Thursday, January 14, 2010

Commonwealth Court Rejects Negligence Per Se Argument in Auto Accident Case

In the recent case of Behney v. Bolich, 2009 WL 4877762 (Pa.Cmwlth. Dec. 18, 2009), the Commonwealth of Pennsylvania upheld a defense verdict in a case where the Defendant had lost control of her vehicle due to ice on the roadway and fishtailed into the oncoming lane of travel, colliding with the Plaintiff's vehicle.

This decision addresses an appeal from the trial court's denial of the Plaintiff's motion for post-trial relief in which the Plaintiff asserted, in part, that the trial court should have found the Defendant to be negligent per se, thereby allowing the case to proceed to the jury on the damages issues alone. The Plaintiff asserted that the Defendant was negligent per se in terms of excessive speed above the posted speed limit, driving on the wrong side of the road, and failing to pass a vehicle on the right.

The Defendant disputed at trial the allegations that she was speeding or driving too fast for the conditions. Rather, she asserted that she was traveling along in a reasonable and safe fashion at the speed limit when she suddenly, unexpectedly, and unfortunately encountered ice in a dip in the roadway. Other witnesses, including another driver and the police officer, confirmed the presence of the ice on the road.

The Commonwealth Court noted that, although there was no question that the Defendant's vehicle crossed into the northbound lane, the Defendant claimed that the accident was due to the presence of ice and slush on the road that caused her to lose control of her car. In addition, the issues of whether the Defendant violated the Vehicle Code by speeding, driving too fast for road conditions or passing improperly at the time of the accident were disputed.

Accordingly, the Commonwealth Court agreed that the issue of whether the Defendant's negligence was a cause of the accident was for the jury to decide. As such, it was held that the trial court did not err in refusing to direct a verdict in the Plaintiff's favor.

It is also noted that, in this case, the appellate court upheld the non-suit that was entered against PennDOT on the grounds that there was no evidence that PennDOT had prior notice of the icy conditions such that they should have remedied the situation at some point before the accident occurred.

For those of you who may not have access to Westlaw, this Opinion can also be viewed at

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