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Civil juries hearing tort cases should be asked to weigh whether the defendant’s negligence was a “factual cause” of the plaintiff’s injury, not whether it was a “substantial factor,” a Philadelphia judge has written in an opinion supporting recent changes in the state’s standard jury instructions. Common Pleas Court Judge Mark I. Bernstein argued that the “substantial factor” language had the potential to foment juror confusion. Both the American Law Institute and the state Supreme Court’s subcommittee on proposed civil jury instructions have, since early 2003, publicly voiced support for adoption of the “factual cause” language in jury charges. “Jury confusion from the word ‘substantial’ has been documented in appellate decisions,” Bernstein wrote in Stanley v. City of Philadelphia. He added later, “Pennsylvania is not alone in moving toward a more realistic factual cause formulation. In May 2003, the American Law Institute proposed replacing ‘substantial factor’ with factual cause. Final approval is scheduled for the spring 2005 meeting. For the reasons stated above, the instruction given by [this] court on ‘factual cause’ is an accurate statement of Pennsylvania law.” The opinion in Stanley apparently marks the first time that the substantial factor/factual cause issue has been addressed in a trial court opinion, according to experts in state civil procedure. Lee Swartz, acting chairman of the Civil Instructions Subcommittee of the Pennsylvania Supreme Court’s Committee for Proposed Jury Instructions, said the ALI has already approved Chapter 5 of its upcoming third restatement of tort law, which advocates the use of “factual cause.” Bernstein is also a member of the subcommittee, according to Swartz, a partner in Tucker Arensberg’s Harrisburg, Pa., office. In a book of suggested jury charges mailed out to Pennsylvania judges in the spring of 2003, Swartz said, the Civil Instructions Subcommittee also recommended that “substantial factor” make way for “factual cause.” Juror confusion was a top concern in advising trial judges to make the switch, according to Swartz. “What you had is, for example, people who were rear-ended [in a car accident], with some injuries, ending up with a verdict in their favor for liability, but nothing in damages,” Swartz said. Stanley stems from injuries Joseph Stanley, then 74, received in September 2001 when struck by a car driven by Edward Reed, a city sanitation employee, according to Bernstein’s opinion. Stanley claimed his injuries had been caused by the negligent maintenance of a stoplight at the crosswalk at which he was struck. In December 2003, according to the opinion, a jury awarded Stanley $987,000, with 10 percent negligence apportioned to Stanley himself, 40 percent to Reed and 50 percent to the city. A defense motion to mold damages was granted, and the final verdict stood at $493,000. On appeal, the city argued that Bernstein’s instruction as to factual cause had been made in error. The instruction Bernstein gave to the Stanley jury, according to his opinion, included the following statements: “The plaintiff must prove to you that defendant’s conduct cased the plaintiff harm. That’s factual cause. Conduct is a factual cause of harm, when the harm would not have occurred absent the conduct… . A defendant’s negligent conduct need not be the only factual cause of a plaintiff’s harm. The existence of the other causes does not relieve the defendant from liability, as long as the defendant’s cause was a factual cause of the injury.” “This instruction,” Bernstein wrote, “which is virtually verbatim from the Pennsylvania Suggested Standard Civil Jury Instructions 3.25, is an accurate statement of Pennsylvania law.” Though it was the city that raised the issue on appeal, it was plaintiff’s counsel who originally objected to use of the factual cause language, according to the opinion. Defense counsel had countered that the factual cause charge would be understood by the jury. Bernstein concluded that the city had not preserved the issue for appeal. In further support of his instruction, Bernstein quoted at length from the subcommittee’s notes to suggested civil jury instruction 3.25. The substantial factor test, Bernstein wrote, quoting the notes to 3.25, originated in the ALI’s second restatement of torts in 1965, and was adopted in Pennsylvania with the state Supreme Court’s 1977 decision in Ford v. Jeffries. But by 1998, according to the notes to 3.25, a Superior Court opinion in a case captioned Jeter v. Owens-Corning Fiberglas Corp. questioned the ability of the word “substantial” to aid the jury in determining whether or not a defendant’s conduct is a legal cause of an injury. Jeter involved a case in which a trial judge, responding to a question from the jury, read a dictionary definition of “substantial” as being “considerable in quantity, significantly large.” Quoting the notes to 3.25, Bernstein wrote, “the subcommittee recommends that the emphasis be on cause and that the definition of factual cause be so stated as to emphasize that it need not be so considerable or large as to be confused with the plaintiff’s burden of proof, which is considerably higher.” Bernstein also rejected the city’s claim that Stanley had failed to show permanent loss of bodily function, as required by the Political Subdivision Tort Claims Act. A plaintiffs expert had testified that Stanley would never be able to care for himself, according to the opinion. One of the city’s positions in appealing to the Commonwealth Court is that “the appropriate jury instruction on substantial factor causation was not given,” First Deputy City Solicitor Donna Mouzayck said in a statement. Stanley’s attorney, Michael Landis of Smolow & Landis in Trevose, Pa., said he wound up objecting to the factual-cause language only because he wanted to ensure that the jury understood that the defendants’ conduct may not have been the sole causes of his client’s injuries. “I think that as long as the judge is clear, it probably doesn’t make a huge difference” whether a judge’s instruction includes the term “substantial factor” or “factual cause,” Landis said. Philadelphia Common Pleas Judge William J. Manfredi, who supervises the civil trial division, said the judges he oversees are allowed to draft their own instructions and are not required to utilize specific standards. Swartz said that after his subcommittee mailed out its suggestion that “factual cause” be included in jury instructions, the majority of the state’s common pleas courts responded to voice their approval of the switch.

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