Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/04/Wilmer-v.-Bethman.pdf">Wilmer v. Bethman</a>,</em> the Superior Court upheld a defense verdict in a case arising from a familiar scenario – a driver attempting to make a left turn is involved in a accident when a second driver coming from the opposite direction pauses and “waives” the first driver through, resulting in a collision with an unseen vehicle passing to the right of the second driver.

Plaintiff was driving eastbound on Street Road, which has two lanes of traffic in each direction.  Bethman pulled into a separate left turning lane in preparation for entering a housing development across the road.  She stopped in the turning lane and waited for westbound traffic to stop.  The driver of the car in the westbound turning lane, a police officer, stopped, left a gap, and made a gesture indicating that Bethman should proceed.  Bethman waited one second to make sure that the car had stopped.  The officer’s car blocked Bethman’s view of the second westbound lane until she began her turn.  Bethman successfully turned into the first westbound lane.  As she was entering the housing development after crossing over the second westbound lane, a van in which Kristine Wilmer was traveling struck the rear passenger side of Bethman’s car.  Wilmer was in the front passenger seat of the van when the collision occurred.  She suffered facial injuries when the airbag deployed.

Wilmer sued Bethman for her injuries resulting from the collision, and the case proceeded to a jury trial.  At the conclusion of her case, Bethman moved for judgment as a matter of law, asserting that Wilmer had violated Section 3322 of the Pennsylvania Motor Vehicle Code governing left turns, and was therefore negligent <em>per se</em>.  The trial court denied Wilmer’s motion.  At the close of Bethman’s case, Wilmer moved for a directed verdict on the same grounds.  The court denied the motion.  Wilmer then requested a jury instruction on negligence based on the alleged violation of the left turn statute, and requested that the jury not be charged separately on negligence.  The court denied Wilmer’s requests, but in its closing instruction, the court instructed the jury on both negligence and negligence <em>per se</em>.

The jury found Bethman was not negligent, and Wilmer moved for judgment notwithstanding the verdict.  The court denied that motion and Wilmer’s post trial motion, and she appealed to Superior Court.  On appeal, the Superior Court focused primarily on the issue of negligence <em>per se</em>.  To prove negligence <em>per se</em>, a plaintiff must demonstrate: (1) the existence of a statute designed at least in part to protect the interests of a group of individuals, as opposed to the public generally; (2) the clear application of the statute to the defendant’s conduct; (3) the defendant’s violation of the statute; and (4) that the violation was the proximate cause of plaintiff’s injuries.

The Superior Court found no abuse of discretion in trial court’s conclusion that the evidence was sufficient to permit the jury to conclude that Bethman acted reasonably and waited until she thought it was safe to proceed and was therefore not negligent.  Wilmer presented no evidence about the distance between the van in which she was riding and Bethman’s car when it turned left.  Thus, there was no evidence that Bethman violated the left turn statute by failing to yield the right-of-way to a vehicle that was so close as to constitute a hazard, and no evidence that a statutory violation caused the accident.  Wilmer did not see the collision.  She did not present any evidence that the van in which she was riding had a green light, was following the speed limit, or remained it its lane, leaving open the possibility that the van’s driver was contributorily or comparatively negligent and partially responsible for the collision.  Although Wilmer claimed that Bethman failed to look as she entered the intersection, Bethman testified without contradiction that she did look for oncoming traffic.  Wilmer did not prove that Bethman failed to signal her turn.  Interestingly, Wilmer failed to introduce into evidence the ticket that Bethman paid, and failed to cite authority for the proposition that issuance of the ticket alone establish negligence <em>per se.  </em>The opinion does not indicate the grounds for the ticket that Bethman received.

This case stands for the proposition than a plaintiff must establish all elements to prove negligence <em>per se</em>, and not merely assume the a collision with a vehicle making a left turn will invariably result in liability on the part of the turning driver.  Though the opinion did not address the ramifications of the failure to introduce evidence of payment of the traffic ticket, it seems likely that payment of any ticket would effectively be a guilty plea which would have established violation of the statute, thereby justifying a finding of negligence <em>per se</em>.

Thanks to James Scott for his assistance with this article.  Should you have any questions, please feel free to contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.