appearing on behalf of the pollen anthony rivera the primary issue before this court is who bears the burden to prove the in flight exception to governmental liability under pennsylvania's tort claim statute settled legal principles instruct that the party who relies on the statutory exception has the burden to prove that exception applies as the pennsylvania supreme court put it in bigelow it is incumbent on the one who relies on the exception to set it up and establish it this court put it in the bank a major party seeking shelter in an exception has the burden to prove it and of course the supreme court has said the same thing it was against this decades old backdrop and not some anticipation of the five years later that the pennsylvania legislature created a discrete exception from general vehicular negligence liability and that's a textbook indication of an affirmative defense the language used of course is provided that the local agency shall not be liable to any plane tip that claims liability under the subsection if the plaintiff was during the course of the alleged negligence in flight or flaying apprehension or resisting arrest by a police officer given that language mr hobson should have had the burden to prove that this exception applied and it was error for the district court to require mr rivera to prove that it did not that error was clearly not harmless this court can reverse under this court to reverse the denial of partial summary judgment on negligence per se negligence per se just speaks to duty and breach it is not speak to the other alley now the nearly two lane or go to the end of shirt and if you look at the verdict in the case you'll see that that was a question that the jury never reached in this case and it could certainly reach that issue on remand i want to go to you i want to go to your assertion that the error was not harmless unless the unless i'm not sure about because unless the jury thought that the evidence on inflight was exactly five thousand and fifty then why would the a different structure and as to the burden of proof have changed the outcome i tend to agree with you on the on the burden of proof but i'm not sure that it was a harmless part of that argument proves far too much because we we must assume that we have these burdens of proof for some reason and if they don't make a difference it's i'm unclear what role they play and i think if you look to the courts slant the supreme court's language in meacham where it says the proponents of the evidence stand it really comes into play where the evidence is close there's some doubt and so in those cases the jury will say well when there is doubt i will resolve this in favor of the party who had the burden of proof and of course we presume that the jury is going to follow the instructions as to given by by the district court which which he did here and again i think waldorf the language in waldorf alone resolves out and says of course there's no way to know for sure we can't we can't know for sure about but here but here where  you know it's not one of those cases where there is a number of findings and through some arithmetic we we can kind of figure out if the burden was different the jury would reach the same result here the jury made a single factual finding and the district court mis applied miss instructed the jury on the burden of proof on the that very factual finding which resolved the entire case so i think would be quite extraordinary in these circumstances to say that such error was harmless and i think you know even under the more general standard for harmless error for instructional errors we get the same answer if you look to the record in this case it's far from you know my friends argument that it goes one way  mr rivera testified to the jury that it was dark he didn't hear anybody yelling that they were police he just heard some stranger say hey you know and start charging have that that person didn't identify himself as police and of course when he saw someone running on foot he he was not expecting but time foot patrol in the area and both officers testified to the same thing mr mr waller himself just looking at his testimony testified that he identified himself as police you know on two thirty in the morning once from sixty yards away that is uniform was not labeled police but was in fact designed in part to be in conspicuous at night and that you know mr weller didn't think that bear ever realized they were police and testified that you know mr rivera kept asking for the police and i think that's why the district court determined rightly in this case that in denying mr hobson's role fifty motion on the very issue w but the question let me pause you here on this point from the question that the jury was with this posed to the jury was at the time of the accident would a reasonable person have known he was being asked to stop or otherwise d realize he was being pursued by police that was question ok and they hansard the question yes all right we all agree with that so why isn't the key issue here the substantive legal standard as to whether or not it was that rivera your client and reasonable cause the police were in pursuit that's that's the question claim that he never read it yet but help me understand that because again the jury is concluding that he knew that he was being pursued by police this and that the officer had the burden of proving the implied exception if the jury concludes that knew he was being pursued by police doesn't that automatically give the answer in terms of the application of the in flight exception how as provided by the district court and so to the extent the issue is closer if there is doubt the jury will resolve that issue in favor of the part about burden of proof but i do think if you look at the district court's instructions as well the district court doesn't just ask the simple question you know mr rivera no it wasn't a sudden you know a subjective factual finding it was the government's burden to show that it took some action to put a reasonable person  notice that the police were pursuing that person or otherwise being asked to stop so there was testimony you know both ways on this issue you know with mr rivera clearly testifying that he was not so to the factual cause of mr rivera's injuries and was mr bear contributory negligent by by by how much mr mr hobson has not identified and speed a fact with respect to the negligence per se  issue here and for the same reason the court should the court should reach that  me st start with the burden of proof and as i think both so conceded there is not a clear pronouncement by the pennsylvania courts as to who should have the burden of proof however i do think there are some indications well judgment i would i would respectfully disagree i think that it is one of the elements because it is in structure and this portion was added later on from the original tort claims act it's actually consistent with five other exceptions there's a total of nine let me ask you then does that mean that a person of the situation would have to introduce evidence not only that he was not knowingly and to avoid a pursuit but they'd also have to prove all of the other eight exceptions because once you say that those nine things are elements then the defendant got to prove all those nine exceptions no i'm sorry i was probably wasn't clear there's nine exceptions to it to a governmental immunity vehicle exceptions one of the nine and so under that exception which which is what we're talking about it has language that says that if there is negligence in the operation of a motor vehicle by a police officer or a government the other exceptions each of them contain the same language they preexisted this addition to the vehicle except the real property goes and says or can be negligence for the care custody and control d and then it starts with except that and it lists some conditions that the plaintiff asked to prove the same thing under the trees traffic controllers exceptions there's negligence except that plaintiff has to prove and list yellow meant so i think in terms of structure of the vehicle exceptions consistent with four exceptions that preceded it number one number two in order to fit under any or have a viable claim that gets around the governmental need is three things that have to be established when the damages were available a common law two there was negligence by  analysis and went through five different factors to look at and concluded in held that if someone's in full or fleeing from the police they're barred there is no duty owed by an officer and gave all the reasons for it there is kind of a back though into what has been who is i mean and that is this it's kind of set up in the rabbits already in the hat once the the instruction is given in terms of the burden of proof then that kind of sets everything up that you're saying but if there's a real issue in terms of whether or not he was actually knowingly fleeing from police then which is saying doesn't follow that what you're saying that argues both beyond a factual term burglary in terms of what happened back at the bar in your brief i think eleven times i counted nine my records that it was eleven times that it was specifically brought up to trial and the court specifically refused to allow the term for you in terms of using burglary the way you did in in the brief was less than professional and i think it totally improper and probably bordering on and i would say and i think although it probably wasn't ethical but clearly improper the respect or burglary  back that there is not it officers don't owe a duty to someone's feeling that's consistent with the structure of the statute that was the basis of the trial court found both because of these cases there was no duty in the st zero dollars ten cents but secondarily the tort claims act and there's  ability and immunity scheme that would not apply because i thought what we have here right so i'm going to i'm going to turn to the harmless error because there's already already been some argument discussion about that and this is not as counsel i steamed hone it said a close call this isn't one where there was you know of a fair wayne of evidence on either side yeven ince that the plaintiff presented that to a jury that a reasonable person wouldn't have known that he was fleeing from the police trial testimony essentially said i wasn't in my right mind time and i cross examine him as you get different answers and different explanations and his deposition and why that's significant as his case largely hinged on his credibility if the jury believed that a reasonable person in his shoes would not have known the police were attempting to detain him he evidently other side was was overwhelming this was not a close call with testimony of two women who were the bartenders who were at the happy chap who spent specifically testified that is mr rivera was banging on the windows demanding to be given entrance they were intended if you don't leave we're going to call the police and one of the witnesses i indicated that he was a goon which implies that he's part of the yanks these two women were absolutely terrorized they tell him we're going to call the police reasonable person and you'll notice that the police maybe call  that happens and that is an important point because mr rivera moments before he ran saw a marked cruiser drive by and you can see it on the video well the video is not the most precise that you know thought they were there for him though why did he think they were there evidence that a reasonable person having been forewarned the police were coming and hear sirens and reasonable person may conclude that they're there for him officer waller who has a right you know and fight yell out to mr rivera and  gentleman by the way just not to confuse things but they were outside the bar as well i believe their report a friends of the two women inside what will or yell to them you know stops they right there bethlehem police identified himself was when mr rivera began to run he was in full uniform it was an undercover plain clothes he was in full uniform and that brings up an interesting question that i hadn't thought of before because the opposite who struck knows that they're fleeing from an officer and another officer to into a vehicular violation runs them down does it go that far with the exception and i hadn't thought about that in just hearing your argument because me that's  question i'm not at all sure the answer to it but it would seem in terms of the scheme of the immunity is that you you were in is that you being pursued would have to go to excuse the conduct the pressure of the person who actually r case where in fact the question was put to the jury and the jury was given the information that the plaintiff had information the officer claimed there was a dispute just like in this case and the jury concluded the next case that a reasonable person in mr white's years would not have known has been pursued by the police now the opinion doesn't say which party has the burden of proof but the question was posed very much like judge fisher and mentioned earlier it was a question that injury had to decide  regardless of whether at the end of the instruction didn't specifically say who had the burden so to the point that you know this just is unfair to the mr rivera it works a jury very well could have believed minutely was extremely intoxicated and gave conflicting versions of what he saw and recalled at his deposition his trial so this this was not a close call whether the burn was fifty point one percent one way or fifty point one percent the other way mr mcmahon let me ask you this one question on the arbus air standard you know how do we know the jury didn't say to itself the evidence is evenly matched the burden is on rivera said it's break the tie and officer options favor i do we know it didn't happen well i suppose we don't know that other than there was about twenty pieces of evidence that a reasonable person would have know darn well the police were there for him st and that was multiple believe they would have found no to that question and go on to the additional questions if they both leave them or they didn't believe them and they believed this avalanche of evidence on the other side they answered yes and that included a so i think it was this was a case right well i do except that i think it's unclear from case law who had the burden i still believe and i agree with the trial court that the burden lie with plaintiffs even so i think this was a classic case of harmless error and unless you snitches and i don't know the record that well what was the testimony around that when he said to promote lead folks inside i am a goon was that clear and maybe i should have asked miss mean that the people inside  what the bartenders testified was that they told mr rivera look if you don't leave we're going to call the police i mean he had given them his driver's license it's not as if he was terrorizing these women he you're going to do with me i'm going to deal with you if that's the scenario and then he's told look you get out here i'm calling t and then you've got a really different scenario in terms of what a person would believe that the bartender certainly told mr rivera if you don't if you don't leave we're going to call the police there was just there was it was quite disputed at trial how many times they told him and that's that's in the brief but but as the district court determined here and in a well reasoned determination that's not under review mr there and then left side cop car drive by that didn't stop and determine long but it was it was the st they said if you don't leave we'll call the police mr and then mr rivera testified and all parties testify and i think as well that after that time a marked police car drove by and determined not person charging him on foot who didn't identify himself as a police officer whatsoever ran at mr rivera without identifying himself and mr of ran from whoever that that stranger was and i even see him correct the officer had no idea whether it's not is it mr hobbs it was him pursuit of mr a there he didn't know if he had him or ran a pedestrian but i i do want to get to my friend's point that there was an avalanche of evidence on one you know on one side and just mr  there on the other that's that's not true and in any event it doesn't matter it's not about you putting on nine witnesses and another side putting on one that's not how the jury weighs the evidence and in fact they're instructed not to weigh the evidence that way it's a credibility determination and that the district court held against my friend on this issue and said no it's not a one way this is a close call it goes to the jury whether they believe mr of there that the officer did not identify himself or whether they believe these other witnesses that that he did and as the district court said this case is not a power what happened in the bar this case because mr hobson had no idea this case was about mr hobson's negligence and what happened in the street now  happened in the street and wondered how a reasonable person would perceive the circumstances of the street that is directly happened tied to what happened at the bar he just kind of said come to the door and said hey you know to commit get a drink or two police were coming so it's not about what and that's not how the case was instructed to the jury it's about did the officer take some action to put a reasonable person on notice that the that the police were on their  way and this you know mr mcmahon testa you know obviously credit the bar tenders testimony that it was a big commotion they were scared that's not at all how mr vera told the story he said i slit my idea under he said serve me i'm twenty one you know st birthday but not nothing like the nothing like the bartenders testified and so we don't know what the jury would have determined had they had they had the jury been told it's not mr various burden to prove he was not in place mr hobson needs to show that the police took some objective action to put a reasonable person on notice that that the police were on their way and i think that this court's decisions in waldorf which was just about who had the burden of proof the government or the plaintiffs on reasonableness and the supreme court's language in me and which says the proponents of the evidence standard really matters when when the jury is there where there's some doubt they resolve it in the other direction this case isn't about was mr rivera an angel that night mr rivera will be has paid and will pay the consequences for this night for the rest of his life but he ha never had a jury trial with the correct legal standard that he is entitled to to determine whether mr hobson's negligence played any role and if so how much of a role and i