Friday, April 27, 2012

Negligence Per Se Not a Bar to Comparative Negligence

Applicability of Contributory and/or Comparative Negligence in Regards to Negligence Per Se.

The Pennsylvania Suggested Standard Civil Jury Instructions, in my opinion, are where all plaintiffs attorneys should start when beginning to formulate their case plan. I reference the Jury Instructions several times a week for my cases and my blog posts. The Instructions give you the law as it will likely be read to the jury. This is the language you need to understand and fit your case to. What is particularly helpful with the Jury Instructions is that they come with a detailed explanation of the case law behind each proposed instruction. Most of the time the case law provided is still good law. Sometimes, however, the case law is outdated. Such appears to be the case with the jury instruction (at least as of 2008) on Negligence Per Se.

Specifically, the supporting law to the Jury Instructions relies on Stehle v. Jaeger Automatic Machine Co., 74 A. 215, 216 (Pa. 1909)(minor protected by child labor law) and Majors v. Brodhead Hotel, 205 A.2d 873, 876 (Pa. 1965)(intoxicant protected by Liquor Code) for the contention that one is not barred by their own contributory negligence where the statute violated by the defendant was enacted to protect a class of persons deemed unable to exercise self-protective care. Reading this law it would seem that so long as the defendant violated a law (negligence per se) specifically designed to protect those “unable to protect themselves” the plaintiff could never be held accountable for their own contributing negligence.

This concept, however, appears to have been abrogated following Pennsylvania’a enactment of the Comparative Negligence Act. In fact, this argument was specifically shut down for this exact reasoning in Barrie v. Pennsylvania Liquor Control Bd., 1990 Pa. Dist. & Cnty. Dec. LEXIS 335, 9-12 (Pa. C.P. 1990)- an opinion of the Allegheny Court of Common Pleas following plaintiff's motion for post trial relief.

Because this is a long post, I will continue it in my next post.

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