          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan P. Grove                             :
                                          :
               v.                         :   No. 132 C.D. 2017
                                          :
Port Authority of Allegheny County,       :
                         Appellant        :

Joan P. Grove                             :
                                          :
               v.                         :   No. 195 C.D. 2017
                                          :   Argued: November 14, 2017
Port Authority of Allegheny County        :
                                          :
Appeal of: Joan P. Grove                  :

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


OPINION
BY JUDGE SIMPSON                          FILED: January 12, 2018

               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


      1
          75 Pa. C.S. §§101-9805.
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

                                           2
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




                                           3
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.




                                          4
             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




                                           5
$1,365,500. Citing Allen v. Mellinger, 784 A.2d 762 (Pa. 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


                                          6
                                   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 instruction on negligence per se, including
the Vehicle Code provisions regarding the duties of pedestrians. It argues that the
requested Vehicle Code provisions address the duties of care of pedestrians, prohibit
pedestrians from leaving a curb or other place of safety and walking into the path of
a vehicle, and yielding the right of way to all vehicles on the roadway. The Port
Authority maintains the trial court denied these requested points for charge. It
asserts the trial court’s refusal constitutes an abuse of discretion that resulted in
prejudice to the Port Authority, and is fundamental error.


             The Port Authority further contends that, during deliberations, the jury
submitted written questions to the trial court, which included: “What is the
pedestrian right-away [sic] law in the City of Pittsburgh?” R.R. at 451a. The Port
Authority argues its counsel again urged the trial court to instruct the jury on the
requested points for charge, including negligence per se and the Vehicle Code
provisions pertaining to pedestrians. It asserts the trial judge again refused. Instead,
the Port Authority asserts, the trial court provided the following answer to the jury:
“[T]he right of way law is not an issue in this case.” R.R. at 332a.




                                           7
              The Port Authority maintains that the jury astutely recognized that the
right of way law was pertinent to its decision and requested guidance from the trial
court for such an instruction. Unfortunately, it argues, not only did the trial court
decline to provide the required guidance, it misled the jury by giving an inaccurate
answer.     The Port Authority contends that refusing to provide the requested
instruction and providing an incorrect answer in response to the jury’s question
resulted in severe prejudice to the Port Authority, which likely altered the outcome
of the jury verdict. As such, the Port Authority asserts, it is entitled to a new trial.


              Plaintiff counters that, on appeal, the Port Authority raises one
argument: that the trial court had two opportunities to instruct the jury on negligence
per se, first, during the initial jury charge; and second, in response to a jury question.
Plaintiff points out that the Port Authority argues that the trial court abused its
discretion by not giving that instruction.


              Plaintiff asserts that the Port Authority first sought three non-standard
instructions directing the jury to find Plaintiff negligent per se if she was found to
be outside of the crosswalk, or otherwise in the bus’s roadway at the time of the
accident.    Additionally, Plaintiff argues, the Port Authority sought that same
negligence per se instruction in response to the jury’s question as to the pedestrian
right of way law in the City of Pittsburgh.


              Plaintiff maintains that, because a pedestrian is not necessarily
negligent per se for crossing in an intersection, the trial court did not abuse its
discretion in not charging the jury on negligence per se. She contends there is no



                                             8
record evidence supporting the Port Authority’s contention that the jury was
somehow confused by the legal standard and principles so as to warrant a new trial.


             Perhaps most illustrative, Plaintiff asserts, the jury did in fact find
Plaintiff negligent even without the per se charge Thus, Plaintiff argues, to the
extent the trial court erred, it was harmless, and the jury’s verdict should not be
disturbed.


                                     2. Analysis
             The purpose of a jury charge is to clarify the legal principles at issue.
Rittenhouse v. Hanks, 777 A.2d 1113 (Pa. Super. 2001). Jury instructions must be
upheld if they adequately and accurately reflect the law and are sufficient to guide
the jury in its deliberations. Von der Heide v. Dep’t of Transp., 718 A.2d 286 (Pa.
1998).

             Further, our Supreme Court explains:

             In examining jury instructions, our scope of review is
             limited to determining whether the trial court committed a
             clear abuse of discretion or error of law controlling the
             outcome of the case. 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 a
             fundamental error. In reviewing a trial court’s charge to
             the jury we must look to the charge in its entirety. Because
             this is a question of law, this Court’s review is plenary.




                                          9
Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70 (Pa. 2006)
(citations and quotations omitted). “As a general rule, refusal to give a requested
instruction containing a correct statement of law is ground for a new trial unless the
substance thereof has otherwise been covered in the court’s general charge.” Ottavio
v. Fibreboard Corp., 617 A.2d 1296, 1302 (Pa. Super. 1992).


             Relevant here, the trial court charged the jury on general negligence,
comparative negligence, and the apportionment of comparative negligence.
Instructing the jury on comparative negligence and apportionment, the trial court
stated:

                    As a defense, the [Port Authority] claims that
             [Plaintiff’s] own negligence was a factual cause of her
             injury. [The Port Authority] has the burden to prove both
             of the following: That [Plaintiff] was negligent, and that
             [Plaintiff’s] negligence was the factual cause of her injury.

                    If you find [Plaintiff’s] percentage of negligence is
             greater than 50 percent, [Plaintiff] cannot recover her
             damages. If you decide that both [Plaintiff] and [the Port
             Authority] were negligent and that the negligence of both
             parties was a factual cause of [P]laintiff’s injuries, you
             must then decide how much each party’s negligence
             contributed to the [P]laintiff’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 [Plaintiff’s] negligence was
             greater than 50 percent, then [P]laintiff cannot recover. If
             you decide that [Plaintiff’s] negligence was less than or
             equal to [the Port Authority’s], then [P]laintiff can recover
             for her injuries. You must then decide the dollar amount
             of [Plaintiff’s] damages.




                                          10
                   In determining [Plaintiff’s] damages, do not
             consider the percent of [Plaintiff’s] negligence. I will
             reduce [Plaintiff’s] damages based upon the percent of
             negligence you have assigned to the parties.

                    If you find that [the Port Authority] was not
             negligent, or that the negligence of the [Port Authority]
             was not a factual cause in bringing about the harm to
             [Plaintiff], your verdict must be for the [Port Authority] on
             the negligence claim.

                   If you find that [the Port Authority] was negligent
             and that the conduct of the [Port Authority] was a factual
             cause of the harm to [Plaintiff], you should then consider
             whether [Plaintiff] was negligent and whether the
             negligence of [Plaintiff] was a factual cause in bringing
             about [Plaintiff’s] own harm.

                    If you decide that both [Plaintiff] and [the Port
             Authority] were negligent, that the negligence of both
             parties was a factual cause of the injury to [Plaintiff], you
             must decide the percentage of each party’s negligence.
             The total of these percentages must be 100 percent.

                   If you decide that the negligence of [Plaintiff] was
             more than the negligence of the [Port Authority], then your
             verdict must be for the [Port Authority] on the negligence
             claim. If you decide that the negligence of [Plaintiff], if
             any, was less than or equal to the negligence of [the Port
             Authority], your verdict must be for [Plaintiff] on the
             negligence claim.

R.R. at 305a-08a.


             In its written proposed points for charge, the Port Authority requested
that, in addition to the general negligence charge given by the trial court, see R.R. at
304a, that the trial court also instruct the jury as to negligence per se, see Pa. SSJI




                                          11
(Civ) 13.100,2 based on three Vehicle Code provisions relating to the duties of care
of pedestrians, 75 Pa. C.S. §§3542(b), 3543(a) and 3544(a) and (d). See R.R. at
449a.


              Section 3542(b) of the Vehicle Code (pertaining to “Right-of-way of
pedestrians in crosswalks”) states: “(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.” Additionally,
Section 3543(a) of the Vehicle Code (relating to “Pedestrians crossing at other than
crosswalks”) states: “(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.” Further, Section 3544
of the Vehicle Code states, in pertinent part:

              (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.


        Pennsylvania Suggested Standard Jury Instruction (Civ) 13.100 (“Violation of Statute—
        2

Negligence Per Se) states:

              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. SSJI (Civ) 13.100.

                                               12
                                       ****
             (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).


             Here, the jury was confronted with conflicting testimony as to whether
the Port Authority bus struck Plaintiff while she was walking on Sixth Avenue,
outside the crosswalk of Montour Way, or while she was walking within the
crosswalk of Montour Way. Specifically, Plaintiff testified that she was two feet
outside the crosswalk of Montour Way when the bus struck her. R.R. at 51a-52a.
She testified that she was on Montour Way because the crosswalk was set back
approximately three-and-a-half feet from the curb line of Sixth Avenue and the
opposite sidewalk was directly in front of her. Id.


             On the other hand, Anglin testified that the bus’s right front bumper
struck Plaintiff, R.R. at 380a, and that Plaintiff was two arms lengths away from
Anglin, which he equated as two feet outside of the crosswalk. R.R. at 375a, 377a,
390a-91a. Anglin specifically testified that the bus struck Plaintiff while she was on
Sixth Avenue. R.R. at 391a. Additionally, Broadwick testified that Plaintiff stepped
out onto Sixth Avenue into the path of the bus. R.R. at 172a.


             Despite the existence of testimony that the bus struck Plaintiff after she
walked outside of the crosswalk on Montour Way and onto Sixth Avenue into the
path of the bus, the trial court rejected the Port Authority’s proposed points for
charge regarding the statutory duties of care of pedestrians. It did so on the ground


                                         13
that Plaintiff did not receive a citation under any of the cited statutory provisions.
R.R. at 237a. The trial court’s reasoning on this point was erroneous. See Hannon
v. City of Phila., 587 A.2d 845, 851 (Pa. Cmwlth. 1991) (“Contrary to [the
appellant’s] claims, evidence of violation of a statute, such as the Vehicle Code here,
may constitute negligence per se, irrespective of the criminal penalties contained
therein or whether there has been a conviction thereunder.”) (emphasis added)
(citation omitted).


               In addition, 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.3
         3
          The parties discuss our decision in Sodders v. Fry, 32 A.3d 882 (Pa. Cmwlth. 2011).
There, this Court held that a common pleas court erred in failing to charge the jury on negligence
per se where the evidence showed a Vehicle Code violation occurred despite the fact that the
common pleas court charged the jury on negligence generally and read the applicable Vehicle
Code provisions to the jury. This Court explained that the common pleas court’s “failure to instruct
the jury regarding negligence per se resulted in an inaccurate description of the relative duties of
care in this case.” Id. at 888. As a result, this Court agreed with the common pleas court that a
new trial was warranted.
        Here, not only did the trial court decline to instruct the jury as to negligence per se, it also
declined to provide the jury with the relevant Vehicle Code provisions relating to the duty of care
of pedestrians. Instead, the trial court only provided the jury with the general charge on negligence,
which, as explained more fully below, did not adequately and accurately reflect the law.
        Nevertheless, citing Bressler v. Dannon Yogurt, 573 A.2d 562 (Pa. Super. 1990), Plaintiff
argues that if the trial court here gave the Port Authority’s requested instruction that a pedestrian
is negligent per se if she does not use an available crosswalk or fails to yield to a vehicle that would
constitute reversible error. Bressler is inapposite here.
        In Bressler, a pedestrian was struck while walking on a roadway by a vehicle that was
backing out of a parking space. At trial, the defendant driver, relying on one of the Vehicle Code
provisions cited by the Port Authority here, requested and received a negligence per se charge over
the plaintiff’s objection. The common pleas court there instructed the jury: “If you find that [the
plaintiff] was in the act of crossing the roadway at a point other than within a crosswalk or an
intersection, then you should find him negligent.” Id. at 565-66. The jury found the pedestrian
plaintiff 50% causally negligent. In reversing the common pleas court and ordering a new trial,



                                                  14
               To that end, apportionment is a practical inquiry into the specific
circumstances and depends on the unique context of each case. Hairston v. Allen,
153 A.3d 999 (Pa. Super. 2016). As to the apportionment of comparative negligence
charge that the trial court gave the jury here, see Pa. SSJI (Civ) 13.190; R.R. at 307a,
the Superior Court explained:

                      We have concluded that the jury should be informed
               of the consequence of its apportionment of negligence. We
               regard such information as essential if the jury is to be able
               to apply the equitable considerations and arrive at the
               compromises that are an inherent part of the jury system.

Peair v. Home Ass’n of Enola Legion No. 751, 430 A.2d 665, 671-72 (Pa. Super.
1981).
               Further, the apportionment charge allows the jury to consider all
circumstances in its commonsense determination of how to apportion causal
negligence.      See Pa. SSJI (Civ) 13.190, Subcommittee Note.                     There are no

the Superior Court explained that based on the court’s charge, “the jury was ... under the
misapprehension that [the plaintiff] could be found negligent solely because he had attempted to
cross … in the middle of a block. The jury, instead, should have been instructed that a pedestrian
may not cross between intersections without exercising due care, and whether such care has been
maintained is a question of fact to be determined by the jury after being adequately instructed as
to the applicable standard of care.” Id. at 566-67.
         The Court in Bressler further explained that where a pedestrian traverses a street at other
than a regular crossing he is bound to exercise a higher degree of care for his own safety than if he
were crossing at an intersection. The reason for the rule is apparent as he is crossing at a place
where vehicular traffic could not be expected to anticipate a pedestrian. “It is equally well settled
that it is the duty of a pedestrian to look before he undertakes a street crossing and to continue to
look as he proceeds and such duty is particularly incumbent upon one who traverses a street
between intersections.” Id. at 567 (citation omitted).
         For the reasons discussed below, the trial court here would not have committed reversible
error by informing the jury of the Vehicle Code provisions relating to the duties of care of
pedestrians as the jury was permitted to consider these duties in its apportionment of negligence.
Further, contrary to Plaintiff’s assertions, just because there was conflicting testimony as to the
location in which the bus struck Plaintiff, does not mean that the instructions regarding the
statutory duties of care for pedestrians should not have been given as the resolution of the
evidentiary conflict was for the jury as fact-finder.

                                                15
limitations on what the jury may consider in this apportionment, and the jury may
apply equitable considerations to reach a compromise. Id. As a result, the jury could
consider the number and type of specific duties violated in addition to the general
duty of a reasonable person to protect herself and others. Indeed, comparative
negligence applies regardless of the nature of the negligence alleged, including a
claim of negligence per se such as that asserted by the Port Authority here. Congini
v. Portersville Valve Co., 470 A.2d 515 (Pa. 1983) (permitting fact-finder to
compare negligence per se of a host serving alcohol to a minor who illegally and
willingly consumed alcohol); White by Stevens v. Southeastern Pa. Transp. Auth.,
518 A.2d 810, 818 (Pa. Super. 1986) (it is “within the exclusive province of the jury
to determine whether one shown to have been guilty of negligence per se, was guilty
of greater negligence than another shown to have been guilty of some other kind of
negligence per se or merely of negligence as a matter of fact and to compare the two
and determine which is greater.”) (citations omitted).


             More importantly, after the trial court declined to charge the jury on
negligence per se based on the Vehicle Code provisions relating to the duties of care
of pedestrians in accordance with the Port Authority’s proposed points for charge,
and the jury began its deliberations, the jury returned with three questions. R.R. at
322a. The first question asked: “[W]hat is the pedestrian right of way law in the
City of Pittsburgh?” Id.; see also R.R. at 451a. In response, the trial court informed
counsel that it proposed to inform the jury that “the right of way law is not an issue
in this case[.]” R.R. at 322a. The Port Authority’s counsel objected, asserting the
jury’s question pertained to the Port Authority’s proposed points for charge
regarding pedestrian duties of care under the Vehicle Code. Id. The trial court



                                         16
disagreed, and it informed the jury that the right-of-way law was not an issue in this
case. R.R. at 332a. Again, this was error.


             “Where a jury returns on its own motion and indicates confusion, the
court has a duty to give such additional instructions on the law, as the court may
deem necessary to clarify the jury’s doubt or confusion.” Chicchi v. Southeastern
Pa. Transp. Auth., 727 A.2d 604, 609 (Pa. Cmwlth. 1999) (citation omitted). Thus,

                     [t]he general rule on jurors’ questions appears in
             Worthington v. Oberhuber, [215 A.2d 621 (Pa. 1966)]:
             ‘There may be situations in which a trial judge may decline
             to answer questions put by the jury, but where a jury returns
             on its own motion indicating confusion, the court has the
             duty to give such additional instructions on the law as the
             court may think necessary to clarify the jury’s doubt or
             confusion.’ In Nebel v. Mauk, [253 A.2d 249 (Pa. 1969)],
             this statement is qualified. The jury there asked the judge,
             ‘If a person is even slightly negligent can he claim damages
             from another person?’ When counsel could not agree on
             an answer, the court declined to instruct the jury further. A
             verdict was rendered for the defendant, and the plaintiff’s
             motion for a new trial was granted. This order was reversed
             on appeal. After citing the rule from Worthington, the
             court added the following:

                           While the fact that the question was asked
                   would indicate that some confusion existed, a new
                   trial should not be ordered unless it can be shown
                   that the confusion worked to the detriment of the
                   losing party … In order to obtain a new trial the
                   moving party must demonstrate in what way the
                   trial error caused an incorrect result. Id. [at 251].

Reilly v. Poach, 323 A.2d 50, 51-52 (Pa. Super. 1974). Further,

                   [a]lthough in Nebel the court spoke of
             ‘demonstrat(ing)’ that refusal to answer a question
             ‘caused’ an incorrect result, this language must not be read


                                         17
               too literally or out of context. Taken with the statement in
               Worthington of the trial judge’s ‘duty’, Nebel does not
               require that there appear more than a substantial
               possibility of an incorrect result after consideration is
               given to the particular facts of the case in question, with
               attention also to the nature of the response required to
               answer the particular question put to the judge.

Id. at n.2.


               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. 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.4
               Moreover, we disagree with the trial court and Plaintiff that the trial
court’s failure to instruct the jury on the Vehicle Code provisions discussed above is
harmless on the ground that the jury ultimately found Plaintiff negligent. As set
forth above, in apportioning the comparative negligence between Plaintiff and the
Port Authority, the jury could consider the number and type of specific duties
Plaintiff may have violated in addition to the general duty of a reasonable person to

       4
           Nevertheless, Plaintiff asserts: “Should the Court agree with the Port Authority and
determine that a single question—answered relatively shortly before the verdict was rendered—is
evidence of confusion, it would essentially expose every verdict where a question is answered by
the trial court to a new trial.” Br. of Designated Appellee at 20. In light of our detailed discussion
above, we disagree with Plaintiff’s overly broad characterization of the purported consequences
of our holding in this case.

                                                 18
protect herself and others. Therefore, consideration of the specific duties of care of
pedestrians could have impacted the jury’s determination as to how to apportion the
comparative negligence here. This is particularly true here in light of the jury’s
verdict finding that the Port Authority and Plaintiff each bore 50% of the negligence
that was the cause of Plaintiff’s injuries. Indeed, had the jury found Plaintiff 51%
causally-negligent, no recovery would be permitted. See, e.g., Dawson v. Fowler,
558 A.2d 565, 567 (Pa. Super. 1989) (“In Pennsylvania, where the plaintiff is 51%
or more causally-negligent, no recovery is permitted.”) (citation omitted). Under
these circumstances, a new trial is warranted.


                                 B. Delay Damages
             Based on our determination that a new trial is warranted, we dismiss as
moot Plaintiff’s consolidated appeal through which Plaintiff argues that her delay
damages should have been calculated on the initial molded verdict amount of
$1,365,500, rather than the final molded verdict of $250,000.


                                  III. Conclusion
             For the foregoing reasons, we are constrained to reverse the trial court’s
order, and we remand to the trial court for a new trial. Consequently, we dismiss as
moot Plaintiff’s appeal challenging the trial court’s calculation of delay damages.




                                       ROBERT SIMPSON, Judge




                                         19
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan P. Grove                               :
                                            :
            v.                              :   No. 132 C.D. 2017
                                            :
Port Authority of Allegheny County,         :
                         Appellant          :

Joan P. Grove                               :
                                            :
            v.                              :   No. 195 C.D. 2017
                                            :
Port Authority of Allegheny County          :
                                            :
Appeal of: Joan P. Grove                    :


                                    ORDER


            AND NOW, this 12th day of January, 2018, the order of the Court of
Common Pleas of Allegheny County is REVERSED and the matter is
REMANDED for a NEW TRIAL consistent with the foregoing opinion.
Designated Appellee Joan P. Grove’s consolidated appeal is DISMISSED as
MOOT.


            Jurisdiction is relinquished.



                                       ROBERT SIMPSON, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joan P. Grove                       :
                                    :
            v.                      : No. 132 C.D. 2017
                                    :
Port Authority of Allegheny County, :
                   Appellant        :

Joan P. Grove                      :
                                   :
            v.                     : No. 195 C.D. 2017
                                   : Argued: November 14, 2017
Port Authority of Allegheny County :
                                   :
Appeal of: Joan P. Grove           :


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


DISSENTING OPINION BY
SENIOR JUDGE PELLEGRINI                        FILED: January 12, 2018


             This appeal presents the question of whether the path the jury takes to
find that a party breached a duty – i.e., negligent-in-fact or negligent per se – makes
that party “more negligent” in allocating the percentage of factual cause of the
injuries for purposes of comparative negligence. Because 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.
                                          I.
                                          A.
              In 2014, Plaintiff was walking on the sidewalk on Sixth Avenue in
downtown Pittsburgh. Intersecting with Sixth Avenue is Montour Way, a one-way
alley that she had to cross to go to her bus stop. Motor vehicle traffic on Sixth
Avenue was to her left. When she reached Montour Way, there was a car stopped
in the alley blocking its pedestrian crosswalk. Another pedestrian, Dante Anglin
(Anglin), was walking in the same direction as Plaintiff. Anglin entered Montour
Way ahead of Plaintiff and was forced to veer to his left because a car was blocking
Montour Way’s pedestrian crosswalk. When she came to the intersection, Plaintiff
also stepped around the vehicle and passed Anglin on the left side when a Port
Authority bus going down Sixth Avenue struck her.


              Before striking Plaintiff, the bus had been moving down Sixth Avenue
at 9 miles per hour when it encountered a stopped vehicle in its lane attempting to
turn left. Even though Sixth Avenue is marked as a two-lane roadway, the bus
maneuvered around the vehicle when the front right bumper or mirror of the bus
struck Plaintiff. Plaintiff fell and hit her head on the pavement and her right leg was
trapped under the bus. The wheel of the bus ran over Plaintiff’s leg and dragged her
along the ground. Betty Cunningham (Cunningham), the bus driver, did not realize
she had struck Plaintiff until Joyce Broadwick (Broadwick), a passenger on the bus,
yelled for her to stop the bus. Plaintiff’s leg was severed almost completely. Over
the next three months, she underwent approximately 13 surgeries to try to save her
leg. In the end, her leg was amputated just below the knee and she was fitted with a
prosthesis.



                                       DRP - 2
                                               B.
                Plaintiff brought a tort action against the Port Authority claiming that
her injuries were caused when the bus negligently passed a stopped vehicle in its
lane that was attempting to turn left because Sixth Avenue is only marked as a two-
lane roadway. By doing so, Plaintiff contended that Cunningham drove the bus up
on the curb and encroached on the adjoining intersection of Montour Way.


                While admitting that she was not in the crosswalk on Montour Way
because a car blocked it, Plaintiff testified that when the bus struck her, she was still
on Montour Way and her foot did not venture onto Sixth Avenue. Anglin testified
that Plaintiff was two feet outside of the crosswalk on Montour Way but was on
Sixth Avenue when the bus struck her.1


                Both parties submitted proposed charges to the jury.                 The Port
Authority requested that the trial court provide the jury with summaries of four
different statutory provisions in the Vehicle Code2 regarding pedestrian duties of




       1
          Broadwick was unable to offer a firm opinion on the matter because she only saw the top
of Plaintiff’s head for approximately one second before the bus struck her and was unable to see
where Plaintiff’s feet were located.

       2
           Vehicle Code, 75 Pa.C.S. §§ 101 – 9805.




                                            DRP - 3
care. These provisions were: 75 Pa.C.S. §§ 3542(b),3 3543(a),4 3544(a)5 and
3544(d).6 After the case was given to the jury with the standard jury instructions for
negligence and how to allocate damages under comparative negligence, the jury
returned with three questions, one of which was, “What is the pedestrian right of
way law in the City of Pittsburgh?” (Reproduced Record (R.R.) at 451a.) The Port
Authority again requested that the trial court provide the jury with its proposed
charges regarding duties of pedestrians set forth in the Vehicle Code. Again, the
trial court denied the request.


                The jury resumed its deliberations and 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 cap of
damages against Commonwealth agencies.7

       3
         75 Pa.C.S. § 3542(b), regarding the exercise of the duty of care by pedestrians in
crosswalks, provides that “[n]o 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.”

       4
         75 Pa.C.S. § 3543(a), regarding the general rule of pedestrians crossing at places other
than crosswalks, provides that “[e]very 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.”

       5
          75 Pa.C.S. § 3544(a), regarding the mandatory use of available sidewalks for pedestrians
walking along a highway, provides that “[w]here a sidewalk is provided and its use is practicable,
it is unlawful for any pedestrian to walk along and upon an adjacent roadway.”

       6
         75 Pa.C.S. § 3544(d), regarding the right of way for vehicles on a highway, provides that
“[e]xcept as otherwise provided in this subchapter, any pedestrian upon a roadway shall yield the
right-of-way to all vehicles upon the roadway.”

       7
           42 Pa.C.S. § 8528(b).


                                            DRP - 4
             The majority holds that the trial court’s failure to give a negligence per
se jury instruction regarding provisions of the Vehicle Code setting forth the duties
of pedestrians in crosswalks and on highways made those instructions inadequate,
and that the Port Authority suffered prejudicial error. The reason behind this holding
is that if the trial court gave the proper instructions, the jury could have found
Plaintiff to be 1% more negligent – i.e., 51% – thus precluding any recovery because
a plaintiff is only entitled to partial recovery when she is found 50% or less negligent.
42 Pa.C.S. § 7102.


             While I agree 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 have not made a difference in determining the percentage of factual cause for
comparative negligence purposes. Let me explain why.


                                           II.
                                           A.
             In a typical negligence case, a 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 incurred. Page v. City of Philadelphia, 25 A.3d 471, 475 (Pa. Cmwlth.
2011) (citing Talarico v. Bonham, 650 A.2d 1192, 1195–96 (Pa. Cmwlth. 1994)). If
the jury finds that a party’s conduct breached a duty owed, that is “negligence-in-
fact.” When an individual violates an applicable statute, regulation or ordinance



                                        DRP - 5
designed to prevent a public harm, it is “negligence per se.” If the jury finds that a
person violated an applicable statute, this finding only establishes the first two
elements of negligence – duty and breach. Ford v. Philadelphia Housing Authority,
848 A.2d 1038, 1050, n. 11. (Pa. Cmwlth. 2004). Even if a plaintiff proves
negligence per se, a party cannot recover unless it can be proven that such negligence
is the “proximate” or “legal” cause of the injury. Id.


             Pennsylvania Standard Jury Instruction (Civ. 2017) 13.100 (emphasis
added) provides that when there has been a violation of a statute, the following
instruction is to be given:

             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.


As the Subcommittee Note explains, a negligence per se finding does not establish
the factual cause of a plaintiff’s injury.

             The instruction that violation of a mandatory statutory
             provision constitutes negligence as a matter of law must
             be accompanied by the caveat that such violation must
             be found to be a factual cause in bringing about the
             injury for liability to accrue. Majors v. Brodhead Hotel,


                                        DRP - 6
             205 A.2d 873 (Pa. 1965); Wermeling v. Shattuck, 76 A.2d
             406, 409 (Pa. 1950). This is one of the ways of tempering
             what has been described as “the harsh doctrine of
             negligence per se.” Gaither v. Myers, 404 F.2d 216, 221,
             n.16 (D.C. Cir. 1968). The doctrine is applicable to both
             plaintiffs and defendants. D’Ambrosio v. City of Phila.,
             47 A.2d 256 (Pa. 1946).


Id. (emphasis added).


             What all of this shows is that there are different paths that a jury can
take to arrive at the same place – i.e., that a plaintiff’s conduct breached a duty of
care. This case illustrates this point. If a negligence per se charge had been given
with the relevant Vehicle Code provisions, it would have resulted in a finding that
Plaintiff was negligent and breached her duty by being on Sixth Avenue when the
bus hit her. Yet, even without the negligence per se jury instruction, the jury arrived
at the same conclusion; she breached her duty of care by her conduct – walking on
Sixth Avenue – and was therefore negligent. How you arrive at this conclusion has
nothing to do with the separate issue of apportionment – i.e., the factual cause of the
injury.


                                          B.
             Comparative negligence does the apportionment of damages by
comparing the factual causes of an injury. Under this standard, the factfinder
compares the negligent conduct of the parties and the resulting injury to arrive at a
calculation of the damages factually caused by each party’s negligence. Pursuant to
Pennsylvania law, the fact that a plaintiff may have been contributorily negligent:




                                       DRP - 7
            [S]hall not bar a recovery by the plaintiff or his legal
            representative where such negligence was not greater than
            the causal negligence of the defendant or defendants
            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.


42 Pa. C.S. § 7102(a) (emphasis added).


            When comparative negligence is at issue, Pennsylvania Standard Jury
Instruction 13.180 (Civ. 2017) provides:

            As a defense, [name of defendant] claims that [name of
            plaintiff]’s own negligence was a factual cause of [his]
            [her] [injury] [harm].

            [name of defendant] has the burden to prove both of the
            following:

                    1. that [name of plaintiff] was negligent; and

                  2. that [name of plaintiff]’s negligence was a factual
            cause of [his] [her] [injury] [harm].

            If you find [name of plaintiff]’s percentage of negligence
            is greater than 50 percent, [name of plaintiff] cannot
            recover [his] [her] damages.


(Emphasis added).


            Under this instruction, the jury is charged with attributing the negligent
conduct of each party to the factual cause of the harm in order to determine the
percentage that each party is responsible for those injuries for which compensation



                                       DRP - 8
is sought. Once a party, by his or her conduct, is found to have breached a duty, the
factual cause of the plaintiff’s injuries must be determined.
             Factual cause is determined by comparing the “conduct” of the parties.
Pennsylvania Standard Jury Instruction 13.20 (Civ. 2017) (emphasis added) treats
factual cause as such:

             In order for [name of plaintiff] to recover in this case,
             [name of defendant]’s [negligent] [grossly negligent]
             [reckless] 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, [name of defendant]’s conduct need
             not be the only factual cause. The fact that some other
             causes concur with [name of defendant]’s negligence in
             producing an injury does not relieve [name of defendant]
             from liability as long as [his] [her] own negligence is a
             factual cause of the injury.


             In determining factual cause, it does not matter how a plaintiff breached
a duty of care (e.g., negligence per se or just plain negligence) because the factual
cause of injury is the same – here, negligently walking on Sixth Avenue. In this
case, the jury found that this conduct factually caused 50% of Plaintiff’s injuries.


                                          C.
             The majority position seems to rest on the following:



                                       DRP - 9
             [T]he [comparative negligence] apportionment charge
             allows the jury to consider all circumstances in its
             commonsense determination of how to apportion causal
             negligence. See Pa. SSJI (Civ) 13.190, Subcommittee
             Note. There are no limitations on what the jury may
             consider in this apportionment, and the jury may apply
             equitable considerations to reach a compromise. Id. As a
             result, the jury could consider the number and type of
             specific duties violated in addition to the general duty of a
             reasonable person to protect herself and others. Indeed,
             comparative negligence applies regardless of the nature of
             the negligence alleged, including a claim of negligence per
             se such as that asserted by the Port Authority here.
             Congini v. Portersville Valve Co., 470 A.2d 515 (Pa.
             1983) (permitting fact-finder to compare negligence per se
             of a host serving alcohol to a minor who illegally and
             willingly consumed alcohol); White by Stevens v.
             Southeastern Pa. Transp. Auth., 518 A.2d 810, 818 (Pa.
             Super. 1986) (it is “within the exclusive province of the
             jury to determine whether one shown to have been guilty
             of negligence per se, was guilty of greater negligence than
             another shown to have been guilty of some other kind of
             negligence per se or merely of negligence as a matter of
             fact and to compare the two and determine which is
             greater.”) (citations omitted).


(Majority Op. at 16.) (Emphasis in original). I agree with the majority that the jury
can make common-sense determinations to apportion causal negligence and that
comparative negligence applies regardless of the nature of the negligence. I do not
see, however, how those propositions support the majority’s conclusion that there
are “no limitations” on what the jury can consider, including the number and type of
specific duties violated. That suggests that if conduct can be considered a breach of
duty under both negligence-in-fact and negligence per se, the factual cause of the
injuries is somehow increased even though the underlying conduct is the same. See,


                                      DRP - 10
e.g., Drew v. Work, 95 A.3d 324, 338 (Pa. Super. 2014) (holding, inter alia, that the
trial court did not err in declining to charge a jury on negligence per se regarding an
alleged Vehicle Code violation where the specific statute “merely recites general
negligence principles and a charge related thereto would serve no purpose other than
to confuse the jury.”).


             The only support for that proposition is purportedly the majority’s
quotation from White by Stevens v. Southeastern Pennsylvania Transportation
Authority, 518 A.2d 810, 818 (Pa. Super. 1986), which itself is a quote from Johns
v. Secress, 126 S.E.2d 296, 298 (Ga. Ct. App. 1962). Johns involved comparing the
conduct of one party who was negligent per se with the other party who was
negligent-in-fact. The full quote from Johns is:

             But, negligence per se, of which the deceased was
             admittedly guilty, is no greater as a matter of law than
             negligence as a matter of fact, and it is the right and
             province of the jury to determine the degree or amount of
             negligence attributable to each party and whose
             negligence is greater and whose and what negligence was
             the proximate cause of the injuries complained of. While
             an act defined by the law as negligence per se is not
             issuable, in the sense that no issue may be made as to the
             act being or not being negligence, yet it is still within the
             exclusive province of the jury to determine whether one
             shown to have been guilty of negligence per se, was guilty
             of greater negligence than another shown to have been
             guilty of some other kind of negligence per se or merely
             of negligence as a matter of fact and to compare the two
             and determine which is greater.


Johns, 126 S.E.2d at 298. This passage does not support the proposition that a
party’s status as either negligent per se or negligent-in-fact can amount to a person

                                      DRP - 11
being more negligent. If anything, this passage supports the proposition that a
person found to be negligent per se is no “more” negligent than a person found
negligent-in-fact. This is because comparative negligence is measured by how
damages are caused from the conduct that constituted a breach of duty, not how the
determination that the breach of duty was made.


                                          III.
              In conclusion, it is irrelevant how the jury found that Plaintiff 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 Plaintiff’s injuries.


              I agree that the trial court should have given the negligence per se
charge. However, because the jury still found Plaintiff’s conduct negligent, the Port
Authority suffered no prejudice and is not entitled to a new trial based on the trial
court’s failure to give the negligence per se charge. Accordingly, I respectfully
dissent.



                                        _________________________________
                                        DAN PELLEGRINI, Senior Judge




                                       DRP - 12
