Murray, A. v. Tripodi, D. ( 2018 )

J. A12041/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ANDRE MURRAY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DOMINIC TRIPODI & :
JOSEPHINE TRIPODI : No. 98 EDA 2017
:
APPEAL OF: JOSEPHINE TRIPODI :
Appeal from the Order, November 15, 2016,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. June Term, 2014 No. 0495
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 16, 2018
Appellant, Josephine Tripodi, appeals from the November 15, 2016
orders entered by the Court of Common Pleas of Philadelphia County denying
her post-trial motion to enter a compulsory nonsuit1 and granting
Andre Murray’s (“appellee”) motion for a new trial on the issue of damages.
After careful review, we affirm.
The trial court provided the following factual and procedural history:
The instant appeal, filed by [appellant,] on
December 9, 2016, stems from two orders issued by
1 A motion for compulsory nonsuit is filed and ruled upon by the trial court
prior to a case’s submission to the jury. Int’l Diamond Importers, Ltd. v.
Singularity Clark, L.P., 40 A.3d 1261, 1274 (Pa.Super. 2012), citing Poleri
v. Salkind, 683 A.2d 649, 653 (Pa.Super. 1996), appeal denied, 698 A.2d
595 (Pa. 1997). Because appellant’s motion was filed post-trial, we shall treat
it as a motion for judgment notwithstanding the verdict (“JNOV”), which is
properly filed as a post-trial motion. See Pa.R.Civ.P. 227.1(a)(2).
J. A12041/18
[the trial court] on November 15, 2016, through which
[the trial court] respectively denied [a]ppellant’s
“Post-Trial Motion to Enter a Compulsory Non-Suit in
Favor of [Appellant]” (“Post-Trial Motion for
Compulsory Non-Suit”), and granted [appellee’s]
“Motion for a New Trial on Issue of Damages” (“Motion
for New Trial”). . . .
The relevant facts, set forth in the light most favorable
to [a]ppellee as the verdict winner, are as follows: On
February 17, 2014, a storm deposited approximately
six inches of snow on downtown Philadelphia. Two
days later, on the evening of February 19, 2014,
[a]ppellee decided to walk from his house at
1036 South Carlisle Street in Philadelphia to a nearby
Chinese restaurant located at Broad and Morris
Streets, intending to purchase some take-out food for
himself and his wife, and then return home for a
relaxing evening in front of the television.[Footnote 1]
Appellee started his trip by travelling east across
Carlisle Street, which had already been plowed by that
point, reaching the sidewalk on the other side and
then headed south towards Reed Street. As
[a]ppellee slowly navigated this sidewalk, he slipped
and fell at a location abutting the rear of the Tripodi
Property,[Footnote 2] twisting his right ankle in the
process, yelling in agony, and feeling a sharp pain in
the affected ankle which he rated as “10” on a
10-point scale (i.e. the worst pain he had ever felt);
according to [a]ppellee, the sidewalk adjacent to the
Tripodi Property’s west side was still covered in five or
six inches of snow, concealing a layer of ice
underneath that [a]ppellee quickly discovered when
he lost his footing.
[Footnote 1] According to [a]ppellee, the
distance between his home and the
restaurant is only a few city blocks.
[Footnote 2] The formal mailing address
of the Tripodi Property is 1322 South
Broad Street in Philadelphia; however,
South Carlisle Street and the sidewalk
-2-
J. A12041/18
where [a]ppellee fell both run along the
Tripodi Property’s western edge.
“Shorty,” an individual whom [a]ppellee described as
being regularly present in the neighborhood,
witnessed the fall and ran over to the scene to help
[a]ppellee by grabbing him under his armpits, lifting
him up from the sidewalk, and then dragging him back
to [a]ppellee’s house. Shorty and [a]ppellee’s wife
then carried [a]ppellee inside and placed him in an
armchair, where [a]ppellee sat and applied ice packs
to his now-swollen ankle before shifting to a nearby
couch. Appellee spent the better part of the following
two days resting on this couch, but the pain in his
ankle continued to worsen, leading him to conclude on
February 21, 2014 that he needed professional
medical care. Appellee then took a cab to Methodist
Hospital, where x-rays were taken and he was told
that his ankle was, in fact, broken. Subsequently,
[a]ppellee was given pain medication and then
discharged with instructions to see an orthopedist.
Following this advice, [a]ppellee saw Dr. Marc
Zimmerman, M.D., on February 27, 2014; by this
point, [a]ppellee’s ankle swelling had subsided to
some degree, in contrast to the pain, which [a]ppellee
stated was as intense as it had been in the immediate
aftermath of his accident. Dr. Zimmerman wrapped
[a]ppellee’s ankle in a hard cast, wrote him a
prescription for Percocet, and told [a]ppellee to keep
his right leg elevated, as well as to avoid placing any
weight on it. In addition, Dr. Zimmerman told
[a]ppellee to come back at a later date for a follow-up
assessment, and referred him to a pain management
clinic. Appellee’s cast was removed in early April
2014, enabling him to start physical therapy on
April 10, 2014; [a]ppellee rated his ankle pain at this
juncture as being “8” on a 10-point scale. He adhered
to a schedule of, on average, two therapy sessions per
week over the course of the ensuing two months, after
which he ceased receiving medical treatment for his
ankle injury. As of late August 2016, [a]ppellee still
experienced intermittent “sharp pain that shoots
through [his ankle] . . . especially when it rain[s] and
-3-
J. A12041/18
when [he goes] down the subway step[s,]” the
intensity of which is “4” on a 10-point scale.
On June 4, 2014, [a]ppellee sued [a]ppellant, as well
as her husband, Dominic Tripodi, claiming that they
had negligently failed to remove snow and ice from
the sidewalk along the Carlisle Street side of the
Tripodi Property after the February 17, 2014 storm,
and were thus responsible for causing his
aforementioned ankle injury. Eventually, the case
proceeded to a compulsory arbitration hearing on
January 20, 2016, at which the panel of arbitrators
determined that [a]ppellant had not acted negligently
and consequently ruled in her favor.[Footnote 4]
Appellee appealed this decision on January 22, 2016,
leading to a one-day jury trial before [the trial court]
on August 31, 2016, at which [a]ppellee testified
regarding the circumstances of his aforementioned
injury, the resultant pain and recovery efforts, and his
current physical state. Appellee also called
Charles Harrington, a neighbor, who said he had
witnessed [a]ppellee’s fall on the Carlisle Street
sidewalk adjacent to the Tripodi Property, which
Mr. Harrington claimed was still covered with snow on
the date of the incident, despite the passage of
several days since the most-recent storm. Appellant
then briefly took the stand to say she had only found
out about [a]ppellee’s injury when he sued her, and
was then followed by her son, Joseph Tripodi, who
maintained that he had shoveled and salted the
Carlisle Street sidewalk during the afternoon on
February 19, 2014 (i.e. prior to [a]ppellee’s fall).
Thereafter, [a]ppellant verbally moved for a
compulsory non-suit, arguing that [a]ppellee had
assumed the risk of injury by walking on the
unshoveled sidewalk, meaning that [a]ppellee could
not recover damages from [a]ppellant The trial court]
denied [a]ppellant’s [m]otion, stating “[i]t is for the
jury to decide whether or not [a]ppellee’s actions were
reasonable or unreasonable . . . there [are] still
enough facts [in question] to go to the jury [for] that
[determination].” Counsel subsequently presented
their respective closing arguments, and [the trial
court] then instructed the jury on the law before
-4-
J. A12041/18
leaving them to their deliberations. The jury quickly
returned with a verdict in favor of [a]ppellee, finding
that [a]ppellant had been negligent in failing to
properly clear her sidewalk of snow and ice and was
thus liable for [a]ppellee’s injury, awarding [a]ppellee
$2,729 in damages for medical expenses, but none for
pain and suffering.
[Footnote 4] The arbitrators also noted
that the parties had stipulated to the
dismissal, with prejudice, of [a]ppellee’s
claims against Dominic Tripodi.
Dissatisfied with this outcome, both sides
subsequently filed post-trial motions. On
September 7, 2016 [a]ppellee submitted his Motion
for New Trial, arguing therein that “the jury’s award
of zero damages bore no reasonable relationship to
the loss from pain and suffering [he] sustained, and
was against the weight of the evidence, and utterly
shocks one’s sense of justice and conscience,”
meaning that “a new trial limited to the issue of
damages is warranted.[”] This was followed on
September 16, 2016, when [a]ppellant docketed her
Post-Trial Motion for Compulsory Non-Suit, in which
she reiterated her assumption of risk argument and
claimed [the trial court] had erred during trial by
denying her oral non-suit motion. In response, [the
trial court] ordered the parties to file supplemental
briefs addressing the issues raised in their respective
post-trial motions. After a thorough review of the
parties’ submissions, case record, and the relevant
law, [the trial court] docketed two orders on
November 15, 2016, thereby granting [a]ppellee’s
Motion for New Trial and denying [a]ppellant’s
Post-Trial Motion for Compulsory Relief.
In response, [a]ppellant appealed these rulings to the
Superior Court on December 9, 2016. Pursuant to
Pa.R.A.P. 1925(b), [the trial court] issued an order on
December 12, 2016, directing [a]ppellant “to file of
record with the Prothonotary[,] and serve upon [the
trial court] and all parties in interest, a concise and
itemized Statement of Errors Complained of not
-5-
J. A12041/18
late[r] than twenty-one (21) days after the entry of
this Order,” cautioning [a]ppellant in this order that
noncompliance would “be deemed a waiver of issues.”
Trial court opinion, 3/1/17 at 1-5 (citations to the record and some footnotes
omitted).
Appellant filed her Rule 1925 statement with the Philadelphia County
Office of Judicial Records (formerly Office of the Prothonotary) on
December 30, 2016; however, the trial court averred that appellant failed to
serve her statement upon the trial court until January 9, 2017, thus waiving
her issues on appeal. (See id. at 5-7.) A previous panel of this court, citing
“court closures and vacations around the New Year’s holiday,” found that
appellant “demonstrated good cause to consider her Rule 1925(b) statement
as timely filed and delivered to the [trial court] on December 30, 2016.”
Murray v. Tripodi, No. 98 EDA 2017, unpublished judgment order at *4
(Pa.Super. filed January 30, 2018). An earlier panel of this court remanded
the case to the trial court so the trial court could file a supplemental
Rule 1925(a) opinion addressing the issues raised on appeal, while retaining
jurisdiction. The trial court filed its supplemental opinion on March 1, 2018.
On February 2, 2018, the panel granted appellant’s petition for continuance
of oral argument, thus relinquishing jurisdiction. As a result, the case was
assigned to this panel.
Appellant raises the following issues on appeal:
[1.] Did the [t]rial [c]ourt err as a matter of law and
abuse its discretion in denying [appellant’s]
-6-
J. A12041/18
Motion for Compulsory Non-Suit and Post[-]Trial
Motion for Compulsory Non-Suit (JNOV), when
recovery should have been barred by the legal
doctrine of assumption of risk, based upon the
evidence presented in [appellee’s] case-in-
chief?
[2.] Did the [t]rial [c]ourt err as a matter of law in
granting [appellee’s] Post-Trial Motion for New
Trial on all issues when [a]ppellee waived the
right to raise the matter complained of in
[appellee’s] Post[-]Trial Motion by failing [to]
assert grounds therefor at [t]rial, pursuant to
Pa.R.C.P. 227.1(b)(1)?
3. Did the [t]rial [c]ourt err as a matter of law and
abuse its discretion by disturbing the [j]ury’s
verdict on damages by granting [appellee’s]
Post-Trial Motion for New Trial on damages
only?
Appellant’s brief at 3.2
In her first issue, appellant avers that the trial court abused its discretion
when it denied her post-trial motion for JNOV. While appeals of denials of
motions for JNOV are interlocutory and generally non-appealable until a
judgment has been ordered and docketed, a denial of a motion for JNOV will
be reviewed on appeal in cases where a new trial is granted. See Buck v.
Scott Township, 472 A.2d 691, 693 (Pa.Super. 1984).
2 The first issue listed in appellant’s brief addressed whether appellant’s appeal
should be quashed due to her alleged failure to timely serve the trial court
with her Rule 1925(b) statement. As noted above, a previous panel of this
court disposed of this issue, and we need not include it with appellant’s other
issues raised on appeal. We have re-numbered appellant’s remaining issues
accordingly. For ease of discussion, we have also re-ordered appellant’s
remaining issues.
-7-
J. A12041/18
The standard governing motions for JNOV is as follows:
There are two bases upon which a [JNOV] can be
entered: one, the movant is entitled to judgment as
a matter of law, and/or two, the evidence was such
that no two reasonable minds could disagree that the
outcome should have been rendered in favor of the
movant. With the first, a court reviews the record and
concludes that with all factual inferences decided
adverse to the movant the law nonetheless requires a
verdict in his favor, whereas with the second, the
court reviews the evidentiary record and concludes
the evidence was such that a verdict for the movant
was beyond peradventure.
Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa.Super. 2010), appeal denied, 14
A.3d 829 (Pa. 2010), quoting Holt v. Navarro, 932 A.2d 915, 919 (Pa.Super.
2007), appeal denied, 951 A.2d 1164 (Pa. 2008).
In cases involving JNOV, we have repeatedly cautioned that:
JNOV, however, may not be employed to invade the
province of the jury. Thus, when there is a question
of fact to be resolved, it is within the sole purview of
the jury. JNOV should not be entered where evidence
is conflicting upon a material fact. Thus, where the
jury has been presented with conflicting evidence, a
motion for JNOV should be denied.
Renninger v. A & R Machine Shop, 163 A.3d 988, 995 (Pa.Super. 2017),
appeal denied, 179 A.3d 7 (Pa. 2018), quoting Rohm & Haas Co. v. Cont’l
Cas. Co., 732 A.2d 1236, 1248 (Pa.Super. 1999), affirmed, 781 A.2d 1172
(Pa. 2001) (emphasis in original).
Specifically, appellant avers that the legal doctrine of assumption of the
risk bars appellee from recovery and that the trial court “committed an error
-8-
J. A12041/18
of law and abused its discretion by not granting [appellant’s] Motion[s] for a
Compulsory Non-Suit [and JNOV.]” (Appellant’s brief at 17.)
Assumption of the risk is established as a matter of
law only where it is beyond question that the plaintiff
voluntarily and knowingly proceeded in the face of an
obvious and dangerous condition. Voluntariness is
established only when the circumstances manifest in
a willingness to accept the risk. Mere contributory
negligence does not establish assumption of the risk.
Rather, a plaintiff has assumed the risk where he has
gone so far as to abandon his right to complain and
has absolved the defendant from taking any
responsibility for the plaintiff’s injuries. In order to
prevail on assumption of the risk, the defendant must
establish both the awareness of the risk and the
voluntariness prong.
....
A trial court should not, therefore, decide the issue as
one of duty or lack thereof; instead, the issue should
go to the jury as one of comparative negligence. As
noted in the comment to the Restatement [(Second)
of Torts] discussing implied assumption of risk, “Since
interpretation of conduct is seldom so clearly indicated
that reasonable men could not differ as to the
conclusion, it is ordinarily a question for the jury
whether what the plaintiff has done is a manifestation
of willingness to accept the risk.” Restatement
(Second) of Torts § 496C cmt. h (1965).
Staub v. Toy Factory, Inc., 749 A.2d 522, 529-530 (Pa.Super. 2000)
(en banc). The Staub court also noted that under such an approach,
“assumption of the risk would no longer be part of the jury’s deliberations or
instructions.” Id. at 527, quoting Howell v. Clyde, 620 A.2d 1107, 1113
(Pa. 1993) (plurality).
-9-
J. A12041/18
In light of this court’s decision in Staub, we find that the trial court did
not abuse its discretion when it denied appellant’s motion for compulsory
nonsuit. We further find that the trial court did not abuse its discretion when
it sent the case to the jury as a comparative negligence issue. Accordingly,
appellant’s first issue is without merit.
Appellant next contends that the trial court erred when it granted
appellee’s motion for post-trial relief, averring that appellee waived the issue
by failing to object pursuant to Pennsylvania Rule of Civil Procedure 227.1.
Specifically, appellant argues that appellee should have objected to the jury’s
verdict pursuant to Rule 227.1(b)(1). (See appellant’s brief at 30.) Appellant
further contends that a “ground for new trial or [JNOV] may not be raised for
the first time in the [m]otion for [p]ost-[t]rial [r]elief.” (Id.)
Rule 227.1(b)(1) states, as follows,
(b) Except as otherwise provided by
Pa.R.E. 103(a)[], post-trial relief may not be
granted unless the ground therefor,
(1) If then available, were raised in
pre-trial proceedings or by motion,
objection, point for charge, request
for findings of fact or conclusions of
law, offer of proof or other
appropriate method at trial . . .
Pa.R.Civ.P. 227.1(b)(1).
Aside from Rule 227, the only other authority to which appellant cites is
our supreme court’s decision in Dilliplaine v. Lehigh Valley Trust Co., 322
A.2d 113 (Pa. 1974). In Dilliplaine, our supreme court held that because the
- 10 -
J. A12041/18
appellant “failed to specifically object to the trial court’s [jury] instruction on
presumption of due care,” the issue was waived on appeal. Id. at 117. As
stated by the trial court,
Generally, a party waives the right to ask for [a] new
trial by not objecting to problems with a verdict before
the jury is dismissed. Picca v. Kriner, [645 A.2d
868, 872 (Pa.Super. 1994), appeal denied, 651 A.2d
540 (Pa. 1994)]. However, “the Picca waiver rule is
only applicable to cases in which a litigant’s failure to
object to improper or ambiguous jury instructions or
interrogatories causes an inconsistent verdict. The
waiver rule should not be applied to cases in which the
verdict is clear and unambiguous, albeit problematic,
troublesome or disappointing.” Gorski v. Smith, 812
A.2d 683[, 707] (Pa.Super. 2002), [appeal denied,
856 A.2d 834 (Pa. 2004),] quoting King v. Pulaski,
710 A.2d 1200, 1204 (Pa.Super. 1998).
Supplemental trial court opinion, 3/1/2018 at unnumbered page 4.
Upon our review of the record, we find that the trial court’s instructions
to the jury were proper and unambiguous. (See notes of testimony, 8/31/16
at 190-218.) We agree with the trial court’s determination that the jury’s
verdict was “clear and unambiguous,” as the jury unanimously found appellant
to be 100% negligent. (Id. at 222-223.) Accordingly, appellee did not waive
the right to request a new trial by failing to object to the verdict before the
jury was dismissed, and appellant’s second issue is without merit.
Because we found that appellee did not waive his right to request a new
trial limited only to damages, we shall now decide appellant’s third issue. In
her third and final issue on appeal, appellant avers that the trial court abused
its discretion when it granted appellee’s motion for a new trial limited only to
- 11 -
J. A12041/18
damages. In the instant case, the jury returned a verdict awarding appellee
$2,729 in damages for medical expenses; however, the jury did not award
appellee any damages for pain and suffering. (Id. at 221-224.) Appellant
contends that “[c]redibility as to pain and suffering was called into question
during the inconsistent testimony provided by [appellee], which ultimately led
the [j]ury to . . .[,] as it was permitted to do, [] disbelieve [appellee] on the
issue of compensable pain and suffering.” (Appellant’s brief at 26.) Put
another way, appellant appears to be arguing that the jury reached a
compromise verdict, and was permitted to do so, by awarding no damages for
pain and suffering. For the foregoing reasons, we do not agree.
Our cases have stated the following pertaining to compromise verdicts:
[W]here a substantial conflict exists on the question
of liability, such that a low verdict might indicate that
the jury compromised the liability issue with the
amount of damages awarded, it is an abuse of
discretion for the lower court to grant a new trial
limited to damages.
Kindermann v. Cunningham, 110 A.3d 191, 195 (Pa.Super. 2015), appeal
denied, 119 A.3d 351 (Pa. 2015), quoting Gagliano v. Ditzler, 263 A.2d
319, 321 (Pa. 1970) (citation omitted). In Carlson v. Bubash, 639 A.2d 458,
460 (Pa.Super. 1994), this court held that “notwithstanding a finding of
comparative negligence, when liability is contested and conflicting testimony
is presented, compromise verdicts are permissible to establish an amount that
the jury determined would justly compensate a plaintiff for his loss.” Id.,
quoted by Kindermann, 110 A.3d at 194.
- 12 -
J. A12041/18
While a jury is permitted to reach a compromise verdict, it is not
permitted to reach an inconsistent verdict. In Fischer v. Troiano, 768 A.2d
1126 (Pa.Super. 2001), the plaintiff sustained a compression fracture to the
T-11 vertebra. Id. at 1130. The jury awarded the plaintiff damages totaling
$24,588.73 for medical expenses but did not award any damages for pain and
suffering. Id. at 1128. The jury also found the plaintiff to be 40% negligent.
Id. The plaintiff filed a post-verdict motion for a new trial limited only to
damages, which the trial court granted. Id. The defendants filed an appeal
to this court.
On appeal, we restated the following pertaining to pain and suffering
damages:
Tort victims must be compensated for all that they
lose and all that they suffer. Where a jury awards a
plaintiff his medical expenses, they make a finding
that the expenses were related to the defendant’s
actions in injuring the plaintiff. However, by not
awarding any pain and suffering, the jury also makes
a finding that the plaintiff did not suffer as a result of
his injuries and subsequent surgery. Such findings
are inherently inconsistent.
Id. at 1129, quoting Dougherty v. McLaughlin, 637 A.2d 1017, 1019
(Pa.Super. 1994).3 The Fischer court also noted that “a broken bone is the
3The jury in Dougherty awarded the plaintiff the exact amount of his medical
expenses in damages, but failed to award any damages for pain and suffering.
Fischer, 768 A.2d at 1129. The Dougherty jury found the plaintiff to be
44% causally negligent for his injuries. Id.
- 13 -
J. A12041/18
type of injury which human experience teaches us is accompanied by pain.”
Fischer, 768 A.2d at 1130.
The Fischer court also addressed whether the jury had reached a
compromise verdict. Specifically, the court stated that it was beyond dispute
that the plaintiff suffered a compression fracture of the T-11 vertebra, that
she was hospitalized as a result of her injury, and that her injury required a
three-month healing period. Id. at 1132. The court found that the jury,
disregarded the trial court’s instruction requiring them
to compensate [the plaintiff] for her pain and
suffering, loss of enjoyment of life and humiliation if
they found [the defendants] liable. Therefore, in
situations such as this, when a jury awards damages
for medical expenses, it must also award some
damages for pain and suffering which would naturally
accompany the injury.
Id.
The remedy for this issue is a new trial limited only to damages. Our
more recent cases indicate that for a court to order a new trial limited only to
damages, the following conditions must be met:
“New trials may be limited to specific issues only when
this procedure will be fair to both parties. Where the
question of negligence or contributory negligence is
not free from doubt, it is an abuse of discretion for the
trial judge to grant a new trial on the issue of damages
alone.” Gagliano, 263 A.2d at 320; Nogowski v.
Alemo-Hammad, 691 A.2d 950, 958 (Pa.Super.
1997). Specifically: a trial court may grant a new trial
limited to the issue of damages only where (1) the
question of liability is not intertwined with the
question of damages, and (2) the issue of liability is
either (a) not contested or (b) has been fairly
determined so that no substantial complaint can be
- 14 -
J. A12041/18
made with respect thereto. Gagliano, 263 A.2d at
320; see also Mirabel v. Morales, 57 A.3d 144, 152
(Pa.Super. 2012).
Kindermann, 110 A.3d at 193, quoting Banohashim v. R.S. Enters., LLC,
77 A.3d 14, 23 (Pa.Super. 2013). “Our Supreme Court has stated that liability
is not intertwined with damages when the question of damages is readily
separable from the issue of liability.” Mirabel v. Morales, 57 A.3d 144,
152 n.8 (Pa.Super. 2012), quoting Troncatti v. Smereczniak, 235 A.2d 345,
246 (Pa. 1967).
Here, we find that the nature of appellee’s injuries and the amount he
is owed to compensate him for his injuries are not related and are readily
separable. See Mirabel, 57 A.3d at 152 n.8. Additionally, the jury fairly
determined the issue of liability when it found appellant 100% liable to
appellee. Accordingly, the issues of liability and damages are not intertwined,
and appellee has met the requisite threshold to be granted a new trial limited
only to damages.
We must now determine whether the jury returned an inconsistent
verdict when it awarded appellee no damages for pain and suffering. It is
beyond dispute that appellee sustained a fractured right ankle. (Notes of
testimony, 8/31/16 at 82.) As the Fischer court noted, “a broken bone is the
type of injury which human experience teaches us is accompanied by pain.”
Fischer, 768 A.2d at 1130. Accordingly, we find that the jury returned an
inconsistent verdict by not awarding appellee any damages for pain and
- 15 -
J. A12041/18
suffering, and the trial court did not abuse its discretion when it granted
appellee’s post-trial motion for a new trial limited only to damages.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/18
- 16 -