Anthony, M. & C. v. Rizzo, S. & L. ( 2018 )

J-S16020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARGARET ANTHONY AND CARMEN : IN THE SUPERIOR COURT OF
ANTHONY : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1067 MDA 2017
SAM RIZZO AND LISA ZAVADA :
RIZZO :
Appeal from the Judgment Entered August 16, 2017
In the Court of Common Pleas of Luzerne County Civil Division
at No(s): 12175-CV-2015
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 03, 2018
Margaret Anthony and Carmen Anthony (Appellants) appeal from the
judgment entered after a jury awarded them $0 damages in this negligence
action.1 Upon careful review, we affirm.
This case arises from an alleged dog bite attributed to a standard poodle
owned by Sam Rizzo and Lisa Zavada Rizzo (the Rizzos). Margaret Anthony
was employed by the Rizzos as a house cleaner, and on May 23, 2014,
Appellants arrived together at the Rizzos’ home. Lisa Rizzo was in her car and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellants purported to appeal from the June 6, 2017 order denying their
motion for post-trial relief. That order is interlocutory, as an appeal properly
lies from the entry of judgment, not from the denial of post-trial motions. See
Pa.R.A.P. 301(a)(1), (c), (d); Prime Medica Assoc. v. Valley Forge Ins.
Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009). Judgment was properly
entered on August 16, 2017, and we have amended the caption accordingly.
J-S16020-18
the dog was unrestrained in the rear seat with the windows open. Lisa greeted
Margaret as Lisa backed out of the driveway, and Margaret approached the
car. The dog barked from the rear driver’s side as Margaret approached; the
dog then came into contact with Margaret’s right forearm.
That same day, Margaret treated with family physician Dr. Alan L.
Boonin for what she described as a dog bite. Dr. Boonin diagnosed Margaret
with an avulsion, or tearing of the skin, on her right forearm, and he cleaned
the area, applied steri-strips, prescribed antibiotics and administered a
tetanus booster shot. N.T., 4/18/17, at 71-73. Margaret had a follow-up visit
with Dr. Boonin approximately one month later, on June 15, 2014, when Dr.
Boonin observed that Margaret appeared to be healing. He did not refer
Margaret to a plastic surgeon to discuss scarring-related issues.
Appellants initiated a lawsuit on October 29, 2015, raising a claim of
negligence against the Rizzos.2 They alleged, inter alia, that Margaret suffered
injuries as a result of the bite from the Rizzos’ dog. On April 4, 2017,
Appellants filed a motion to preclude a verdict slip question and jury
instruction on factual cause, which the trial court denied.
Trial commenced on April 18, 2017. Margaret testified that the dog
lunged out of the car window and bit her twice on the forearm, causing her to
bleed and sustain scarring. Margaret testified that she suffered from mental
____________________________________________
2 Appellants’ complaint also included counts of negligence per se, premises
liability, punitive damages, and loss of consortium for Carmen Anthony. Only
the issue of negligence was presented to the jury and included in the verdict
slip.
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J-S16020-18
anguish and embarrassment as a result of the incident. Margaret’s sister,
Marlene Snedeker, testified that Margaret became fearful following the
incident and she no longer enjoyed walks through their neighborhood.
Appellants also called Dr. Boonin as a fact witness regarding his personal
observations and medical records for Margaret.
Appellants additionally called Lisa Rizzo to testify as if on cross-
examination. Lisa testified that Margaret rested her arm on the window while
the dog was barking, and that Margaret’s injury was nothing more than a
minor scratch with only minimal bleeding. N.T., 4/18/17, at 57-59. She
stated that she offered to wipe the affected area with a tissue, but Margaret
said she planned to clean it with alcohol inside Lisa’s home. Id. at 57-58.
Lisa testified again during the Rizzos’ case in chief, and provided the
same account of the incident. Neither party introduced any expert testimony.
In its jury instructions, the trial court instructed on factual causation as
follows, in relevant part:
In order for the [Appellants] to recover in this case, the
[Rizzos’] negligent conduct must have been a factual cause in
bringing about the harm. Conduct is a factual cause of harm when
the harm would not have occurred absent the conduct. To be a
factual cause, the conduct must have been an actual real factor in
causing the harm, even if the result is unusual or unexpected.
A factual cause cannot be an imaginary or fanciful factor having
no connection or only an insignificant connection with the harm.
To be a factual cause, the [Rizzos’] conduct need not be the only
factual cause. The fact that some other causes — the fact that
some other causes concur with the [Rizzos’] negligence in
producing an injury does not relieve the [Rizzos] from liability, as
long as their own negligence is a factual cause of the injury.
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N.T., 4/19/17, at 181-82.
As reflected on the verdict slip, the jury found that the Rizzos were
negligent and that their negligence was a factual cause of any harm to
Margaret. However, the jury further found that 50% of the causal negligence
was attributable to Margaret and 50% was attributable to the Rizzos, and that
the total amount of damages sustained by Margaret as a result of the incident
was $0.
Appellants filed a timely motion for post-trial relief on April 28, 2017
seeking, inter alia, a new trial on the issue of damages. The Rizzos filed an
answer. The trial court entered an order dated June 6, 2017 denying
Appellants’ post-trial motion. Appellants filed a notice of appeal, and
subsequently complied with the court’s Pa.R.A.P. 1925 order to file a concise
statement of errors complained of on appeal. On August 15, 2017, this Court
issued an order directing Appellants to praecipe for judgment in accordance
with the trial court’s June 6, 2017 order, and final judgment was entered on
the trial court docket on August 16, 2017. The trial court subsequently issued
a Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
A. Whether the trial court abused its discretion and/or
committed an error of law in denying [Appellants’] motion to
preclude a verdict slip question and jury instruction on factual
cause when it was uncontroverted that [Margaret] has suffered
some injury as a result of the subject incident.
B. Whether the trial court abused its discretion and/or
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J-S16020-18
committed an error of law in denying [Appellants’] motion for
post-trial relief seeking a new trial on damages since the jury’s
verdict was so contrary to the evidence that it shocks one’s sense
of justice.
Appellants’ Brief at 4 (unnecessary capitalization and suggested answers
omitted).
In their first issue, Appellants argue that the trial court erred in charging
the jury with an instruction on factual cause when it was undisputed that
Margaret suffered some injury as a result of the incident. Appellants contend
that the instruction and verdict slip “did nothing more than confuse the jury
and result[ ] in a jury verdict that is against the weight of the evidence.” Id.
at 10.
We recognize:
Our standard of review regarding jury instructions is limited to
determining whether the trial court committed a clear abuse of
discretion or error of law which controlled the outcome of the case.
Error in a charge occurs when the charge as a whole is inadequate
or not clear or has a tendency to mislead or confuse rather than
clarify a material issue. Conversely, “[a] jury instruction will be
upheld if it accurately reflects the law and is sufficient to guide the
jury in its deliberations.”
The proper test is not whether certain portions or isolated
excerpts taken out of context appear erroneous. We look to
the charge in its entirety, against the background of the
evidence in the particular case, to determine whether or not
error was committed and whether that error was prejudicial
to the complaining party.
In other words, there is no right to have any particular form of
instruction given; it is enough that the charge clearly and
accurately explains the relevant law.
Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015) (citations and
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some quotation marks omitted), appeal denied, 125 A.3d 778 (Pa. 2015).
Further, “[w]hile we recognize that the [Pennsylvania Standard Jury
Instructions] are not binding on trial courts, [they] are nonetheless
instructive.” Gorman v. Costello, 929 A.2d 1208, 1213 (Pa. Super. 2007).
Here, our review reveals that the trial court’s jury instruction on factual
cause was nearly identical to Pennsylvania Standard Jury Instruction 13.20
(Civ. 2017). The trial court rejected Appellants’ argument that an instruction
on factual causation misled or confused the jury, stating:
Appellants argued that, if the jury found [the Rizzos] negligent, it
must find that such negligence was the factual cause of
Margaret[]’s injury. Indeed, following deliberations, the jury
concluded that [the Rizzos’] negligence was a factual cause of
Margaret[]’s injury. Any alleged legal error or unjust result that
Appellants wanted to avoid . . . never came to fruition because
the jury held that [the Rizzos’] conduct was a factual cause of any
injury.
Trial Court Opinion, 10/24/17, at 11-12.
Upon review of the charge as a whole, we conclude that the trial court
provided an adequate instruction for factual cause to sufficiently guide the
jury in its deliberations. See Krepps, 112 A.3d at 1256. Even if an error
occurred, we would agree with the trial court’s conclusion that such error
would be harmless because the jury found that the Rizzos’ negligence was a
factual cause of the harm to Margaret. See Bennett v. A.T. Masterpiece
Homes at Broadsprings, LLC, 40 A.3d 145, 149-50 (Pa. Super. 2012) (post-
trial request for new trial requires a showing of actual prejudice resulting from
an erroneous ruling, and this Court “will not reverse an order denying a new
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J-S16020-18
trial unless the trial court committed an error of law that controlled the
outcome of the case”). Accordingly, Appellants’ first argument is without
merit.
Next, Appellants argue that the jury’s verdict was against the weight of
the evidence. Specifically, they contend that the jury was required to award
damages upon finding the Rizzos negligent and their negligence a factual
cause of Margaret’s harm. Appellants argue that Margaret’s injuries, including
obvious and apparent scarring, are compensable and “more severe than a
muscle strain/sprain that resolves within a short period of time.” Appellants’
Brief at 19. In support, Appellants rely in part on this Court’s decision in
Caselli v. Powlen, 937 A.2d 1137 (Pa. Super. 2007), for the propositions
that a “jury is not free to ignore an obvious injury,” and that an award of $0
“represents a finding by the jury that . . . [Margaret] experienced absolutely
no compensable pain. . . .” Appellant’s Brief at 18, quoting Caselli, 937 A.2d
at 1139, 1140.
In considering whether the jury’s verdict was against the weight of the
evidence, we are mindful that:
A new trial based on weight of the evidence issues will not be
granted unless the verdict is so contrary to the evidence as to
shock one’s sense of justice; a mere conflict in testimony will not
suffice as grounds for a new trial. Upon review, the test is not
whether this Court would have reached the same result on the
evidence presented, but, rather, after due consideration of the
evidence found credible by the [jury], and viewing the evidence
in the light most favorable to the verdict winner, whether the court
could reasonably have reached its conclusion. Our standard of
review in denying a motion for a new trial is to decide whether the
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J-S16020-18
trial court committed an error of law which controlled the outcome
of the case or committed an abuse of discretion.
Elliott v. Ionta, 869 A.2d 502, 504 (Pa. Super. 2005) (internal citations
omitted).
In the Casselli decision cited by Appellants, a pedestrian initiated a
negligence action after he fell on the sidewalk outside of a property owner’s
residence and incurred $1,578 in medical expenses. Casselli, 937 A.2d at
1138. The pedestrian suffered a broken bone in his foot, and the property
owner did not dispute that the injury was caused by the fall or that the
pedestrian’s medical treatment was reasonable. Id. at 1140. The jury found
that the pedestrian and property owner were each 50% negligent in causing
the fall, but nevertheless awarded $0 in damages. Id. at 1138. On appeal,
this Court noted: “[W]here a defendant concedes liability and his or her expert
concedes injury resulting from the accident that would reasonably be expected
to cause compensable pain and suffering, the jury’s verdict is against the
weight of the evidence where it finds for the defendant.” Id. (emphasis
removed, other emphasis added) (citation omitted). We then held that the
jury’s $0 verdict was against the weight of the evidence where causation was
conceded, a broken bone is a type of injury “to which human experience
teaches there is accompanying pain,” and the property owner agreed that the
pedestrian’s medical treatment was reasonable. Id. at 1139 (citation
omitted).
After thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
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that Appellants’ challenge to the weight of the verdict does not merit relief.
Appellants did not offer any expert testimony in support of their claim
of compensable pain, relying exclusively on fact witnesses. The trial court
opinion thoroughly addresses and refutes Appellants’ contentions. See Trial
Court Opinion, 10/24/17, at 12-25 (stating that contrary to Appellants’
argument, “[a] jury is not compelled to believe that a dog bite . . . causes
compensable pain,” Boggavarapu v. Ponist, 542 A.2d 516, 518 (Pa. 1988),
and “the existence of compensable pain is an issue of credibility and juries
must believe that plaintiffs suffered pain before they compensate for that
pain,” Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001); and noting that
Appellants presented no expert medical testimony about any pain suffered by
Margaret, the Rizzos testified that Margaret suffered a mere scratch that was
a minor injury, and the jury was free to believe all, part, or none of the
evidence, see id. at 725-26).
We further hold that Casselli is distinguishable — in that case, the
broken bone suffered by the pedestrian was specifically noted as an injury
recognized by common experience as a source of pain and suffering – whereas
in the instant matter, Margaret’s dog bite or scratch could be found, as a
matter of law, to carry no compensable pain. See Boggavarapu, 542 A.2d
at 518. Because the Honorable Lesa S. Gelb, sitting as the trial court, has
authored an excellent analysis of Appellants’ second issue, we adopt the
opinion as our own. The parties shall attach a copy of the trial court’s opinion
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dated October 24, 2017, to all future filings in this matter that cite this
memorandum.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2018
- 10 -
Circulated 03/15/2018 03:32 PM
Margaret Anthony and In the Court of Common Pleas
Carmen Anthony, of Luzerne County
Appellants
CIVIL ACTION - LAW ....
VS.
Sam Rizzo and
Lisa Zavada Rizzo,
Appellees No. 12175 of 2015
OPINION
Background
Appellants initiated suit against Appellees by filing a Complaint
on October 29, 2015, alleging that Appellant Margaret Anthony
("Margaret Anthony") suffered injuries as a result of a bite from
Appellees' dog on May 23, 2014.1 In advance of trial, on April 4, 2017,
Appellants filed a Motion to Preclude a Verdict Slip Question and Jury
Instruction on Factual Cause, arguing that the uncontested medical
evidence reflected that Margaret Anthony suffered injury, and, is
therefore, legally entitled to relief. (4/4/17 Motion to Preclude Factual
Cause.) On April 11, 2017, Appellees filed an Answer to Appellants'
1 Appellant Carmen Anthony, Margaret Anthony's husband, alleged injuries due to loss of
consortium. (Complaint, 1156-59.} During the trial, Appellants presented no evidence regarding
Appellant Carmen Anthony's loss of consortium claim. Accordingly, the issue of loss of
consoriium was not included in the verdict slip or otherwise presented to the jury.
Motion to Preclude Factual Cause Instruction and Verdict Slip Entry.
(4/11 /17 Answer Preclude Factual Cause.) In their Answer, Appellees
argued that, where causation is disputed, the burden of proof for
factual cause lies with the plaintiff. See (id.) Further, Appellees
asserted that they continue to dispute causation and that the jury
would be free to reject any of Appellants' evidence presented in
support of causation. See (id.)
On April 18, 2017, a trial commenced in the above-captioned
matter (the "Triol"}. At the start of the Trial, this Court deferred ruling
on Appellants' Motion to Preclude Factual Cause Instruction and
Verdict Slip Entry until after any relevant evidence was presented to
the jury (N.T.,2 p. 4-5.) Following opening statements by the parties,
Appellants' counsel called Appellee Lisa Zavada Rizzo ("Lisa Rizzo")
as a witness to be questioned as though under cross examination.
(N.T., p. 41.)
According to Lisa Rizzo, her dog that was involved in the incident
on May 23, 2014 was a standard poodle that weighed approximately
sixty-five (65) to seventy (70) pounds. (N.T., p. 44-45.) On the day of the
2 N.T. refers to the Notes of Testimony from the Trial commencing on April 18, 2017.
2
incident, Appellees' dog was in the back of Lisa Rizzo's vehicle with
the windows down to allow the entire vehicle to cool down while the
air conditioning started. (N.T., p. 55.) While Lisa Rizzo waited in the
driveway, Appellants arrived to clean her home. (N.T., p. 55-56.) After
Lisa Rizzo attempted to greet Margaret Anthony from her vehicle,
Anthony approached because she was unable to hear what Rizzo
said. (N.T., p. 56-57.) As Margaret Anthony reached Lisa Rizzos car, the
dog was barking from the rear driver's side. (N.T., p. 59, 66.)
Soon after arriving at the vehicle, Margaret Anthony came into
contact with Appellees' dog as she rested her forearm on the open
car window ledge. (N.T., p. 57.) During her testimony, Lisa Rizzo
maintained that her dog merely scratched Margaret Anthony and
that she was able to aid Anthony by wiping the area with a tissue
moistened with saliva. (N.T., p. 57.) At the time of the incident, Lisa
Rizzo noticed that Margaret Anthony's arm was bleeding a little, but
Anthony indicated that she planned to clean the area with alcohol
once inside Appellees' home. (N.T., p. 58.) Later, Lisa Rizzo called
Margaret Anthony to inform her that the dog's shots were up to date,
but that she should visit her doctor if she so desired. (N.T., p. 58.)
3
Dr. Boonin, Margaret Anthony's family physician, treated her on
the date of the incident for an injury to her forearm that she described
as a dog bite. (N.T., p. 70.)Dr. Boonin's records from that day indicate
that his diagnosis was a 11
••• right forearm evulsion of the skin and a
one-inch hematoma with no bite marks." (N.T., p. 71.) An evulsion is a
tearing away of the skin. (N.T., p. 72.) ln Margaret Anthony's case, this
meant that the top part of her right forearm skin was torn away from
the lower fatty tissue layer. (N.T., p. 72.) Dr. Boonin also explained that,
with a dog bite, the teeth could get under the skin and pull it over,
leaving no actual bite marks. (N.T., p. 72.) To treat Margaret Anthony's
arm, Dr. Boonin cleaned it, applied steri-strips, prescribed an
antibiotic, and administered a tetanus booster shot. (N.T., p. 73.)
According to Dr. Boonin, he prescribed an antibiotic because of the
high rate of infection associated with animal bites, and administered
the tetanus booster shot as he would in any case involving a bite or a
tear of the skin from an object. (N.T., p. 73.) Dr. Boonin saw Margaret
Anthony again on June 15, 2014 and noted that her forearm evulsion
was healing. (N.T., p. 73.) Dr. Boonin never referred Margaret Anthony
to a plastic surgeon for the injury. (N.T., p. 81.)
4
According to Margaret Anthony, on the day in question, she
approached Lisa Rizzo•s vehicle even though the dog was barking
because the dog often barked at her. (N.T., p. 89.) Margaret Anthony
denied leaning on the window ledge, as Lisa Rizzo described, and,
explained that the dog lunged out of the reor window to bite her
twice on the arm. (N.T., p. 89.) After noticing blood running down her
arm, Margaret Anthony went into the house to clean the wound with
peroxide. (N.T., p. 89.) She then proceeded to Dr. Boonin s office for
1
an emergency appointment, instead of going to an emergency
room. (N.T., p. 89.) After the visit to Dr. Boonin's office, she was taking
Aleve for the pain at the wound site. (N.T., p. 100.)
During Margaret Anthony's testimony, Appellants' counsel
published to the jury a photograph of her arm that was taken a few
months after the incident (N.T., p. 92-93.) Margaret Anthony also
showed the jury her arm from the witness stand. (N.T., p. 94.) She
testified that, since the day of the incident, she often covers the
injured area on her arm as she is sometimes teased about .the scar.
(N.T., p. 91-92.) Also, Margaret Anthony explained that she no longer
takes walks because she is afraid of dogs and still has nightmares
5
about the incident. {N.T., p. 95-97.) Margaret Anthony never treated
with a doctor for these nightmares. {N.T., p. 113.) Following the
incident, Margaret Anthony never returned to work for Appellants;
however, Dr. Boonin did not instruct Margaret Anthony that she could
not work because of her injury. {N.T., p. 97, 113.)
Later, Margaret Anthony's sister, Marlene Snedeker,
{"Snedeker") testified about the injury Anthony suffered and the effect
the incident had on her. (N.T., p. 116-117.) Snedeker helped her sister
clean the wound the day after the incident and noticed that she was
in visible pain during this process. {N.T., p. 118-119.)Snedeker also
explained that she and her sister used to enjoy four mile walks in both
the morning and evening, but that stopped after the incident
because of her sister's fear of dogs. (N.T., p. 117, 119-120.)
At the start of the defense's case in chief, Lisa Rizzo again
testified. (N.T., p. 146-165.) During her testimony, Lisa Rizzo reviewed
her prior depiction of the incident. (N.T., p. 146-165.) Appellant Sam
Rizzo ("Sam Rizzo") also provided testimony about the day of the
incident. (N.T., p. 165.)Sam Rizzo recalled his conversation with his wife,
Lisa Rizzo, on the day of the incident. (N.T.,p. 170.) Sam Rizzo
6
remembered Lisa explaining that Margaret Anthony was claiming the
Appellees' dog bit her and that she had a mark, like a scratch, on her
arm. (N.T., p. 170.) Also, after Lisa Rizzo advised him that Margaret
Anthony said she did not plan to sue Appellees, Sam Rizzo told his wife
to begin documenting everything that occurred with Margaret
Anthony because he feared an unfounded lawsuit. (N.T., p. 171.)
After the defense finished presenting its witnesses, this Court
delivered its charge to the jury. (N.T., p. 17 6.) Relevant to the factual
cause of any harm, this Court instructed the jury as follows:
In order for [Margaret Anthony] to recover in this
case, the [Appellees'] negligent conduct must
have been a factual cause in bringing about
the harm. Conduct is a factual cause of harm
when the harm would not have occurred
absent the conduct. To be a factual cause, the
conduct must have been an actual real factor
in causing the harm, even if the· result is unusual
or unexpected. A factual cause cannot be an
imaginary or fanciful factor having no
connection or only an insignificant connection
with the harm. To be a factual cause, the
[Appellees'] conduct need not be the only
factual cause. The fact that some other causes
- the fact that some other causes concur with
the [Appellees'] negligence in producing an
injury does not relieve the [Appellees] from
liability, as long as their own negligence is a
factual cause of the injury. (N.T., p. 181-182.)
7
The jury rendered its verdict on April 19, 2017. Relevant to the
current appeal, the jury completed the verdict slip as follows:
1. Do you find that [Appellees], Sam Rizzo and Lisa Zavada Rizzo
were negligent? Yes
2. Was the [Appellees'] negligence a factual cause of any harm
to [Appellant Margaret Anthony]? Yes ...
5. Taking the combined negligence that was a factual cause of
any harm to [Margaret Anthony] as 100 percent, what percentage of
that causal negligence was attributable to the [Appellees] and what
percentage was attributable to [Margaret Anthony]?
[Appellees] 50%
[Margaret Anthony]
6. Please state the total amount of damages, if any, sustained
by [Margaret Anthony] as a result of this accident, without regard to
and without reduction by the percentage, if any, that you have
attributed to [Margaret Anthony].
TotaliQ
8
On April 28, 2017, Appellants filed a Motion for Post-Trial Relief.
(4/28/17 Post-Trial Motion.) In Appellants' Brief in Support of Post-Trial
Motion, Appellants argued that the trial court erred by including the
issue of factual cause in its charge and on the verdict slip, and, that
the jury was required to find some amount of damages in favor of
Appellant Margaret Anthony. (4/28/17 Post-Trial Brief.) On May 5, 2017,
Appellees filed their Answer to Appellants' Motion for Post Trial Relief.
By Order dated June 6, 2017, this Court denied Appellants' Motion for
Post Trial Relief. (6/6/17 Order.) Appellants filed a Notice of Appeal to
the Pennsylvania Superior Court on July 5, 2017.
On July 27, 2017, Appellants filed their Concise Statement of
Errors Complained of on Appeal pursuant to Pa.R.A.P. No. 1925. In their
Concise Statement, Appellants raise the following issues for review:
1 . Whether it was an error in charging the jury on Factual Cause
and/or placing the question of factual cause on the verdict slip when
the evidence presented made it clear that [Margaret Anthony's]
injuries where clear and obvious and as a result of the May 23, 2014
incident.
9
2. Whether it was an error to deny [Appellants] a new trial on
damages where the jury has already found the [Appellees] were
negligent, and such negligence was the factual cause of
[Appellants'] damages.
Standard of Review
"A new trial based on weight of the evidence issues will not be
granted unless the verdict is so contrary to the evidence as to shock
one's sense of justice; a mere conflict in testimony will not suffice as
grounds for a new trial. It is beyond argument that the fact-finder is
free to accept or reject the credibility of both expert and lay
witnesses, and to believe all, part or none of the evidence." Casselli v.
Powlen, 937 A.2d 1137, 1139 {Pa. Super. 2007) (quoting Nemirovsky v.
Nemirovsky, 776 A.2d 988 (Pa. Super. 2001 )).
In addition, the Pennsylvania Supreme Court has instructed as
follows:
We have held that it is the duty of the trial court
'to control the amount of the verdict; it is in
possession of all the facts as well as the
atmosphere of the case, which will enable it to
do more evenhanded justice between the
parties than can an appellate court.' Thus, 'a
jury verdict is set aside for inadequacy when it
10
appears to have been the product of passion,
prejudice, partiality, or corruption, or where it
clearly appears from uncontradicted evidence
that the amount of the verdict bears no
reasonable relation to the loss suffered by the
plaintiff.' Hence, a 'reversal on grounds of
inadequacy of the verdict is appropriate only
where 'the injustice of the verdict stands forth
like a beacon.'' Davis v. Mullen, 565 Pa. 386, 390-
91, 773 A.2d 7 64, 7 66 (Pa.2001) {internal citations
omitted).
Discussion
First, Appellants argue that the trial court erred by including the
issue of factual cause in its instruction and on the verdict slip; however,
Appellants' argument ignores the fact that the jury explicitly found
that Appellees' conduct was a factual cause of Margaret Anthony's
harm. See (Verdict Slip.) In their Motion to Preclude a Verdict Slip
Question and Jury Instruction on Factual Cause, Appellants argued
that, because the evidence was undisputed that Margaret Anthony
suffered an injury, the jury must find factual cause and could not avoid
awarding damages by finding otherwise. (4/4/17 Motion to Preclude
Factual Cause.) Without even touching upon the merits of this
argument, the end result which Appellants sought was reached not
by a judicial ruling, but by the findings of the jury. Appellants argued
11
that, if the jury found Appellees negligent, it must find that such
negligence was the factual cause of Margaret Anthony's injury.
Indeed, following deliberations, the jury concluded that Appellees'
negligence was a factual cause of Margaret Anthony's injury. Any
alleged legal error or unjust result that Appellants wanted to avoid by
this Court granting their Motion never came to fruition because the
jury held that Appellees I conduct was a factual cause of any injury.
In their second issue presented for review, Appellants allege that
the trial court erred by denying their request for a new trial on
damages because it was against the weight of the evidence for the
jury to fail to award any damages. Appellants assert that, having
found Appellees negligent and that such negligence was a factual
cause of Margaret Anthony's harm, the jury was not free to ignore her
obvious injury and fail to award damages. Contrary to Appellants'
argument, the Pennsylvania Supreme Court has stated, ' [a] jury is not
1
compelled to believe that a dog bite or puncture by needle causes
compensable pain." Boggavarapv v. Ponist, 518 Pa. 162, 167, 542
A.2d 516, 518 (Pa. 1988).
12
"Indeed, the existence of compensable pain is an issue of
credibility and juries must believe that plaintiffs suffered pain before
they compensate for that pain." Majczyk v. Oesch, 789 A.2d 717, 723
(Pa. Super. 2001) (quoting Davis v. Mullen, 565 Pa. 386, 396, 773 A.2d
764, 769 (Pa. Super. 2001 )). Further, " ... the determination of what is
compensable injury is uniquely within the purview of the jury.11 Id. at
726.
In Majczyk v. Oesch, the Pennsylvania Superior Court affirmed
the trial court's denial of a motion for new trial, holding that a jury may
find for a defendant in the face of obvious negligence where it does
not believe that a plaintiff's alleged pain and suffering was
compensable. kl Majczyk involved a personal injury claim filed by the
plaintiffs after their vehicle was rear-ended by the defendant who was
. traveling at a speed of five (5) mph. Id. at 719. Specifically, the plaintiff
driver alleged a herniated cervical disc as a result of the accident and
sought damages for her ongoing pain and suffering. kl at 719-721.
During the trial, two of the defendant's medical experts testified
regarding the plaintiff driver's alleged injuries. kt at 721. The
defendant's first medical expert testified that the plaintiff driver
13
suffered a cervical strain in the accident and that he advised her to
keep wearing the medical collar prescribed at the emergency room.
ld. Upon review of this testimony, the Superior Court further noted that
the first medical expert testified that the plaintiff driver was 11
l 00
percent better" approximately three weeks after the occident.jd, The
defense's second medical expert, while disputing causation of the
plaintiff driver's more serious injury, still appeared to admit that the
plaintiff driver suffered some injury. KL at 721-722. The jury held in favor
of the defendant and the trial court denied the plaintiff driver's motion
for new trial. KL at 720.
Based on her characterization of 'the defendant's medical
testimony as having conceded injury, the plaintiff driver appealed the
defense verdict to the Pennsylvania Superior Court, arguing, in part,
that the jury verdict was against the weight of the evidence presented
at trial. KL at 720. In its opinion, the Superior Court summarized the
general rule of the cases relied upon by the plaintiff driver as follows:
11
••• where a defendant concedes liability and his or her expert
concedes injury resulting from the accident that would reasonably be
expected to cause compensable pain and suffering, the jury's verdict
14
is against the weight of the evidence where it finds for defendant." Id.
at 722. The Maiczyk Court then explored the meaning of
compensable pain and suffering by detailing the Pennsylvania
Supreme Court's analysis of two seemingly conflicting lines of cases in
Davis v. Mullen. kl at 722-723. Relying on Davis and other related
cases, the Maiczyk Court found that, although the trial included
disputed evidence regarding the severity of the injuries, the jury was
free to believe all, part, some, or none of that evidence. kl at 726.
Affirming the trial court's denial of a new trial, the Superior Court
determined that " ... while the jury may have concluded that [the
plaintiff driver] suffered some painful inconvenience for a few days or
weeks after the accident, it may also have concluded that [the
plaintiff driver's] discomfort was the sort of transient rub of life for which
compensation is not warranted." kt at 726 (citing Boggavarapu v.
Ponist, 518 Pa. 162, l67, 542A.2d 516, 518 (Pa. 1988)).
In Davis, as relied upon by the Majczyk Court, the Pennsylvania
Supreme Court resolved two apparently competing lines of cases
regarding compensable injury by distinguishing the severity of the
15
plaintiffs' injuries in each line of coses.> Davis v. Mullen, 565 Pa. 386,
773 A.2d 764 (Pa. 2001 ); See also Majczyk, 789 A.2d at 722-723. The
plaintiff in Davis, a driver of a tractor trailer, filed suit against the driver
of a vehicle who fell asleep at the wheel and crossed the dividing line
to strike the plaintiff's truck head-on. Davis v. Mullen, 565 Pa. 386, 389,
773 A.2d 7 64, 7 65. During the trial, the plaintiff testified that he was
examined at the hospital and received pain medication, but, that he
returned to work the Monday after the accident, which occurred on
Friday. Id. About twenty days after the accident, the plaintiff sought
treatment from a chiropractor, but discontinued the sessions after
twenty visits.� The only issue for the Davis jury was damages, as the
defendant admitted liability, but disputed the extent of the plaintiff's
injury. kl The jury awarded the plaintiff compensation for his medical
3 As noted by the Majczyk Court. the Davis Court examined compensable injury in a slightly
different context. Majczyk, 789 A.2d at 722. In Davis. the Supreme Court addressed a situation
where a jury awarded the plaintiff compensation for medical expenses . .but failed to award any
damages for pain and suffering. Davis v. Mullen, 565 Pa. 386, 773 A.2d 764. The Court's decision
to uphold the jury award was based upon its analysis of what constitutes a compensable injury.
Id. Although the instant matter does not involve the exact situation where medical expenses
were awarded in the absence of compensation for pain and suffering, the Davis Court's holding
regarding compensable injury is relevant to a determination in this matter where the jury found
negligence was split 50/50 between the parties. but did not award damages for pain and
suffering. Like in Majczyk, the jury in this case found in favor of the defendants. awarding no
damages to Margaret Anthony for her alleged pain and suffering, thereby. demonstrating their
belief that any injuries suffered were not compensable. Because the Pennsylvania Superior Court
in Majczyk applied the Davis analysis of compensable injury to a similar situation where no
damages were awarded, it is directly applicable to the current matter. See Majczyk, 789 A.2d
717.
16
expenses and damaged personal property; however, they awarded
no money for pain and suffering. kl at 390, 7 66. Following the jury
verdict, the trial court denied the plaintiff's motion for new trial related
to the lack of award of damages for pain and suffering. Kt On appeal,
the Pennsylvania Superior Court reversed the trial court, finding that
the award was inconsistent with the evidence of record. kl
At the start of its Opinion affirming the trial court, the Davis Court
acknowledged that it must reconcile a line of cases where new trials
were granted for a jury's failure to award damages for pain and
suffering in addition to medical expenses with a line of cases
upholding jury verdicts that awarded compensation for medical
expenses in the absence of any award for pain and suffering. Id. at
391 , 7 66. First, the Davis Court described in detail the line of cases that
were overturned for failure to award damages for pain and suffering.
Id. at 391-392, 7 67. This first line of cases involved evidence of severe
injury with no compensation for pain and suffering. See id. at 392-393,
7 67-7 68. For example, the Davis Court reviewed cases involving injuries
to plaintiffs which included a woman suffering from a neck protrusion
that rendered her 30-40% disabled as a result of the vehicle in which
17
she was riding colliding with a utility poll; a woman who was rendered
unconscious and suffered a disfiguring scar from a car accident; and,
a woman who was hospitalized for 19 days and unable to work for 14
months as the result of a motor vehicle accident. kL at 391-393, 7 67-
7 68. The Davis Court explained the Pennsylvania Supreme Court's
decision to overturn such jury verdicts in this first line of cases as follows:
11
••• the plaintiffs' injuries were too severe for the trial courts to have had
a reasonable basis to believe that the juries I awards of medical
expenses, without compensation for pain and suffering was based on
any determination properly in province of the juries." Id. at 391-392,
767.
Next, the Davis Court considered the second line of cases where
the Pennsylvania Supreme Court " ... focused on the power of the jury
as the ultimate finder of fact and the need for the judiciary to guard
against usurping the role of the jury," concluding that" ... a jury award
of medical expenses without a corresponding award of damages for
pain and suffering, is not necessarily inconsistent." Id. at 393, 768. This
second line of cases involved the following circumstances: a plaintiff
who received a Band-Aid and two tetanus shots to treat a dog bite
18
wound while later complaining of sciatic nerve pain from the needle,
and a plaintiff who was the victim of the use of excessive force by a
police officer. kL at 394-995, 768-769. Having reconciled these two
lines of cases based on the severity of the injury and the jury's province
to determine whether an injury is compensable, the Davis Court
rejected any per se rule preventing a jury from compensating a
plaintiff for medical expenses in the absence of an award of
damages for pain and suffering. The Court explained, 11 [i]ndeed, the
existence of compensable pain is an issue of credibility and juries must
believe that plaintiffs suffered pain before they compensate for that
pain." kL at 396, 7 69 (internal citations omitted).
Notably, one case examined by the Davis Court in its second line
of cases involved circumstances similar to the instant matter. In
Boggavarapu v. Ponist, the Pennsylvania Supreme Court held that the
record was sufficient to support the jury's finding that the plaintiff did
not suffer compensable pain from a dog bite. Boggavarapu v. Ponist,
518 Pa. 162, 542 A.2d 516 (Pa. 1988). The plaintiff in Boggavarapu
brought suit against his neighbor for a dog bite which resulted in two
puncture wounds. kL at 165, 517. To treat the dog bite, the plaintiff
19
went to a local emergency room where he received two tetanus
shots and a Band-Aid. ls;L The plaintiff later alleged that the tetanus
needle pierced his sciatic nerve, causing continuing pain. � After
finding the defendants negligent, the jury awarded the plaintiff
damages for his medical expenses only, not for pain and suffering. kl
at 166, 518. The trial court in Boggavarapu granted the plaintiff a new
trial because the award did not include compensation for pain and
suffering. kt The Superior Court affirmed. Boggavarapu v. Ponist, 368
Pa. Super. 634, 531 A.2d 28 (Pa. Super. 1987).
The Pennsylvania Supreme Court reversed the Superior Court,
finding that, upon the evidence presented, the jury was free to
believe all, some, or none of the allegations related to the plaintiff's
pain and suffering. Boggavarapu, 518 Pa. 162, 168-169, 542 A.2d 516,
519. Although the Court acknowledged that there are certain injuries
which common experience tells us cause pain, it explained that, 11 [a]
jury is not compelled to believe that a dog bite or puncture by a
needle causes compensable pain." kt at 167, 518. Further, "(t] hey
may believe that it is a transient rub of life and living, a momentary
stab of fear and pain, or neither." kt Specifically, the Boggavarapu
20
Court clarified that the jury's award was related to the dog bite only,
not the needle. Ji;t at 168, 518. Because the plaintiff's allegations of
pain were related to the needle, rather than the bite, the jury was free
to hold that the dog bite was not a compensable injury. kl at 168,
518-519. While the jury was also free to find that pain accompanied
the dog bite, it was not required to do so and was able to reject any
subjective notions of pain. Id.Like Boggavarapu, the facts of the case currently before this
Court fit squarely within the Davis second line of cases where the jury's
decision not to award compensation for pain and suffering must be
upheld. See Davis v. Mullen, 565 Pa. 386, 393, 773 A.2d 764, 768 (Pa.
200 l). Although the jury found Appellees negligent and that their
negligence was a factual cause of the injury to Margaret Anthony,
they were free to find, based on the record, that the injury was not
compensable. The main factors which demonstrate that the zero
dollar award in the instant matter was wholly within the province of
the jury are that both injury and causation were disputed throughout
the trial, the allegations regarding pain and suffering were subjective,
and the injury itself was minor. First, while Pennsylvania Courts have
21
previously held that, where liability and injury likely to cause
compensable pain are conceded, it is against the weight of the
evidence to find for the defendant, in the current matter, neither
liability, nor injury associated with compensable pain were conceded.
See Majczyk v. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001 ). Throughout
the Trial, Appellees asserted that Margaret Anthony suffered a mere
scratch which was due to her own negligence in approaching the
vehicle and that the scratch was only a minor injury. See (4/11 /17
Answer Preclude Factual Cause; N.T., p. 57-59, 66, 71-73, 97, 100, 113.)
In fact, Appellees even suggested that Appellants' claim was
fabricated or exaggerated. See (N.T., p. 171.} This is simply not a
situation where Appellees accepted any sort of liability for a
compensable injury that would render the jury's verdict against the
weight of the evidence.
Second, there was no expert medical testimony in this case
about any pain suffered by Margaret Anthony.4 Indeed, all of the
4 Dr. Boonin's testimony at trial was solely as Margaret Anthony's treating physician and not as an
expert rendering any opinions relevant to this case. Dr. Boonin did not prepare an expert report,
was never admitted as an expert, and was testifying under subpoena. See (N.T., p. 69-84.)
Furthermore. Dr. Boonin provided no testimony related to Margaret Anthony's pain and suffering.
See (id.)
22
evidence regarding suffering by Margaret Anthony came from her
own testimony and that of her sister. It is black letter law that a jury is
free to believe all, part, some, or none of the evidence presented to
it. Majczyk, 789 A.2d 717, 726. The jury's ultimate finding in favor of the
defense indicates that it rejected this subjective testimony about
Margaret Anthony's alleged pain. Margaret Anthony testified that, as
a result of the dog bite, she had to go to an emergency visit with her
doctor and took Aleve to subdue the pain she experienced. (N.T., p.
89, l 00.} She also provided testimony regarding the effect the resulting
scar has on her life. {N.T., p. 91-92, 95-97 .} According to Margaret
Anthony, she now experiences nightmares, covers the scar in
embarrassment, and is unable to take walks outside because of other
people with dogs. (N.T., p. 91-92, 95-97.) Margaret Anthony's sister
added that she was in visible pain while cleaning the wound the day
after the incident. (N.T., p. 118-119 .)
Although the jury was free to reject this evidence outright with
nothing to dispute it, there was also contradictory evidence
presented that the jury apparently found credible. Lisa Rizzo
described the wound as a mere scratch that she was able to treat
23
Margaret Anthony during which he noted that the wound was
healing. (N.T., p. 73.) Dr. Boonin never referred Margaret Anthony to a
plastic surgeon, nor told her that she should stop working. (N.T., p. 97,
113.) In fact, the view of Margaret Anthony's scar at the Trial revealed
only a faint, small marking, not unlike the kind of faint scars or
blemishes most adults have on their bodies. (N.T., p. 94.) This case
stands in strong contrast to the first line of cases identified in Davis and
is most similar to the dog bite in Boggavarapu. See Davis, 565 Pa. 386,
391-392, 773 A.2d 764, 767; Boggavarapu v. Ponist, 518 Pa. 162, 542
A.2d 516 (Pa. 1988). Accordingly, the jury was free to hold that
Margaret Anthony's injury was nothing more than a transient rub of life
for which compensation was not warranted.
(END OF OPINION)
25