The Pennsylvania Superior Court, in a matter of first impression, has held that the negligence of a client may be raised as an affirmative defense in a legal malpractice action that is based upon negligence. Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004).
The Gorskis were real estate developers who sued their lawyer in relation to services provided in a significant real estate transaction. It was alleged that the attorney was negligent in drafting a land sale agreement and in the litigation that subsequently arose when the Gorskis sought rescission of the agreement. The Gorskis also sued for breach of contract alleging that the attorney breach his contractual duty to adequately represent them. At trial, the jury found that the lawyer was negligent. The jury did not find that the lawyer had breached any contractual obligation and found that the Gorskis were contributorily negligent in relation to the creation of the land sale deal with the buyer. While contributory negligence will be a complete bar to a plaintiff’s recovery, the trial court entered judgment notwithstanding the verdict in favor of Plaintiff. Cross appeals were filed.
The Superior Court, after analyzing cases from other states, agreed with many other jurisdictions that in a legal malpractice action based on negligence, the negligence of a client, if proven at trial, may be considered by a jury in awarding damages. The Superior Court next considered whether a finding of contributory negligence would operate as a complete bar to recovery. Finding that the comparative negligence principles do not apply to cases other than those for bodily injury or injury to property, it held in accordance with prior precedent that contributory negligence of a client may be a complete bar to recovery. However, it also held that a client cannot be deemed contributorily negligent for failing to anticipate or guard against his or her attorney’s negligence in the performance of legal services within the scope of the attorney’s representation of the client. It also stated that a client can be contributorily negligent where the client has withheld or misrepresented information that is essential to the attorney’s representation of the client.
In this case, the Superior Court found that the Gorskis specifically relied on their lawyer to review the contract and to ensure that the contract legally accomplished what the Gorskis sought. Further, the lawyer gave the Gorskis legal advice on the legal meaning and operation of contractual language. Because the advice was erroneous, the Gorskis could not have been contributorily negligent for relying on it.