent under the conditions’ as required
under 75 Pa.C.S.A. § 3361 . . . .” Trial Court Opinion, 11/13/18, at 3. By
limiting its reading of Section 3361 to only the first clause, the trial court
overlooked the second clause entirely.
This myopic reading contravenes the Rules of Statutory Construction.
Our “General Assembly intends the entire statute to be effective and certain.”
1 Pa.C.S.A. § 1922. By analyzing only the first clause of 72 Pa.C.S.A. § 3361
the trial court rendered its second, more-exacting clause superfluous.
Additionally:
parts of statutes are in pari materia when they relate to the
same persons or things or to the same class of persons or
things.
(b) Statutes in pari materia shall be construed together,
if possible, as one statute.
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1 Pa.C.S.A. § 1932. Because 72 Pa.C.S.A. § 3361 deals with the same class
of persons – drivers on the Commonwealth’s roads – it must be interpreted in
pari materia with itself.
Section 3361 is a unified statute on safe-driving speeds and distances,
and we must give all of its clauses force and effect. Interpreting the statute
in this light, we hold that it prohibits two, distinct forms of illegal driving. The
first is driving at any speed that is unreasonable and imprudent for the
conditions and hazards of the road. The second is driving at any speed that
prevents a driver from fully braking before striking a car, pedestrian, or other
object ahead. The latter violation, if committed, gives rise to negligence per
se on the part of the driver striking the car, pedestrian, or other object ahead,
because the legislature intended to protect all of them when it enacted Section
3361.
Here, Mr. Wells drove at a speed that made it impossible for him to stop
his vehicle within the assured clear distance ahead, because that distance
ahead ended where Mr. Smith’s bumper began. The trial court erred in its
statutory construction when it did not find Mr. Wells’ violation of second clause
of Section 3361 to be negligence per se.
Mr. Wells disobeyed that clause and thereby breached the duty of care
the General Assembly has prescribed. He claimed no sudden emergency or
any other affirmative defense (such as brake-failure, ice on the highway, or
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Mr. Smith’s contributory negligence) to excuse this rear-end collision.2 Thus,
the only reason for this accident was Mr. Wells’ obvious failure to conform his
conduct to the dictates of 72 Pa.C.S.A. § 3361. The trial court’s inability to
recognize that simple truth and its refusal to award Mr. Smith judgment as a
matter of law was error.
Mr. Smith’s first appellate issue is meritorious, and it affords him full
relief.
Judgment vacated. Order denying JNOV reversed.
Case remanded for a new trial on causation and damages.
Jurisdiction relinquished.
Judge Pellegrini joins this Memorandum.
Judge Murray concurs in the result.
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2 As with any claim of negligence per se, the driver of the succeeding vehicle
may defend by pleading and proving an involuntary violation of the statute at
issue. When negligence per se is imposed, the “standard of conduct is taken
over by the court from that fixed by the legislature, and jurors have no
dispensing power by which to relax it, except in so far as the court may
recognize the possibility of a valid excuse for disobedience of the law.”
Bumbarger v. Kaminsky, 457 A.2d 552, 555 (Pa. Super. 1983) (quoting W.
Prosser, LAW OF TORTS § 36 at 200 (4th ed. 1971) (emphasis in original)). In
Bumbarger, for example, the defendant ran a stop sign and collided with a
car in the intersection. He claimed an involuntary violation of the law, because
ice on a steep hill made it impossible for him to obey the stop sign at the
bottom.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/19
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