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GEORGE R.H. ELDER v. ADAM ORLUCK (09/25/86)

decided: September 25, 1986.

GEORGE R.H. ELDER, APPELLEE,
v.
ADAM ORLUCK, APPELLEE, V. BOROUGH OF HARRISVILLE, APPELLANT



Appeal from the Order Entered in the Superior Court on September 14, 1984, at No. 1164 Pittsburgh, 1982, Affirming the Judgment Entered September 8, 1982, in the Court of Common Pleas of Allegheny County, Pa., Civil Division at No. G.D. 78-20362, Nos. Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration and decision of this case. Flaherty, J., filed a concurring opinion joined by Hutchinson and Zappala, JJ. Zappala filed a concurring opinion joined by Flaherty and Hutchinson, JJ. McDermott, J., dissents.

Author: Larsen

[ 511 Pa. Page 404]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

This appeal presents the issue whether in an action under the Pennsylvania Comparative Negligence Act*fn1 involving more than one defendant, should the negligence of the plaintiff be compared to the combined negligence of all defendants or should plaintiff's negligence be compared to the separate and individual negligence of each defendant? This question is one of first impression before this Court requiring interpretation of the Comparative Negligence Statute. The Superior Court, in affirming the lower court, held that "[T]he Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. § 7102, will bar recovery by a plaintiff only when his causal negligence is greater than that of the combined or aggregate negligence of all the defendants guilty of causal negligence in connection with plaintiff's injuries."*fn2 We agree, and therefore we affirm.

This lawsuit arose out of a motor vehicle accident that occurred on Memorial Day, May 30, 1977. The mishap took place on Route 8, a short distance from the Borough of Harrisville, appellant in this case. George R.H. Elder, appellee, was operating his vehicle in a southerly direction on Route 8, proceeding toward Harrisville. At that time the appellant Harrisville was in the process of staging a Memorial Day parade. Because of the planned parade route, a portion of Route 8 was blocked. This caused a line of

[ 511 Pa. Page 405]

    traffic to back up on Route 8, which at that point was a hill leading into Harrisville. As the appellee approached the stopped line of vehicles, he had already slowed down and was travelling at approximately 10 miles per hour. Appellee was braking his vehicle and bringing it to a stop when he was "rear-ended" by an automobile operated by original defendant Adam Orluck.*fn3 As a result of the accident, appellee Elder sustained serious injuries to his person for which he brought suit. The defendant below, Adam Orluck, joined the appellant Harrisville as an additional defendant on the theory that appellant was negligent in failing to warn oncoming traffic of the parade; in failing to direct traffic at the site; in failing to detour traffic around the parade site; in causing a dangerous condition; and in otherwise failing to exercise due care. After trial the jury returned a verdict in favor of appellee Elder. The jury apportioned fault as follows: 25% to appellee Elder; 60% to original defendant Orluck; and, 15% to appellant Harrisville. The appellant filed a motion for judgment N.O.V. and/or a new trial arguing, inter alia, that appellee cannot recover from appellant because appellee was found to be more negligent than appellant. Appellant Harrisville's motion for judgment N.O.V. and/or a new trial was denied and judgment was entered on the verdict against both Orluck and appellant Harrisville. On appeal, the Superior Court affirmed.

Appellant Harrisville argues that under the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. § 7102, appellee is precluded from recovery against the appellant because the negligence assigned to appellee (25%) is greater than the negligence assigned to the appellant (15%). Appellant Harrisville contends that in considering appellee's attempt to recover from appellant, appellee's negligence should be compared only with the negligence of the appellant. Since appellee's negligence exceeds that of appellant, it is asserted that recovery should be and is barred. In other words,

[ 511 Pa. Page 406]

    the appellant argues that in a case, such as the instant one, involving multiple defendants, the Comparative Negligence Statute precludes a more negligent claimant from recovering from a less negligent defendant even where the claimant's negligence is less than the combined negligence of all defendants. The appellant claims that its position is supported by the language of the statute and the "significant" legislative history which demonstrates the intent of the General Assembly.

I. Pennsylvania Comparative Negligence Act

The Pennsylvania Comparative Negligence Statute provides as follows:

(a) General rule. -- In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. (Emphasis supplied.)

(b) Recovery against joint defendant; contribution. -- Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

The appellant asserts that under the provisions of the Comparative Negligence Act, if a plaintiff's negligence is greater than that of a defendant from whom recovery is sought, the plaintiff may not recover from that defendant.

[ 511 Pa. Page 407]

The appellant faced with the language of the Act which provides that the negligence of the plaintiff is to be compared to "the causal negligence of the defendant or defendants against whom recovery is sought," attempts to explain away the General Assembly's inclusion of the plural "defendants." Appellant argues that, "the use of the plural 'defendants,' is simply recognition by the Pennsylvania Legislature that actions are often brought against multiple defendants" (Appellant's Brief, p. 8). We are not persuaded by appellant's argument.

The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

Statutory Construction Act of 1972, Dec. 6, No. 290 § 3, 1 Pa.C.S.A. § 1921. In ascertaining the intent of the Legislature certain presumptions must be given appropriate recognition, among them being, "that the General Assembly intends the entire statute to be effective and certain." Id. 1 Pa.C.S.A. § 1922. "We must assume that the Legislature intends every word of the statute to have effect." Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979). To say that the use of the plural "defendants" is simply legislative recognition that lawsuits are often brought against more than one defendant is to ignore that construction guide. If the Legislature's use of the plural "defendants" is to have any meaning, then the proper construction of the statute is that the plaintiff's negligence is to be compared to the combined negligence of all defendants. To hold otherwise would be to ascribe no meaning to the plural "defendants."

The appellant argues that if the Legislature intended the plaintiff's negligence be compared to the negligence of all defendants it would have adopted language similar to the language of the Connecticut statute (Conn.Gen.Stat.Ann., 52-572h) which specifically provides that plaintiff's negligence will not bar recovery if it was "not greater than the combined negligence of the person or persons against

[ 511 Pa. Page 408]

    whom recovery is sought." We disagree with appellant. There are many ways to express the idea that plaintiff's negligence is to be compared to the total negligence of all defendants. The language used in the Connecticut statute is one way. The language of the Pennsylvania statute is another. And as we shall see infra, statutes in other jurisdictions follow the same rule with language different from both the Connecticut statute and the Pennsylvania statute.*fn4

The appellant asserts that the interpretation of the plural "defendants" it urges this court to adopt is supported by section (b) of the statute. As we have noted above, section (b) provides:

Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. . . . (Emphasis supplied.)

42 Pa.C.S.A. § 7102. Appellant argues that the language of Section (b) "distinguishes Defendants, 'against whom recovery is allowed' and . . . 'against whom the plaintiff is not barred from recovery,' from those [defendants] against whom the plaintiff is precluded from recovering" (Appellant's Brief, p. 9). The appellant contends that Section (b) refers to a situation exactly as exists here, namely, where the plaintiff's negligence exceeds the negligence of a defendant. From this premise the appellant ...


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