       We granted review in this case to consider the question of whether the failure to

give a negligence per se jury instruction was an error that “was somehow relevant to the

apportionment of factual cause.” Grove v. Port Auth. of Allegheny Cty., 193 A.3d 343

(Pa. 2018). In my view, this review encompasses two distinct questions: first, whether

the trial court erred in failing to give the four requested negligence per se instructions,

and second, if there was error, whether a new trial is required. Reilly by Reilly v. SEPTA,

489 A.2d 1291, 1305 (Pa. 1985) (in reviewing a jury charge for error, “we look to whether

or not an error was committed and whether that error was prejudicial to the complaining

party”). Both the Majority and the Chief Justice in dissent read our grant of allocatur to

presume that the trial court erred in failing to give all four of the requested negligence per

se instructions and proceed on that basis. As a result, the Majority and the Chief Justice

answer only the second question, focusing exclusively on whether said (alleged) multiple

errors prejudiced the Port Authority in the jury’s comparative negligence analysis.

       While I do not disagree that our grant of allowance of appeal can be fairly read to

assume trial court error, in my view the Commonwealth Court’s lack of analysis in its

conclusion that the negligence per se charges were required 1 creates confusion in this

area of the law. Moreover I fear that the bench and bar may conclude that by not

addressing the Commonwealth Court’s conclusion regarding the trial court’s error, we are




1 The Commonwealth Court did not, as I do hereinbelow, review the statutory provisions
that the Port Authority claimed were relevant to the facts in this case. Instead, the court
concluded that the trial court should have advised the jury of all of these statutory
provisions on the grounds that they were relevant to the jury’s comparative negligence
analysis, a position with which the Majority and I strongly disagree, for the reasons set
forth hereinbelow. Grove v. Port Auth. of Allegheny Cty., 178 A.3d 238, 247 (Pa. Commw.
2018).


                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 2
blessing it. Thus, while I believe there was trial court error, for the benefit of preserving

our established precedent on the issuance of per se negligence instructions, I analyze

the question of whether there was trial court error.

       In my view the trial court did not err in refusing to give all four negligence per se

instructions, but rather erred only in failing to give one of the four instructions requested

by the Port Authority.2 With respect to the second question, I join in the Majority’s

determination that the trial court’s error was harmless, as it was not prejudicial to the Port

Authority because the jury nevertheless found Grove negligent. Majority Op. at 16-17. I

write separately on this issue to emphasize that when a jury deliberates with respect to

comparative negligence, it is the conduct of the parties that is relevant to this inquiry, not

the description of the conduct as either negligence or negligence per se.

       Turning to the first question of whether the trial court erred in refusing to give the

four negligence per se instructions requested by the Port Authority, we examine the jury

charge as a whole to determine “whether the trial court committed a clear abuse of

discretion or error of law[.]” Polett v. Pub. Commc’n, Inc., 126 A.3d 895, 930 (Pa. 2015).

As the Superior Court stated in Ottavio v. Fibreboard Corp., 617 A.2d 1296, 1302 (Pa.

Super. 1992) (en banc), as a general rule the refusal to give a requested instruction, if

accurate, is ground for a new trial “unless the substance thereof has otherwise been

covered in the court’s general charge.”




2  The limited nature of the trial court’s actual error (as opposed to presumed error) is
significant, particularly given the Chief Justice’s contention that the trial court’s failure to
“instruct the jurors about highly material statutory provisions specifically defining multiple
duties owed by Appellant” was sufficiently severe to require the grant of a new trial, which
view is aligned with the Commonwealth Court’s holding. Dissenting Op. at 4.


                     [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 3
              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. [Stewart v. Motts, 654 A.2d 535, 540 (Pa. 1995)] (citing
              Glider v. Commonwealth Dept. of Hwys., 435 Pa. 140, 255
              A.2d 542, 547 (1969)); see also Price v. Guy, 558 Pa. 42, 735
              A.2d 668, 670–71 (1999) (“[E]rror will be found where the jury
              was probably mislead by what the trial judge charged or where
              there was an omission in the charge.”).

Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069–70 (Pa. 2006).

       The Port Authority requested the trial court to instruct the jury that Grove was

negligent per se with respect to four sections of the Vehicle Code, 75 Pa.C.S. §§ 101 –

9805. In particular, the Port Authority sought a jury instruction in the following form:

                     75 Pa.C.S. § 3542

                     (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. § 3543

                     (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. § 3544

                     (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.

                                   *      *       *




                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 4
                      (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.

               Port Authority of Allegheny County claims that Joan Grove
               violated this law.

               If you find that Joan Grove violated this law, you must find that
               Joan Grove was negligent.

               If you find that Joan Grove did not violate this law, then you
               must still decide whether Joan Grove was negligent because
               she failed to act as a reasonably careful person would under
               the circumstances established by the evidence in this case.

Port Authority’s Proposed Points for Charge, 9/26/2016, at 2. This charge closely tracks

the language of Pennsylvania’s Suggested Jury Instruction, Pa.S.S.J.I. (Civ) 13.100,

which incorporates the statutory provisions upon which the negligence per se charge

would be based.

         The Subcommittee Note to the Pennsylvania Suggested Jury Instruction for

Negligence Per Se, 13.100, indicates that “[t]his instruction is to be given when a statute

specifically mandating certain conduct or prohibiting certain action is applicable.”

Pa.S.S.J.I. (Civ) 13.100 (subcommittee note).           In determining whether the court

committed an error of law in declining to give an instruction regarding negligence per se,

we must examine whether the provision (1) is factually relevant to determining the duties

of the parties, see, e.g. Learn v. Vivian, 171 A.2d 783 (Pa. 1961), and (2) creates a

standard of care more specific than the reasonable man standard for common law

negligence, see, e.g., Shamnoski v. PG Energy Div. of S. Union Co., 858 A.2d 589 (Pa.

2004).




                     [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 5
       First, in Learn, a case involving a pedestrian struck by a vehicle turning left at an

intersection, the plaintiff-pedestrian introduced evidence to show that the defendant-

driver had made a left turn from the wrong lane, i.e., from the right-most lane of the

highway on which he had been traveling. The trial court refused to provide the jury with

a charge based upon a statutory provision requiring a driver to make a left turn while

keeping as close as practicable to the center of the intersection. Learn, 171 A.2d at 784.

This Court indicated that an instruction on this statutory provision was important to inform

the jury of the specific rights and duties of both the driver and pedestrian in this

circumstance:

              The Legislature in its wisdom has declared, so that motorists
              do not have to guess as to what is the safest way in which to
              make turns at intersections, that motorists intending to turn left
              at intersections, must, before reaching the intersection, be
              moving in a lane as close as possible to the center line.
              Because of the promulgation of this law, the pedestrian has
              the right to assume that if he sees a car at the extreme right
              of the street on which he is traveling, the driver has no
              intention of turning left into the intersection street.
Id. Because a negligence per se instruction would have informed the jurors with respect

to the rights and obligations imposed by statute when a car is turning left while a

pedestrian is crossing, this Court affirmed the trial court’s grant of a new trial based upon

its erroneous omission of the charge.

       Second, in Shamnoski this Court clearly explained when a negligence per se

instruction is required. We indicated that “[f]or a legislative enactment to be considered

as ‘fixing a standard for all members of the community, from which it is negligence to

deviate,’ the act must first of all provide[ ] that under certain circumstances particular acts

shall or shall not be done.” Shamnoski, 858 A.2d at 601 (quoting Beaver Valley Power

Co. v. National Engineering & Contracting Co., 883 F.2d 1210, 1221 (3rd Cir. 1989)). The

language of the statute must be scrutinized to decide whether it is sufficiently “specific as


                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 6
to leave little question that a person or entity found in violation of it deviated from a

reasonable standard of care.” Id. at 601-02. We observed, by way of example, that

section 3361 of the Vehicle Code provided a very general rule to the effect that “[n]o

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… .” Id.

We explained that because section 3361 did not identify any specific speeds that may be

exceeded, it did no more than restate the reasonable man standard for common law

negligence. Id. Conversely, section 3362 set forth the specific numeric limits on vehicle

speed which every Pennsylvania driver must obey in all circumstances. Id. As such, a

negligence per se instruction is appropriate for violations of section 3362, but not for

section 3361.

       With these foundational principles having been established, I turn to the present

case. The Port Authority sought instructions incorporating the language of the four cited

provisions of the Vehicle Code on which it sought to premise Grove’s negligence per se,

75 Pa.C.S. §§ 3542(b), 3543(a), 3544(a), and 3544(d). Port Authority argues that it was

entitled to an instruction based upon testimony at trial that Grove crossed Montour Way

outside of the marked crosswalk, never looked for cars on Sixth Avenue and stepped

directly onto Sixth Avenue into the path of a Port Authority bus without yielding the right

of way. Port Authority’s Brief at 10-11. By comparison, Grove argues that the statutory

provisions referenced by the Port Authority do not support a negligence per se instruction

in this case, because there was no evidence that Grove “intended … or attempted to

cross Sixth Avenue.” Grove’s Brief at 10. She further asserts that the Vehicle Code, and

right-of-way provisions specifically, are not suitable for negligence per se because they

do not impose absolute liability for violations. She argues that the jury “must still decide

if the pedestrian exercised due care.” Id. at 24-25.




                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 7
       Starting with 75 Pa.C.S. § 3542(b), this section of the Vehicle Code 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 hazard.” 75 Pa.C.S. § 3542(b).

The trial court did not err in declining to give a negligence per se charge on this statutory

provision. The language of this section merely prohibits a pedestrian from moving into

the path of a vehicle which is “so close as to constitute hazard,” and in so doing merely

advises pedestrians to act as a reasonable person would when moving close to an

oncoming vehicle. This provision is thus not suitable for a negligence per se instruction

because it only expresses the familiar and flexible reasonable man standard. Shamnoski,

858 A.2d at 602.

       It was likewise not error to decline to give a negligence per se charge for 75

Pa.C.S. § 3544(a) to instruct the jury that “[w]here a sidewalk is provided and its use

practicable, it is unlawful for a pedestrian to walk along and upon an adjacent roadway.”

75 Pa.C.S. §3544(a). The Port Authority does not explain the relevance of this section.

When she was struck by the bus, Grove was crossing Montour Way, near an intersection

and not alongside any sidewalk. Because there was no available sidewalk, this provision

is simply inapplicable.

       Next, section 3544(d) of the Vehicle Code provides that “[e]xcept as otherwise

provided in this subchapter,3 any pedestrian upon a roadway shall yield the right-of-way

to all vehicles upon the roadway.” 75 Pa.C.S. § 3544(d). In my view, it was error for the


3  The introductory phrase to section 3544(d) – “[e]xcept as otherwise provided in this
subchapter” – obviously refers to section 3542(a), which indicates that “[w]hen traffic-
control signals are not in place or not in operation, the driver of a vehicle shall yield the
right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within
any unmarked crosswalk at an intersection.” 75 Pa.C.S. § 3542(a). Sections 3544(d)
and 3542(a), taken together, indicate that the pedestrian has the right of way when inside
of a crossway at an intersection or any other marked crosswalk, but vehicles on the
roadway have the right of way when the pedestrian is not inside of a crosswalk.


                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 8
trial court not to have given a negligence per se instruction with respect to this provision.

Section 3544(d) indicates that where a pedestrian is on a roadway, she must yield the

right of way to oncoming vehicular traffic on that roadway. The record here supports

giving this instruction on at least two evidentiary bases. Meyer v. Union R. Co., 865 A.2d

857, 866 (Pa. Super. 2004) (holding that a trial court should charge on a point of law when

there is some factual support in the evidentiary record to support the charge). First, there

was substantial testimony, including from both of the non-party witnesses, that Grove,

upon leaving the crosswalk on Montour Way, ventured onto Sixth Avenue, at which time

she was struck by the Port Authority bus traveling on Sixth Avenue. N.T., 9/21/2016, at

9 (Dante Anglin); N.T., 9/27/2016, at 166-67 (Joyce Broadwick). Alternatively, Grove

testified while she left the crosswalk on Montour Way, she nevertheless remained at all

times on Montour Way and was struck by the Port Authority bus when it encroached onto

Montour Way. N.T., 9/21/2016, at 45. In either instance, it was within the jury’s province

to conclude that Grove and the Port Authority bus were on the same roadway and that

Grove, without looking behind her for oncoming traffic, failed to yield the right of way to

the bus. As a result, it was error for the trial court not to give a negligence per se

instruction, since without it the jury was left without knowing that Grove, rather than the

Port Authority bus, had the legal obligation to yield the right of way. See Jenkins v. Wolf,

911 A.2d 568, 571 (Pa. Super. 2006). Without knowing which party had the right of way,

the jury was left with the wrong impression that both the pedestrian and the bus had the

same obligation to look out for each other. Id.

       Section 3543(a) of the Vehicle Code mandates 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.” Section 3543(a)

arguably would apply in the circumstance presented by Grove’s testimony, namely where




                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 9
she remained on Montour Way (but outside of the crosswalk) and was hit by the Port

Authority bus after it veered off of Sixth Avenue onto Montour Way. It was not error for

the trial court not to provide a negligence per se instruction, however, as it would have

been merely cumulative of an instruction pursuant to section 3544(d), which likewise

covers this same sequence of events and would have provided no additional guidance to

the jury with respect to the right of way. It is not an abuse of discretion or an error of law

for a trial court not to provide a jury instruction cumulative of other jury instructions.

Stewart v. Motts, 608, 654 A.2d 535, 541 (Pa. 1995).4

       Since in my view the trial court erred in its failure to give a negligence per se

instruction with respect to section 3544(d), I turn to the second question on which this

Court granted discretionary review – namely whether the failure to give the requested

instruction resulted in prejudice to the Port Authority such that a new trial is required. The

Commonwealth Court determined that “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.” Grove, 178 A.3d at 247. It described

apportionment as a practical and case-specific inquiry which allows the jury to consider

“all circumstances,” including “the number and type of specific duties violated in addition


4  The Port Authority contends that, at a minimum, the trial court should have reconsidered
and provided the requested negligence per se instructions when the jury posed written
instructions to the trial court during its deliberations. In particular, the jury asked, “What
is the pedestrian right of way law in the City of Pittsburgh?” The trial court responded that
“[t]he right of way law is not an issue in this case.” N.T., 9/27/2016, at 326.

This Court has stated, “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.” Worthington v. Oberhuber, 215 A.2d
621, 621 (Pa. 1966). The trial court’s response was an incorrect statement of the law, as
rights of way clearly were a relevant issue in the case. In response to the jury’s question,
the trial court should have provided a negligence per se instruction with respect to section
3544(d), for the reasons discussed in the text.


                   [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 10
to the general duty of a reasonable person to protect herself and others.” Id. at 248.

Therefore, it found that the failure to instruct the jury could have impacted the jury’s

determination as to how to apportion negligence. Id.

       Judge Pelligrini dissented. He expressed the view that the trial court should have

given the negligence per se charge, but that its failure to do so did not result in any

prejudice that would necessitate the grant of a new trial.         Grove, 178 A.3d at 252

(Pellegrini, J., dissenting). He explained that the distinction between negligence per se

and negligence is irrelevant to determining causation because it is the “conduct” that

factually causes the injury. Accordingly, Grove’s stepping on Sixth Avenue when she

moved outside of the crosswalk on Montour Way was the conduct that contributed to the

injuries, regardless of whether that conduct was categorized as negligence or negligence

per se. Id. Judge Pellegrini challenged the majority’s position that the comparative

negligence apportionment charge (i.e., Pa.S.S.J.I. (Civ) § 13.190) allows the jury to

consider all circumstances without limitation in determining how to apportion causation,

including, “the number and type of specific duties violated[.]” Id. at 254 (citing id. at 248).

Although the “jury may make common-sense determinations” to apportion causation, the

jury is directed to focus on the underlying conduct and not the description of the conduct

as negligence or negligence per se. Id. at 254-55. Judge Pellegrini also pointed out that

the majority only cited to one case in support of its conclusion that causation can vary

based upon the categorization of negligence, White by Stevens v. Southeastern

Pennsylvania Transportation Authority, 518 A.2d 810, 818 (Pa. Super. 1986) (citing Johns

v. Secress, 126 S.E.2d 296, 298 (Ga. Ct. App. 1962)). However, he correctly noted that

the case only recognizes that it is within the exclusive province of the jury to apportion

negligence and provides no support for the majority’s position that the jury may actually

consider the number of instances of negligence in apportioning negligence.




                    [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 11
       In reversing the Commonwealth Court, the Majority faults the Commonwealth

Court for failing to conduct a genuine prejudice analysis. Majority Op. at 19. Specifically,

the Majority critiques the Commonwealth Court’s determination that the omission of the

negligence per se instruction “could have impacted the jury’s apportionment decision” as

a finding which falls short of the legal requirement that the appellate court must

affirmatively conclude that the omission of the instruction “would have impacted the

outcome.” Id. at 16 (emphasis in original). Next, the Majority determines that “any

omission of a negligence per se charge was not a fundamental error and Port Authority

was not prejudiced” in this case, because the jury – despite the lack of instruction

regarding negligence per se – ultimately found Grove negligent. Id. at 16-17. The

Majority emphasizes the elements of negligence, drawing attention to the fact that the

categorization of negligence impacts the duty and breach requirements, but has no

bearing on the latter two elements, which require consideration of causation and

comparative negligence. Id. at 16-17.

       I agree with the Majority’s analysis.         I would also emphasize that the

Commonwealth Court mischaracterized the nature of the apportionment determination as

one which allows the jury to consider “all circumstances,” including “the number and type

of specific duties violated in addition to the general duty of a reasonable person to protect

herself and others.” Grove, 178 A.3d at 248. As Judge Pellegrini cogently explained, the

instruction on negligence per se merely assists the jury in categorizing certain conduct as

negligent, it does not aid the jury in determining whether that conduct contributed to the

injury. See Ford v. Philadelphia Housing Authority, 848 A.2d 1038, 1050 n.11 (Pa.

Commw. 2004) (providing that negligence per se establishes duty and breach but does

not answer the question of causation). Thus, the jury was not entitled to consider “all

circumstances” including “the number and type of specific duties violated[,]” Grove, 178




                   [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 12
A.3d at 248, but instead, was required to focus on whether the conduct actually caused

the injury when it was apportioning negligence.

       Put plainly, conduct causes an injury, not the categorization of the conduct as

negligence or negligence per se. As stated by Judge Pellegrini, “[f]actual cause is

determined by comparing the ‘conduct’ of the parties.” Grove, 178 A.3d at 254. Indeed,

this Court has explained the same principle:

              A finding of negligence per se does no more than satisfy
              plaintiff’s burden of establishing that a defendant’s conduct
              was negligent. See, Section 288 B of the Restatement of
              Torts Second; Prosser, Torts Ch. 5 § 36 pp. 200-201 (4th ed.
              1971). However, the burden remains upon plaintiff to
              establish that his complained of injuries were proximately
              caused by the statutory violations. Kaplan v. Kaplan, 404 Pa.
              147, 171 A.2d 166 (1961).

Congini by Congini v. Portersville Valve Co., 470 A.2d 515, 518 n.4 (Pa. 1983) (holding

that hosts of a party who served a minor with alcoholic beverages until the point of

intoxication were negligent per se in serving that alcohol). Likewise, the Pennsylvania

Suggested Jury Instructions articulates this concept by stating that, in order to recover,

the plaintiff’s “conduct must have been a factual cause in bringing about harm.”

Pa.S.S.J.I. (civ) 13.20 (emphasis added). Here the trial court properly instructed this jury

that “[t]o be a factual cause, the conduct must have been an actual, real factor in causing

the harm.” N.T., 9/27/2016, at 299. Thus, “[i]n 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.” Grove, 178 A.3d at 254.

       “Negligence per se” is simply a label for the conduct. It functions as a shortcut for

the jury to resolve the question of negligence simply based upon violation of a specific

and relevant law. However, once the jury resolves that question and finds negligence per



                   [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 13
se, the label has no further usefulness. The label itself has no bearing on the jury’s

consideration of causation, which depends entirely on its view of the conduct.

      In this case, because under any description of Grove’s conduct, the jury’s

determination was based on her encroaching into Sixth Avenue without looking behind

her, the categorization of the conduct with the labels “negligence” or “negligence per se”

could have no legitimate impact on the causation determination. The Commonwealth

Court was incorrect to suggest that the jury could consider “the number and type of

specific duties violated” when it was apportioning negligence. Grove, 178 A.3d at 248.

Determining the comparative negligence of the parties is not a matter of counting the

number of ways that the negligence of each of the parties may be characterized. Instead,

the jury was required to focus its consideration on whether the conduct (no matter how

categorized) was “an actual, real factor in causing the harm.” N.T., 9/27/2016, at 299.




                   [J-19A-2019 and J-19B-2019] [MO: Mundy, J.] - 14
