One of my pet peeves as a trial lawyer is the misconception that people still have, many years later, about the infamous McDonald’s Coffee case.  Based on what I believe was slanted coverage by the media in favor of Big Business and against trial lawyers, the case became the poster child for the “tort reform” movement to stop frivolous lawsuits.

People hearing that a woman was burned when she spilled coffee on herself but sued was enough for them to say, “that’s ridiculous” and that the lawsuit was “frivolous” without listening any further.

However, if you look at the true facts of the case, I think you might agree with me that the lawsuit was appropriate and that McDonald’s actually got lucky, very lucky, in the end.

The True Facts of the McDonald’s Coffee Case
In 1992, Stella Liebeck, a 79 year-old woman, purchased a 49¢ cup of coffee from the drive-thru at the Albuquerque, New Mexico, McDonald’s.  Stella was seated in the passenger seat and her grandson was driving.  They pulled over so that Stella could put cream and sugar in the coffee.

As Stella was fixing her coffee, it accidentally spilled into her lap.  Stella’s cotton sweatpants soaked up the coffee and, before she could remove them, Stella sustained severe burns to her thighs, buttocks and groin area.

Stella was rushed to the hospital and diagnosed with third degree burns over 6 percent of her body and lesser burns on 16 percent of her body.  She was hospitalized for eight days, underwent surgical procedures to debride the wounds and apply skin grafts and suffered excruciating pain.  Stella had two years of medical treatment at a cost of over $11,000.

The following are the true facts regarding Stella’s lawsuit against McDonald’s:

• Stella offered to settle with McDonald’s for $20,000, but McDonald’s only offered $800.
• Stella sued McDonald’s for gross negligence.
• At trial, the jury heard the following evidence:
  • McDonald’s enforced a franchise-wide policy of serving coffee at 185°F, plus or minus 5°.
  • Coffee at home is served at 135° to 140°F.
  • Coffee at 185°F is not fit for consumption because it will burn the mouth and throat.
  • Coffee at 185°F will cause third degree burns after two to three seconds of exposure on the skin.
  • Third degree burns do not heal without surgery and skin grafting, and they cause extreme pain and permanent scarring.
  • From 1982 to 1992, McDonald’s received more than 700 complaints of people being burned by its coffee resulting in many third degree burns and numerous claims and lawsuits.
  • McDonald’s had no intent to reduce the temperature of its coffee.
  • McDonald’s earned approximately $1.35 million per day from coffee sales.

The Result
The jury reached a verdict which held McDonald’s negligent and 80 percent responsible for the accident and Stella negligent and 20 percent responsible.  The jury awarded compensatory damages of $200,000 (which was reduced by 20 percent to $160,000 to account for Stella’s 20 percent negligence).

The jury also awarded punitive damages of $2.7 million, which was equal to two days of coffee sales.

The trial judge reduced the punitive damage award to $480,000 (three times the compensatory damage award) making the total reduced award $640,000 ($180,000 compensatory and $480,000 punitive).

During the appeal, Stella and McDonald’s settled the case for an undisclosed sum which is believed to be less than $680,000.

Commentary
To me, the McDonald’s Coffee case should not have been the poster child for frivolous lawsuits and tort reform.  On the contrary, I see it as a shining example of how our court system can force wrongdoers to be held accountable for their actions.

McDonald’s enforced a franchise-wide policy of serving undrinkable scalding coffee that would cause third degree burns in two to three seconds.  McDonald’s had received over 700 complaints of burns and yet did nothing about it and had no plans to do so.

Stella was held accountable for her 20 percent negligence in spilling the coffee and the jury attempted to compensate her, as well as punish McDonald’s for what the judge labeled as “callous” conduct.  In my opinion, McDonald’s got lucky through the judge’s reduction of the award and the fact that the case was settled.

Nevertheless, Stella’s claim may have accomplished some greater good.  News reports from the day after the verdict were that the Albuquerque McDonald’s had reduced the temperature of its coffee from 185°F to 158°F.  At 158°F, coffee is actually drinkable and it would take sixty seconds of exposure, rather than two to three seconds, to cause a serious burn.

Tim Rayne, a Personal Injury attorney with the full service Chester County, Pennsylvania, law firm of MacElree Harvey, has earned his LL.M. in Trial Advocacy from the Temple University Beasley School of Law.

The LL.M. is an advanced legal degree commonly known as a Master’s Degree. Temple Law School’s Trial Advocacy LL.M. is the only one of its kind in the country and is designed to sharpen the trial skills of practicing litigators.

Tim attended the program with thirty-five other lawyers. Approximately half were local lawyers and the others attended the program even though they practiced in far away states such as Florida, Nevada and Alabama.

The Master’s Program was a full-year commitment. It started with a two week “Boot Camp” and then continued with weekly lectures on Thursday nights and “performance weekends” once per month.

The program offered instruction and performances on all phases of trial practice including depositions, motions, expert witnesses, opening statements, direct and cross examinations and closing arguments. Tim had the opportunity to try five civil cases including a civil assault, motor vehicle accident, products liability, medical malpractice and employment discrimination case.

“I really enjoyed the program. We had excellent instruction from hot shots in the trial business and got tons of hands-on in the courtroom experience. I feel that my trial skills and confidence have improved immensely,” said Tim.

For thirteen years, Tim has been assisting people who have been injured in accidents. Tim has extensive experience negotiating with insurance companies and has tried both personal injury and death cases.

Tim handles diverse types of personal injury cases including vehicle accidents (car, truck, motorcycle and bicycle crashes); slip or trip and falls; medical malpractice; and products liability (injuries caused by defective products).

Tim was named one of the area’s Top Personal Injury Litigators in Main Line Today Magazine.

You can contact Tim Rayne at MacElree Harvey, Ltd. at
211 East State Street, Kennett Square, PA 19348;
610.840.0124; trayne@macelree.com.

Tim Rayne, a partner with the full service Chester County, Pennsylvania, law firm of MacElree Harvey, has published a book titled “A Lawyer’s Guide to Purchasing Car Insurance.”

For thirteen years, Tim has been helping people in Chester County who have been injured in accidents.  He has extensive experience negotiating with insurance companies and trying automobile accident injury and death cases.

“I have found that what happens to people after they have been injured in an automobile accident is greatly impacted by the choices which they made when they bought their car insurance,” Tim says.  “Those choices affect how your car gets fixed, how your medical bills get paid, how your lost wages get reimbursed, whether you can recover compensation for your pain and suffering and, if so, whether you can receive adequate compensation.”

Because these decisions are so important, Tim felt compelled to write this book which deals with the following issues: 

·         How to protect your assets when you cause an automobile accident

·         Choosing appropriate coverage for medical bills, lost wages and death benefits

·         Choosing Full or Limited Tort

·         Protecting yourself and your family from irresponsible drivers – Uninsured and Underinsured Benefits

Contact Tim to request a complimentary copy of the book (for Southeastern Pennsylvania residents) or to purchase a copy for $14.95.

Tim Rayne, Esquire, MacElree Harvey, Ltd.
211 East State Street, Kennett Square, PA  19348;
610.840.0124; trayne@macelree.com

In the American system of civil litigation, there are two categories of money damages that can be awarded by a judge or jury in a lawsuit – Compensatory Damages and Punitive Damages.  As was explained in a previous article, Compensatory Damages attempt to make up for the harm caused to the injured party by paying for lost wages, medical bills and other out-of-pocket expenses, and providing compensation to make up for the non-economic losses like pain and suffering, embarrassment and disfigurement, and the loss of the ability to engage in pre-accident activities.

Punitive Damages are money damages which are awarded only in cases of outrageously bad acts committed by defendants.  The purpose of the Punitive Damage award is to provide extra punishment to the defendant to deter him from committing such bad acts in the future.

When are Punitive Damages Awarded?
Punitive Damages are only appropriate in extreme cases of bad behavior.  In Pennsylvania, there must be proof of outrageous conduct because of a defendant’s evil motive or reckless indifference to the rights of others.  The Courts have concluded that Punitive Damages are proper when the defendant’s actions are outrageous in nature and are intentional or reckless.  For example, Punitive Damages have been deemed appropriate in situations such as motor vehicle accidents caused by drunk drivers (reckless conduct) or injuries caused by criminal assaults (intentional conduct).

How Much Punitive Damages Can Be Awarded?
The United States Supreme Court has limited a judge or jury’s ability to award whatever Punitive Damages they believe are appropriate.  Instead, the Supreme Court has held that Punitive Damages which are dramatically too high in proportion to the amount of Compensatory Damages cannot be permitted. 

In Pennsylvania, the law states that the following factors must be considered when determining the amount of Punitive Damages: (1) the character of the act; (2) the nature and extent of the harm: and (3) the wealth of the defendant.  The wealth of the defendant is considered in the assessment because if a wealthy person (or corporation) commits an outrageous act, it will take a larger punitive damage award to punish and deter that wealthy defendant compared to a poor defendant.  Accordingly, in cases involving the prospect of Punitive Damages, defendants can be required to disclose information concerning their wealth in the discovery process before the trial, and the judge or jury can hear evidence about their wealth during trial.

Punitive Damages can be an effective motivating force in our civil litigation system.  Since they serve the purpose of a financial penalty to punish and deter defendants who commit outrageous, intentional or reckless acts, they can “send a message” to those defendants that the legal system will not tolerate such bad behavior. 

Tim Rayne, Esquire - MacElree Harvey, Ltd. 
211 E. State Street, Kennett Square, PA 19348
(610) 840-0124; trayne@macelree.com

With all the talk in recent years of “tort reform” and “frivolous lawsuits,” I was encouraged, as a trial lawyer, to hear of how our legal system dealt with the frivolous lawsuit in which a man sued a dry cleaner for $67 million over a lost pair of pants.  The result of that case firmly convinces me that so-called “tort reform,” which often punishes injured victims with legitimate claims, is not necessary to eliminate meritless legal claims.  Instead, most jurisdictions, including Pennsylvania, already have rules in place to punish litigants and lawyers who file frivolous lawsuits.

The $67 Million Pants Lawsuit
The trouble started in 2002 when a cleaner in Washington, D.C., owned by the Chung family, was doing business with Roy Pearson, an Administrative Law Judge in Washington, D.C.  When the Chungs accidentally lost Pearson’s pants, a dispute arose.  Eventually, the Chungs paid Pearson $150 and banned him from their store.  Three years later, Pearson pleaded for permission to be a customer again, claiming he had no car and the Chungs were the only cleaner in his neighborhood.  The Chungs relented and removed the lifetime ban in what turned out to be a fateful decision.

On May 3, 2005, Pearson paid $10.50 to have a pair of pants altered.  On May 5, 2005, the pants were not ready and Mr. Chung promised Pearson that they would be ready the next day.  Then, the pants went missing for a week and Pearson claimed that the pants that were eventually found and presented to him were not his.

Relying on the Chungs’ signs promising “Satisfaction Guaranteed” and “Same Day Service,” Pearson sued the Chungs for $67 million under a Washington, D.C. consumer protection statute.  The suit claimed that the law provided for hefty daily fines per violation, which added up to millions of dollars in damages.  Pearson claimed additional damages for inconvenience, mental anguish and attorneys’ fees for representing himself. 

The Chungs tried to settle to avoid crippling defense costs by offering $3,000, then $4,000 and finally $12,000, but Pearson rejected all offers.

Ultimately, the Chungs were vindicated at trial.  Even after Pearson’s tearful testimony over his lost trousers, his claim was rejected.  The Chungs were awarded their court costs and a Motion filed by the Chungs to recover their legal fees is pending.  There is also talk of Pearson losing his job as a judge and possibly facing ethical charges or disbarment for pursuing his pants lawsuit.

Pennsylvania Protections from Frivolous Lawsuits
In Pennsylvania, as in most jurisdictions, there are court rules and laws already in place to prevent litigants and attorneys from pursuing frivolous claims.  These measures deter and punish such conduct.  Both the Pennsylvania State and Federal Civil Court Rules provide that legal papers cannot be filed for an improper purpose or to pursue frivolous claims.  The Rules provide for sanctions on litigants and attorneys who violate such rules.  In addition, Pennsylvania law provides that if a frivolous lawsuit is filed and later is terminated in favor of a defendant, that defendant can file a claim against the offending party, and often that party’s attorney, seeking damages.  Such damages can include the attorneys’ fees incurred in defending the frivolous lawsuit.

The Danger of “Tort Reform”
Whenever crazy cases like Judge Pearson’s pants lawsuit are publicized, the knee jerk reaction of the media is to blame all attorneys and advocate for “tort reform.”  However, the pants lawsuit is actually a shining example of how our legal system deals with frivolous lawsuits.  First, it is important to note that no lawyer represented Pearson.  Instead, Pearson tried the case himself.  Second, Pearson’s suit was unsuccessful and he faces possible court sanctions for bringing it.  So, the existing court system disposed of this frivolous case appropriately.

So-called “tort reform” usually results in blanket rules protecting all defendants and harming all victims of accidents.  For example, the most popular “tort reform” is damage caps which limit the amount of compensation a victim can receive, regardless of how injured the victim is, how wrongful the defendant’s conduct was, and how much money or insurance the defendant has.

In considering the merits of such “tort reform,” I ask you to take into account that, at least in Pennsylvania, we already have systems in place to deter and punish frivolous lawsuits.  In Pennsylvania, Judge Pearson would have left the courthouse without his pants and his wallet.

Tim Rayne, Esquire — MacElree Harvey, Ltd.
211 East State Street, Kennett Square, PA  19348
(610) 840-0124; trayne@macelree.com

Do I Even Need a Personal Injury Attorney?
Just because you have been involved in an accident, that doesn’t automatically mean that you need to hire a Personal Injury attorney to represent you.  The accident might not have been caused by anyone’s negligence (carelessness), so a legal claim may not exist.  The injuries might be so insignificant that they do not justify the hiring of an attorney.  In these cases, you may not have a valid claim or the claim may not be worth enough to justify retaining a Personal Injury attorney as opposed to dealing directly with the insurance company.

Should I Consult With An Attorney?
Regardless of whether you think you actually need a Personal Injury attorney, it is advisable to meet with one. Such initial consultations are free of charge and allow you to have an expert determine whether or not you have a case and need an attorney.

How Do I Find a Personal Injury Attorney?
Any attorney with money can buy a television commercial, take out a full-page Yellow Page advertisement or put up a billboard.  In my opinion, the best way to find a Personal Injury attorney is to get a referral from a family member, friend or business contact or colleague.  These people have likely had hands-on experience with the attorney and will be able to tell you whether or not the attorney does a good job in these cases.  Once you get the name of an attorney, you, yourself, can perform your own investigation into that attorney’s experience and qualifications in handling Personal Injury cases.

What Questions Should I Ask Prospective Attorneys to See if They Are Qualified Personal Injury Attorneys?
In these days of “tort reform” and increasing jury hostility to Personal Injury claims, it is critical to find a qualified Personal Injury attorney to handle your case.  In my opinion, you should have an attorney who specializes in Personal Injury cases and has knowledge, training, experience and resources necessary to take your case all the way to trial, if necessary.  Here are some good questions to ask prospective attorneys:

• Where did you go to law school?
• Did you have any special training or receive any awards relating to trial practice during law school?
• Do you take continuing education courses related to Personal Injury cases?
• How long have you been practicing Personal Injury law?
• What percentage of your business is devoted to Personal Injury cases?
• Have you handled both sides of Personal Injury cases; that is, the side of the victims (plaintiffs) and responsible parties (defense)?
• Have you actually taken Personal Injury cases to trial lately?
• Do you have sufficient backup and resources to try a Personal Injury case?
• What is your fee structure?
• Who pays the litigation expenses and what happens regarding those expenses if the case does not result in recovery? 

I will answer some of those questions myself.  I have been practicing law since 1995 when I graduated from Widener University School of Law in Wilmington, Delaware.  In law school I took an Intensive Trial Advocacy Program and an Advanced Trial Advocacy Program.  Upon graduation I received an award for Trial Advocacy, the Philadelphia Trial Lawyers Association James J. Manderino Award for Trial Advocacy. 

I focus my required continuing legal education on courses related to Personal Injury litigation.  I have also completed a Master’s in Trial Advocacy Program at the Temple University Beasley School of Law.  The Master’s Program is the only one of its kind in the country and is focused on enhancing the trial skills of practicing litigators. 

My practice is focused on Personal Injury law, and I currently represent only victims of accidents, no defendants.  Early in my career, I represented both injured victims and a trucking company.  Doing the defense of Personal Injury cases for that trucking company gave me insight into how insurance companies and defense lawyers think. 

Although the vast majority of all Personal Injury cases settle before trial, both I and the other attorneys in my firm regularly take Personal Injury cases to trial.  My firm has many attorneys, paralegals and office assistants who are prepared to assist me in the trial of Personal Injury cases.

In terms of our fee structure, we handle our Personal Injury cases on a Contingent Fee basis in which we charge no fees unless we achieve a recovery for our clients.  We pay all out-of-pocket expenses associated with your case and are reimbursed out of any recovery.  If we do not achieve a recovery for you, we do not require you to pay any fees or expenses.

Tim Rayne, Esquire — MacElree Harvey, Ltd.
211 East State Street, Kennett Square, PA  19348
(610) 840-0124; trayne@macelree.com

Being involved in a car accident is frightening, and legal issues are certainly not on your mind during the first few moments after the crash.  Nevertheless, the actions you take, starting right after the accident, can have a substantial impact on what will happen to you in the legal system.

For this reason, please review these Ten Steps and, to be extra safe, call or e-mail me to get extra copies to put in your glove compartment, along with your proof of car insurance and registration.

1- Call the Police

Having a Police Investigation and Police Report will help establish who was at fault for the accident.  Insurance companies rely heavily on the Police Report when reaching their determinations of fault.  If the Police do not investigate, determining who was at fault can become a battle between the two drivers.

2.  Preserve Evidence

Do not move your car unless it is creating a dangerous conditon or the Police order you to move it.  The final resting point of your car is important to know in order to reconstruct the accident to detemine fault.  If possible, take photographs of the scene of the accident and the vehicles.  Later, take photographs of any visible signs of injury such as cuts, bruises, abrasions, bumps etc.

3.  Identify Witnesses

Get names, addresses and telephone numbers of any witnesses to the accident.  Often, witnesses will try to leave the accident scene before the Police arrive.  Encourage them to stay in order to give a statement to the Police and, at the very least, get their names and phone numbers.

4.  Get the Other Driver’s Vital Information

Be sure to get the other driver’s name, address, phone number, license plate number, car registration number and automobile insurance company name and policy number.

5.  Seek Immediate Medical Attention

If you have any symptoms of an inury or if the accient was anything other than a minimal impact collision, you should get checked out at a Hospital Emergency Room.  If symptoms arise later, seek immediate medical treatment at the ER or with your Family Doctor.

6.  Immediately Report the Accident to Your Car Insurance Company

Your car insurance policy requires you to report accidents promptly.  Be sure to call as soon as you can.  You should be able to find a 24 hour 800 number on your Proof of Insurance Card or on the Internet.

7.  Be Careful Who You Talk To

You should not talk to anyone about how the accident occurred other than the Police, Your Insurance Company and your Personal Injury Attorney.  Any statements you make can be used against you.  Avoid talking to your insurance company while you are medicated or in great pain.  Never talk to the other driver’s Insurance Company or give a recorded statement to anyone without your Personal Injury Attorney being present.  Your words can be twisted or misinterpreted. 

8.  Locate an Experienced Personal Injury Attorney

In these days of “tort reform,” the laws regarding Personal Injury cases and car insurance are constantly changing.  Because of these changes, you need an attorney who focuses on Personal Injury cases to get proper representation.  You are best served by an attorney who regularly fights for clients against insurance companies and who is prepared to negotiate a resolution to your case or, if appropriate, take your case to trial.

9.  Consult with an Experienced Personal Injury Attorney Right Away

Depending on the accident and your injuries, you may not need to retain an attorney to represent you.  Nevertheless, you should always consult with an experienced Personal Injury attorney as soon as possible.  The accident might require investigation before the scene changes.  An expert accident reconstructionist my be needed.  Witnesses may need to be located and interviewed by a private investigator.  The vehicles or other evidence may need to be preserved.  You should have an attorney advise you on how to deal with both your insurance company and the insurance company for the other driver.

I offer free consultations regarding Personal Injury cases and will meet prospective clients at my offices in Kennett Square or West Chester, PA or in Centreville, DE,  at your home or any other convenient location.

10.  Don’t Sign Anything

Don’t Sign Anything without first getting the advice of an experienced Personal Injury attorney.  A private invesigator may ask you to sign a statement.  The insurance adjuster may offer a small settlement in exhchange for you signing a Release giving up all of you legal claims.  You shouldn’t sign anything without reviewing it with your attorney.

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348    (610) 840-0124    trayne@macelree.com

Sadly, no one has invented a time machine that can turn back the clock and erase the consequences resulting from bad decisions or irresponsible behavior.  That being the case, when bad things happen due to the careless, reckless or intentional acts of others, injured people can turn to the civil legal system for compensation to make up for the losses caused by the accident. 

In a Personal Injury lawsuit there are two major categories of Compensatory Damages - Economic and Non-Economic Damages.  These Damages, if established at trial, are to be awarded to an injured party to make up for the harm caused by the defendant.

Economic Damages

Economic Damages are losses that can be specifically quantified in monetary terms.  That is, you can easily measure them in dollars.  Economic Damages include past and future lost wages, fringe benefits, medical bills, funeral and burial expenses, and incidental expenses (like costs for help around the house or modifying a home or care to make it handicap accessible).  Personal Injury trial experts, including doctors, vocational specialists and economists, will often testify concerning the amount of Economic Damages that an injured personal has and will suffer.

Non-Economic Damages

Non-Economic Damages are damages that cannot be quantified by presenting evidence of specific dollars needed to compensate for losses.  Instead, Non-Economic Damages are less tangible losses incurred by the injured party.  Under Pennsylvania law, the following are compensable Non-Economic Damages:

Pain and Suffering.  Compensation for all past and future physical pain, mental anguish, discomfort, inconvenience and distress;

Embarrassment and Humiliation.  Compensation for past and future distress caused by physical or mental disabilities caused by injuries;

Disfigurement.  Compensation for having to live with scarring or other visible injuries; and

Loss of Enjoyment of Life.  Compensation for the loss of the ability to engage in and enjoy pre-accident activities.

The purpose of a damage award in a Personal Injury case is not to make an injured party rich.  A lawsuit is not the lottery.  Rather, the purpose of the damage award is to fairly and adequately compensate the injured party for all losses caused by the accident, present and future, Economic and Non-Economic.  Pennsylvania law requires the monetary award to make up for what the injured party has lost — no more and no less.

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

Slips and falls on ice or snow can result in Negligence claims by the injured party against the owner or person in control of the property where the injury occurred.  However, Pennsylvania law provides a defense for property owners called the “Hills and Ridges” Rule, which protects them from liability for injuries caused by recent snow or ice storms resulting in generally slippery conditions.

The Hills and Ridges Rule

The Hills and Ridges Rule provides that the owner or person in control of a property is not liable for slips and falls caused by generally slippery conditions resulting from recent snow or ice storms.  The justification for the rule is that to require someone’s parking lots, sidewalks and roadways to always be free of ice and snow would impose an impossible burden due to Winter weather conditions.  Stated another way, a property owner cannot be expected to be constantly shoveling snow and salting ice.  Instead, the Rule indicates that the duty of a property owner is to act with in a reasonable time after a snowfall or ice storm to remove the snow and ice which is creating a dangerous condition.  The Hills and Ridges Rule protects the property owner from generally slippery conditions from recent Winter storms UNLESS the injured party can prove that the property owner allowed the precipitation to accumulate in “hills and ridges” which caused someone to fall.  The idea is that if “hills and ridges” accumulated, the snow or ice must have been there long enough for the property owner to have taken reasonable steps to remove or treat the dangerous condition.

Exceptions to the Rule

The Hills and Ridges Rule only provides limited protection to property owners.  First, it only applies to natural accumulations of snow or ice.  Ice patches or snow piles caused artificially -  like from snow plowing, a defective gutter or downspout or  a leaky faucet - are not covered by the Rule.  So, if a slip and fall is caused by such a condition, the property owner cannot claim Hills and Ridges protection. 

In addition, the Hills and Ridges Rule only covers generally slippery conditions.  If there is an isolated patch of snow or ice, the Rule does not apply.  For example, isolated patches of ice caused by melting snow piles would not be considered generally slippery conditions providing protection from liability under the Rule.

When the Hills and Ridges Rule does not apply, the injured party must prove two things in order to have a Negligence case against the property owner:  (1)  that the property owner knew about the dangerous condition or that it existed for long enough that he should have known about it; and (2) that the property owner failed to take reasonable steps to make the property safe - like plowing, shoveling,  salting, sanding or posting warning signs. 

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

The primary defense in a Personal Injury negligence case, like a car accident or slip and fall case, is that the injured person contributed to causing the accident.  In Pennsylvania, this is called Comparative Negligence.  The defense, if proven in court, can reduce the compensation owed to a victim of an accident, or completely eliminate the victim’s ability to recover compensation. 

History of the Comparative Negligence Defense

Before 1976, Negligence law in Pennsylvania recognized the defense of Contributory Negligence.  Under a Contributory Negligence defense, if a defendant could prove that the injured party was negligent in any way and that negligence contributed to causing the accident, the injured party would not be able to recover any compensation.  Instead, the injury party’s Contributory Negligence completely barred any recovery.

Many states, including Pennsylvania, felt that Contributory Negligence was too harsh a rule becuase even if the defendant was much more responsible for the accident compared to the injured party, the injured party still could not recover any compensation.  In the most extreme case, even if the jury found that the defendant was 99 percent responsible for the accident and the injured party was 1 percent responsible, Contributory Negligence would preclude the injured party from any compensation.

The Comparative Negligence Rule 

In 1976, the Pennsylvania legislature adopted a Comparative Negligence statute which governs Negligence cases involving death, personal injuries or property damages.  The Comparative Negligence statute applies to all Personal Injury cases alleging Negligence, including car, truck and motorcycle accident cases, slip and fall cases and other injury cases.

Not surprisingly, the Comparative Negligence statute “compares” the negligence of the injured party and the defendant and allows recovery in some situations, while reducing the injured party’s compensation to account for his role in causing the accident.

Pennsylvania’s Comparative Negligence statute states that the fact that an injured party may have been neglient shall not bar recovery where the negligence was not greater than the negligence of the defendant, but any damages sustained shall be diminished in proportion to the amount of negligence attributable to the injured party.

There are two parts to the Comparative Negligence defense.  First, there is a greater than 50 percent rule.  If the injured party was greater than 50 percent responsible for the accident, he cannot recover any compensation.  If he is equal to or less than 50 percent responsible, he can recover.  Second, the injured party’s compensation must be reduced by the percentage of his responsibility for the accident.

At the end of a Personal Injury trial, the judge will instruct the jury that they must decide whether the defendant was negligent and, if so, whether the negligence caused damages to the injured party.  The jury must also decide whether the injured party was negligent and contributed to causing the accident.

If the jury determines that both the defendant and the injured party were negligent and contributed to causing the accident, then the judge will instuct them to assign percentages of responsibility to each so that they add up to 100 percent, like 50 percent defendant/50 percent injured party, 80/20, 75/25, 40/60 etc.  Then, the jury is instructed to award money for the injured party’s damages and losses.

After the verdict is reached, the injured party cannot recover any compensation if the jury found him more than 50 percent responsible for the accident.  If the jury found the injured party 50 percent responsible or less, then the injured party can recover, but the judge reduces the compensation award in proportion to the injured party’s percentage of Comparative Negligence.  For example, if the jury found the injured party 50 percent responsible and awarded $100,000, then the award would be reduced by 50 percent to $50,000.

Comparative Negligence is the most common defense in Personal Injury cases.  Pennsylvania’s rule of Comparative Negligence allows an injured party to recover compensation if he is not more than 50 percent responsible for an accident, but reduces his recovery by his percentage of fault.  The rule attempts to be fair to both injured parties and defendants by holding each of them responsible for their role in causing an accident. 

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com