J-A09002-19

                                2019 PA Super 181

 RICHARD SMITH,                            :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 ANDREW J. WELLS                           :   No. 2254 EDA 2018


              Appeal from the Judgment Entered, July 25, 2018,
               in the Court of Common Pleas of Bucks County,
                   Civil Division at No(s): No. 2014-00874.


BEFORE:    KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

OPINION BY KUNSELMAN, J.:                                FILED JUNE 07, 2019

      In this appeal of a negligence case, the defendant’s version of events

undoubtedly establishes his careless driving. A jury, however, found he acted

within the standard of care. The trial court then refused to grant the plaintiff

judgment as a matter of law.

      This was error, which we now reverse.         We also hold that a driver’s

failure to stop in the assured clear distance ahead is negligence per se, under

the second clause of 75 Pa.C.S.A. § 3361. A new trial on causation and the

measure of damages (if any) is in order.

      Driving down the Pennsylvania Turnpike on the morning of April 24,

2012, Plaintiff Richard Smith saw traffic braking. He successfully stopped his

Buick within the assured clear distance between himself and the car ahead.

See N.T., 5/29/18, at 58.       Defendant Andrew J. Wells, who was driving a

Jeep Grand Cherokee behind Mr. Smith’s Buick, did not.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Mr. Wells testified, “I didn’t stop quick enough . . . and rear-ended the

car in front of me.” N.T., 6/1/18, at 24. By his own admission, Mr. Wells did

not see the Buick’s brake lights illuminate. Instead, by the time he noticed

Mr. Smith’s stopped vehicle, those warning lights “were already on.” N.T.,

5/29/18, at 65. Mr. Wells could not recall where he was looking before seeing

Smith’s illuminated brake lights. See Id. at 64-65.

      Mr. Wells jammed on his brakes in a last-ditch effort to avoid impact.

He failed. Mr. Wells’ Jeep hit the back of the Buick and propelled it into the

next, stopped car. That car was also forced into the car ahead of it. Mr. Wells’

failure to observe the stopped traffic thus created a four car pile-up. Id. at

61.

      Mr. Smith sued Mr. Wells for a host of physical injuries he claims resulted

from the accident. In his opening statement to the jury, defense counsel said

the collision was Mr. Wells’ “fault . . . no question about it.” Id. at 54.

      The entire trial and defense counsel’s closing argument focused on

whether the wreck actually injured Mr. Smith. See, e.g., N.T., 6/1/18, at 88-

100. The defense’s theory was that Mr. Smith, who had been in three prior

automobile accidents, already suffered from the aliments he sought to

attribute to Mr. Wells. At no point did Mr. Wells ask the jury to find that he

had driven carefully.

      Mr. Smith moved for a directed verdict that Mr. Wells negligently drove

his vehicle and so breached the standard of care as a matter of law. The trial

court denied that motion and authored a verdict slip asking the jury:

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       Do you find that Defendant Adam Wells was negligent?

                     Yes _____                   No _____

              If you answer Question #1 “YES”, proceed to Question #2.
              If you answer Question #1 “NO”, proceed to Question #3.1

Verdict Slip at 1. The jury answered that question in the negative.

       Mr. Smith moved for judgment notwithstanding the verdict (JNOV) on

the question of negligence, which the trial court denied. He also filed a post-

trial motion seeking the same result. The trial court also denied it.

       This timely appeal followed. Mr. Smith asks this Court to decide whether

“the evidence . . . established negligence [by Mr. Wells,] warranting a directed

verdict or judgment notwithstanding the verdict.” Smith’s Brief at 5. In the

alternative, he also requests a new trial on negligence. See id.

       When reviewing a trial court’s denial of a directed verdict and JNOV we

examine the trial record to decide “whether there was sufficient competent

evidence to sustain the verdict.” Birth Center v. St. Paul Companies, Inc.,

787 A.2d 376, 383 (Pa. 2001)). We must view the evidence in the light most

favorable to the verdict winner and give him the benefit of every reasonable

inference that arises from the facts of record. Id.



____________________________________________


1 We note the verdict slip’s direction to proceed to Question #3 after a “NO”
reply was unnecessary. Question #3 tells the jury to “[s]tate the amount of
money damages you award Plaintiff Richard Smith for past and future pain
and suffering,” which is pointless information if Mr. Wells was not negligent.
Verdict Slip at 2. The better direction would have been “If you answer
Question #1 ‘NO’, please sign the sheet and return to the courtroom.”

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      Mr. Smith’s motions for directed verdict and JNOV sought judgment as

a matter of law, based upon the trial court’s alleged misapplication of the law

of torts and a Pennsylvania statute. Those issues “are pure questions of law.

Thus, our standard of review is de novo, and our scope of review is plenary.”

Reott v. Asia Trend, Inc., 55 A.3d 1088, 1093 (Pa. 2012).

      The trial court should grant a directed verdict or JNOV to a moving party

when:

         one, the movant is entitled to judgment as a matter of law,
         or, two, the evidence was such that no two reasonable
         minds could disagree that the outcome should have been
         rendered in favor of the movant. With the first, a court
         reviews the record and concludes that, even with all factual
         inferences decided adverse to the movant, the law
         nonetheless requires a verdict in his favor, whereas, with
         the second, the court reviews the evidentiary record and
         concludes that the evidence was such that a verdict for the
         movant was beyond peradventure.

Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992) (citations omitted).

      Here, a verdict against Mr. Wells on whether he drove negligently in the

moments before he rear-ended Mr. Smith was beyond peradventure.             Our

review of the record reveals no facts favorable to Mr. Wells on the issue of his

negligence, nor does he identify any in his brief.

      Instead, Mr. Wells argues (as he did at trial) that the car wreck did not

cause Mr. Smith any harm.       See, e.g., Wells’ Brief at 4.   He claims “his

testimony that he was able to slow his vehicle before impact and the

photographs admitted as evidence at trial and showing extremely minimal

damage speak for themselves and clearly spoke to the jury.” Id. at 6-7. The

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pictures may be worth a thousand words, but they say nothing about how

safely Mr. Wells drove his car that day. They, like Mr. Wells’ testimony, speak

to whether his negligence was a legal cause of the harm for which Mr. Smith

sued.

        A plaintiff must prove four things in a negligence action: (1) a duty to

act or not act within “a reasonable standard of conduct for the protection of

others against unreasonable risks”; (2) breach of that duty; (3) a “close,

causal connection between the conduct and the resulting injury”; and (4) harm

to the plaintiff. W. Prosser, LAW OF TORTS § 30 at 143 (4th ed. 1971).

        The first and second elements “make up what the courts usually have

called negligence; but the term quite frequently is applied to the second

alone.” Id. When the trial court explained negligence to the jury, it defined

the term based solely upon the second element. The court said, “A person

who does something a reasonably careful person would not do under the

circumstances is negligent.” N.T., 6/1/18, at 77. Thus, by returning a verdict

of no negligence, the jury exculpated Mr. Wells on the second element and

found that he had conformed his conduct to the standard of reasonable care.

        Mr. Wells relies heavily upon Cirquitella v. C. C. Callaghan, Inc., 200

A. 588 (Pa. 1938) in his brief, as did the trial court in denying Mr. Smith’s

motion for JNOV. However, neither the trial court nor Mr. Wells attempt to

reconcile their positions with Cianci v. Burwell, 445 A.2d 809, 810 (Pa.

Super. 1982) or distinguish it. Even though Mr. Smith cited Cianci on appeal,

Mr. Wells does not even address that case in reply. See Wells’ Brief at ii. In

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that case, we held that when, as here, there was no contributory negligence

on the part of a rear-ended plaintiff, “[i]t is difficult to comprehend . . . how a

jury could have returned a verdict for the defendant-appellee. Such a verdict

is truly shocking to one’s sense of justice . . . .” Cianci at 809.

      We also find that Cirquitella is distinguishable. There, the defendant

was following 20 feet behind a funeral procession at about eight to ten miles

per hour through city streets. “The day was cold, and snow and ice were upon

the street.” Cirquitella, 200 A. at 589.

      Here, the accident occurred on an Interstate Highway – a type of road

unknown to the Cirquitella Court in 1938 – and there was no evidence of

inclement weather. Thus, we conclude that, at best, Cirquitella is a creature

of its time, confined to its unique, factual setting. See Commonwealth v.

Resto, 179 A.3d 18, 22 (Pa. 2018) (stating that “the holding of a judicial

decision is to be read against its facts”). Cirquitella offers little insight into

how drivers should conduct themselves, during rush hour, on the Turnpike, in

the 21st century.

      In 1976, the legislature passed the Vehicle Code. See 75 Pa.C.S.A. §§

101 – 9805. This Title established a statutory regime to regulate safe driving

on today’s highways. As such, the entire concept of negligence per se under

the Vehicle Code did not exist in 1938 when the Supreme Court of

Pennsylvania decided Cirquitella.       Thus, the trial court’s and Mr. Well’s

reliance upon the Cirquitella decision is misplaced.

      This Court has made clear, despite the Cirquitella holding that:

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         the mere happening of a rear-end collision does not [at
         common law] constitute negligence as a matter of law on
         the part of the [driver] in the rear . . . the manner in which
         an accident occurs is a circumstance to be considered in
         determining the issue of negligence. Where, as here, a
         vehicle has been struck in the rear while slowing for a traffic
         signal, there is an inference to be drawn that the driver of
         the offending vehicle either was not sufficiently vigilant or
         failed to have his vehicle under such control that he could
         bring it to a stop within the assured clear distance ahead.

Cianci, 445 A.2d at 810.

      The Cianci Court further explained that a driver who rear-ends a car

may inculpate himself by his own words. There, the defendant testified:

         Well, as [plaintiff] was approaching an intersection, I believe
         he could have made the green light. But he stopped
         suddenly, and that is what made me run into the back of his
         car.

Id. We vacated the defense verdict and remanded for a new trial.

      Similarly, Mr. Wells testified, “I didn’t stop quick enough, I guess, and

rear-ended the car in front of me.”      N.T., 6/1/18, at 24.     But Mr. Wells’

additional admissions make his negligence even clearer than the negligence

we held could be inferred in Cianci. Unlike Cianci, where the defendant at

least had the potential defense that the plaintiff’s car should not have stopped

at the traffic light, there was absolutely no reason for Mr. Wells to collide with

Mr. Smith, except for Mr. Wells’ unreasonably fast driving in rush-hour traffic.

Mr. Wells conceded at his deposition – which plaintiff’s counsel read to the

jury – that, when he first noticed Mr. Smith’s car in front of him, its brake

lights “were already on,” and it was stopped. N.T., 5/29/18, at 65.



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      If he had been acting as a reasonable person, Mr. Wells would have had

sufficient time to brake safely within the assured clear distance ahead, just as

Mr. Smith had done, and just as the driver in front of Mr. Smith had done, and

the driver in front of that driver had done, and so on, and so on up the

Turnpike. Thus, as a matter of law, the only person on the Turnpike that day

who did not live up to the standards of a reasonably prudent driver was Mr.

Wells, because a reasonably prudent person “invariably looks where he is

going, and is careful to examine the immediate foreground before he executes

a leap or bound . . . .” A. P. Herbert, MISLEADING CASES IN THE COMMON LAW,

1930, at 12.

      If everyone else driving on the highway left themselves enough distance

and time to bring their vehicles safely to a halt, the only logical conclusion is

that Mr. Wells did not, and he therefore acted unreasonably. Indeed, all the

other drivers conformed their speed to the mandates of the General Assembly,

which has legislated as follows:

         No person shall drive a vehicle at a speed greater than is
         reasonable and prudent under the conditions and having
         regard to the actual and potential hazards then existing, nor
         at a speed greater than will permit the driver to bring
         his vehicle to a stop within the assured clear distance
         ahead. Consistent with the foregoing, every person shall
         drive at a safe and appropriate speed when approaching and
         crossing an intersection or railroad grade crossing, when
         approaching and going around a curve, when approaching a
         hill crest, when traveling upon any narrow or winding
         roadway and when special hazards exist with respect to
         pedestrians or other traffic or by reason of weather or
         highway conditions.



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72 Pa.C.S.A. § 3361 (emphasis added).

      By its plan language, violation of this statute’s second clause establishes

Mr. Well’s negligence per se. That clause prohibits anyone from driving at any

“speed greater than will permit the driver to bring his vehicle to a stop within

the assured clear distance ahead.” Id. Our legislature used the disjunctive

conjunction “nor.” Thus, the clause following “nor” operates independently of

the first clause’s focus upon a “reasonable and prudent” driving speed “under

the conditions . . . and potential hazards” of a roadway. Id.

      The trial court erroneously confined its analysis of the statute to the first

clause. It focused exclusively upon whether a jury should determine that Mr.

Wells’ driving was “reasonable and prudent under the conditions’ as required

under 75 Pa.C.S.A. § 3361 . . . .” Trial Court Opinion, 11/13/18, at 3. By

limiting its reading of Section 3361 to only the first clause, the trial court

overlooked the second clause entirely.

      This myopic reading contravenes the Rules of Statutory Construction.

Our “General Assembly intends the entire statute to be effective and certain.”

1 Pa.C.S.A. § 1922. By analyzing only the first clause of 72 Pa.C.S.A. § 3361

the trial court rendered its second, more-exacting clause superfluous.

      Additionally:

         parts of statutes are in pari materia when they relate to the
         same persons or things or to the same class of persons or
         things.

             (b) Statutes in pari materia shall be construed together,
         if possible, as one statute.


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1 Pa.C.S.A. § 1932. Because 72 Pa.C.S.A. § 3361 deals with the same class

of persons – drivers on the Commonwealth’s roads – it must be interpreted in

pari materia with itself.

        Section 3361 is a unified statute on safe-driving speeds and distances,

and we must give all of its clauses force and effect. Interpreting the statute

in this light, we hold that it prohibits two, distinct forms of illegal driving. The

first is driving at any speed that is unreasonable and imprudent for the

conditions and hazards of the road. The second is driving at any speed that

prevents a driver from fully braking before striking a car, pedestrian, or other

object ahead. The latter violation, if committed, gives rise to negligence per

se on the part of the driver striking the car, pedestrian, or other object ahead,

because the legislature intended to protect all of them when it enacted Section

3361.

        Here, Mr. Wells drove at a speed that made it impossible for him to stop

his vehicle within the assured clear distance ahead, because that distance

ahead ended where Mr. Smith’s bumper began. The trial court erred in its

statutory construction when it did not find Mr. Wells’ violation of second clause

of Section 3361 to be negligence per se.

        Mr. Wells disobeyed that clause and thereby breached the duty of care

the General Assembly has prescribed. He claimed no sudden emergency or

any other affirmative defense (such as brake-failure, ice on the highway, or




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Mr. Smith’s contributory negligence) to excuse this rear-end collision.2 Thus,

the only reason for this accident was Mr. Wells’ obvious failure to conform his

conduct to the dictates of 72 Pa.C.S.A. § 3361. The trial court’s inability to

recognize that simple truth and its refusal to award Mr. Smith judgment as a

matter of law was error.

          Mr. Smith’s first appellate issue is meritorious, and it affords him full

relief.

          Judgment vacated. Order denying JNOV reversed.

          Case remanded for a new trial on causation and damages.

          Jurisdiction relinquished.

          Judge Pellegrini joins this Memorandum.

          Judge Murray concurs in the result.




____________________________________________


2 As with any claim of negligence per se, the driver of the succeeding vehicle
may defend by pleading and proving an involuntary violation of the statute at
issue. When negligence per se is imposed, the “standard of conduct is taken
over by the court from that fixed by the legislature, and jurors have no
dispensing power by which to relax it, except in so far as the court may
recognize the possibility of a valid excuse for disobedience of the law.”
Bumbarger v. Kaminsky, 457 A.2d 552, 555 (Pa. Super. 1983) (quoting W.
Prosser, LAW OF TORTS § 36 at 200 (4th ed. 1971) (emphasis in original)). In
Bumbarger, for example, the defendant ran a stop sign and collided with a
car in the intersection. He claimed an involuntary violation of the law, because
ice on a steep hill made it impossible for him to obey the stop sign at the
bottom.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/19




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