Thursday, May 3, 2012

Negligence Per Se and Comparative Negligence in Pennsylvania

Picking up where I left off in my earlier post Negligence Per Se Not a Bar To Comparative Negligence...

In Barrie, the administratrix's son, a minor, died after a night of drinking alcohol with two friends. She filed a wrongful death and survival action against the Liquor Control Board, for negligence in selling liquor to a minor, and the purchaser for negligence in buying and furnishing alcohol to a minor. Her attorneys sought to establish that the defendants were negligent per se, which, in turn, obviated any inquiry into the decedent’s own negligence. Specifically, on appeal, the plaintiff argued that the trial court erred when it instructed the jury on the minor decedent's contributory negligence and in allowing evidence of the minor decedent's prior drinking episodes to be introduced.

The Plaintiff argued that the decedent's contributory or comparative negligence is irrelevant when a defendant has violated section 4-493(1) of the Liquor Code. The Plaintiff first raised this issue with a motion in limine prior to trial, to prevent the LCB from using contributory negligence as a defense. As had been the case law to date, plaintiff argued that section 4-493(1) created a special class of minors in need of protection from the effects of alcohol, and that by applying section 483 of the Restatement (Second) of Torts a minor could not as a matter of law be contributorily negligent by violating a statute enacted for the minor's benefit. This motion was denied and at the conclusion of the evidence a charge on comparative negligence was given to which plaintiffs counsel timely.

The applicable Restatement section is as follows:

"§ 483. Defense to Violation of Statute --HN2

"The plaintiffs contributory negligence bars his recovery for the negligence of the defendant consisting of the violation of a statute, unless the effect of the statute is to place the entire responsibility for such harm as has occurred upon the defendant." Restatement (Second) of Torts § 483.

In support of her argument the plaintiff relied on the same two cases listed in the current Jury Instructions Majors v. Brodhead Hotel and Schelin v. Goldberg. The plaintiff argued that Majors and Schelin controlled and plaintiff’s contributory negligence should not have been presented to the jury.

The LCB argued that plaintiff’s reliance on Majors and Schelin was misplaced in that those cases were decided prior to the enactment of the Comparative Negligence Act. The LCB further argues that application of section 483 was necessary when the law was such that even slight contributory negligence on the part of a minor plaintiff would be a complete bar to recovery, but that today, with the advent of comparative negligence, the harshness of the prior rule is alleviated and the need to apply section 483 removed.

The LCB suggested that instead, Congini v. Portersville Valve Co., 470 A.2d 515 (Pa. 1983) and Thomas v. Duquesne Light Co., 545 A. 2d 289 (Pa. 1988), both decided after enactment of the Comparative Negligence Act, should control. The Court in Barrie, agreed.

In Congini, the Supreme Court held that a social host was negligent per se in serving alcohol to a minor, but also held that a host could assert as a defense the minor's contributory negligence. In Congini rather than adopting the Liquor Code the Supreme Court applied the Crimes Code as setting the standard of conduct to be measured. Justice McDermott writing for the court stated:

"Our legislature has made a legislative judgment that persons under 21 years of age are incompetent to handle alcohol: Under section 6308 of the Crimes Code, 18 Pa. C. S. § 6308, a person 'less than 21 years of age' commits a summary offense if he 'attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.' Furthermore, under section 306 of the Crimes Code, 18 Pa. C. S. § 306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor." Congini at 161.

As a result, the Barrie Court was not persuaded that a minor plaintiff served in violation of the Liquor Code by a licensee should be excused from all responsibility for his own per se negligence when a minor plaintiff served by a social host in violation of the Crimes Code would be fully accountable for his per se negligence, based only on a fortuitous circumstance that the provider was licensed as opposed to non-licensed. Additionally, in Thomas a minor was injured after becoming intoxicated and falling from an electrical transmission tower. In an action brought by the minor's parents a default judgment was entered against the adult who purchased the beer for the minor and a compulsory non-suit was entered in favor of the beer distributor. The jury found that the causal negligence of the minor plaintiff was greater than 50 percent and verdicts in favor of the remaining defendants were entered. On appeal the Superior Court reversed, holding that the issue of whether or not liability could be imposed upon a licensee who sells alcohol to an adult under circumstances in which the licensee knew or should have known that the adult was purchasing the alcohol for use by minors presented an issue of fact which should have been submitted to the jury. The court further stated that:

"Upon retrial, the jury should be required to determine the causal negligence, if any, of all defendants, as well as that of the minor plaintiff, and then apportion the same among the parties. This will now include the negligence, if any, of the beer distributor. Recovery by the plaintiffs against all defendants will be precluded only if the minor plaintiffs negligence exceeds the combined negligence of all defendants." Thomas, supra.

Hence, the Thomas case is in accord with the decisions in Congini and more recently Matthews v. Konieczny, 527 A.2d 508 (Pa. 1987) that a minor's comparative negligence is for the jury.

There is still a little bit more to this story which I will tie up in an upcoming post.

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1 comment:

  1. Studying for the bar. This was my precise question. Thank you!