Under Pennsylvania law, the necessary elements to sustain a cause of action in negligence are: (1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury and (4) actual loss or damage resulting to the interests of another. Morena v. South Hills Health Sys., 462 A.2d 680, 684 (Pa. 1983).

A. DUTY

The "duty" analysis evolves around whether the defendants owed a duty to the plaintiff, and if so, what standard of care did the defendants owe to Heath, under the circumstances. A duty will often exist as a result of a "special relationship" between the plaintiff and defendant (i.e. common carrier/passenger or parent/child); a statute (a duty imposed by statute for protection of a specific class of persons), or industry custom (i.e. trade customs).

Heath would likely argue Bob and his father had a general duty to act reasonably which would have included a duty to operate the Ford Bronco safely. This duty would include a duty to inspect the tires of the Bronco before placing the car on the highway. She would likely argue that Bob and/or his father, knew or should have known, in the exercise of ordinary care, that the tires were defective, and the driving of the car would create an unreasonable risk of harm. She would contend that because the facts indicate neither defendant had inspected the tires recently, each failed to exercise reasonable care.

Under the law, there is a general duty to exercise reasonable care. This requires that Bob, his father, and Terry's conduct not create an unreasonable risk to Heath. "Reasonable" will depend on several factors: the burden of avoiding the occurrence of harm with the probability that harm will occur and the gravity of that type of harm if it does occur. Finally, in assessing whether a "duty" exist, Pennsylvania courts will consider whether the plaintiffs injuries were foreseeable (i.e. is the plaintiff a "foreseeable" plaintiff).

Assuming that Pennsylvania might have a statutory requirement that vehicles be in good condition when operated on state highways, Heath could use this statute as a basis for a duty. However, once again, because of the age of the car (17 months old) and because the tires are still under warranty, Heath would probably not succeed in demonstrating a "breach" of this duty. If a statute exists, Heath would argue this also imposed a duty upon Terry to inspect and keep his brakes in good operating condition.

Finally, because the facts indicate that parking in the left-hand lane of traffic along 1-76 East is illegal, Heath would argue Pennsylvania statutes impose a duty upon Bob not to park in the left-hand lane of 1-76.

B. BREACH

Breach of a duty of care can usually be established in three ways: (1) direct evidence to suggest the defendant has not complied with the applicable standard of care; (2) res ipsa loquitur (circumstantial evidence) and (3) violation of a statute.

Heath would probably fail in demonstrating a breach by either Bob or his father for failing to inspect the Ford Bronco prior to placing it on the Pennsylvania highways as imposed under either a general duty of care to act reasonably, or any Pennsylvania statute requiring all motorist to keep their vehicles in good condition. The facts in our problem suggest no evidence that the tires on the Berring vehicle were in such condition that a blow out could have been anticipated. The facts indicate the Bronco was approximately 17 months old and had a total of 8,500 miles on the odometer. Because the car would still be under warranty, 8,500 miles is less than half of the mileage to be expected for the tires. Finally, the facts do not indicate whether Bob or his father had driven the car excessively during the 17 month period, which if present, could have contributed to the tire blowout.

However, because Bob parked "illegally" in the left-hand lane of 1-76 immediately after the tire blowout, he violated a specific Pennsylvania statute/regulation and was therefore "negligent per se." Because the Ford Bronco was not completely disabled, Bob owed a duty to Heath not to park in the left-hand lane of the interstate, assuming Heath was a member of a class expected to enter the zone of danger created by Bob's negligent conduct.

Finally, the facts suggest the presence of direct evidence to indicate Terry breached a duty of care owed to Heath. Our facts indicate Terry had heard his brakes "squeal" for several months prior to this incident and had experienced a brief episode of brake failure during October. Also, the facts indicate Terry had planned to have his breaks checked at the end of the month (November). In light of the facts, Terry was aware of the condition of his brakes and failed to exercise reasonable care under the circumstances.

C. CAUSATION:

Pennsylvania law requires that the defendants conduct be the actual cause of plaintiff's injuries and the "proximate" or "legal" cause of her injuries. In determining "actual cause (establishing that the defendant's conduct has been one of the causes of plaintiffs injuries"), the courts will use the "but for" test (i.e. whether the same harm would have occurred without the defendant's negligent conduct or did the defendant's conduct cause the plaintiffs injury).

Finally, even if the plaintiff can demonstrate "actual cause" she will also have to show defendant's conduct was the "proximate" or "legal" cause of her injuries (i.e. that the defendant's conduct is a substantial factor in bringing about the harm and there is no rule of law relieving the actor from liability because of the manner in which his/her negligence has resulted in the harm). Proximate cause is designed to place limits upon liability as are deemed socially or economically desirable from time to time.

The Pennsylvania courts will consider the following factors in determining proximate cause: (1) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (2) whether the defendant's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm (i.e. no intervening/superseding causes), or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (3) lapse of time. Vattimo v. Lower Bucks Hosp., Inc., 465 A.2d 1231, 1233-34 (Pa. 1983). In other words, was the defendant's conduct so significant and important a cause that the defendant should be legally responsible. ld. (citing Presser, Law of Torts § 42 (4th ed.).

In Heath's suit against Bob's father, as discussed earlier, it would be hard to demonstrate a breach of duty owed to her because of the father's lack of knowledge of any defects with the tires, and lack of foreseeability of the blow out, in light of the age of the car and the warranty for the tires. Without this knowledge, his conduct in allowing his son to drive the car on Interstate 76 would not be the proximate cause of Heath's injuries. Any negligence of Bob's father would be far removed in time and superseded by Bob's parking in the left-hand lane of 1-76 and Terry's brake failure.

However, Bob's actions in parking the car in the left-hand lane of 1-76, using the "but for" test, would indicate his conduct was a significant cause of Heath's injuries. But for Bob's parking in the left-hand lane of 1-76, Heath would not have stopped to assist him and would not have gotten out of her police car to direct traffic. Bob's negligence seems to be "concurring"; it is not removed from Heath's ultimate injuries as a result of a lapse of time, and actually created a series of forces which were in continuous and active operation up to the time of Heath's injuries.

As a defense, Bob could argue "contributory negligence" on Heath's part. His argument would be his negligence in parking in the left-hand lane of 1-76 ended when Officer Heath took charge of the situation and directed him to proceed across 1-76. He would argue her conduct was a "superseding" intervening factor which should relieve him from any liability for negligence. However, the facts of our problem do not suggest any evidence that any action was taken at the direction of Officer Heath which contributed or caused the accident. Terry's conduct in pulling out of his lane of traffic was not the result of any directions given to him by Heath. Therefore, Heath's conduct would not constitute an independent intervening cause of the accident and would not constitute contributory negligence.

Finally, Terry's actions in swerving out of the left-hand lane and striking Heath when his brakes failed would satisfy both the actual and proximate cause aspects of causation. As a result of his brake failure, his car actually struck Heath, therefore supporting both actual cause, and his defective brakes were the proximate cause of her injuries (i.e. a substantial factor in her injuries- "but for" the brake failure, he probably would have been able to stop the car in sufficient time to prevent a contact with Heath).

D. DAMAGES