Supreme Court Of Pennsylvania Establishes New Requirement For Preservation Of Certain Jury-Instruction Errors In Civil Cases

On August 21, a sharply divided Supreme Court of Pennsylvania held that a party to a civil case waives any challenge to a trial court's failure to give a proposed jury instruction if the party does not obtain an on-the-record ruling by the trial court regarding the proposed instruction.

The plaintiff in Jones v. Ott, No. 12 WAP 2017 (Pa. Aug. 21, 2018), submitted proposed jury instructions regarding negligence per se prior to the start of the trial, but the trial court never issued a ruling on the proposal. While the court may have addressed the issue during trial at the charge conference, the conference was not transcribed and thus, there was no record on the issue. The proposed instructions were not given to the jury and, following an adverse jury verdict, the plaintiff filed a post-trial motion contending that it was error not to give her proposed instructions.

The trial court found the issue waived because "the record is devoid of any discussion relative to the proposed charge," and the Superior Court affirmed for the same reason. The Supreme Court granted allowance of appeal and, in a 4-3 decision, held that a challenge to a trial court's failure to give a proposed jury instruction "is waived when the appellant fails to secure a record ruling from the trial court upon the proposed charge."

Rule 226(a) of the Pennsylvania Rules of Civil Procedure provides that a proposed instruction becomes part of the record when read into the record or filed with the court (as plaintiff's proposed instruction was in Jones), and Rule 227.1(b)(1) provides that an issue is preserved for...