Hennessy, P. v. Robertson, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICK L. HENNESSY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN ROBERTSON, JR., SHAWN
ROBERTSON, BRUCE REIKOW, RYAN
CARUSO, FRANK D. CARUSO, AND
ROSETTA L. CARUSO, H/W,
APPEAL OF: RYAN CARUSO,
Appellant No. 3353 EDA 2013
Appeal from the Judgment Entered November 21, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 4451 January Term, 2011
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 24, 2014
This negligence action arose from successive automobile accidents that
occurred minutes apart in the early morning hours of July 26, 2009. The
jury returned a $19 million-dollar verdict in favor of Patrick L. Hennessy and
against both Ryan Caruso and Shawn Robertson, Jr., finding them jointly
and severally liable for the above-the-knee amputation of Mr. Hennessy’s
right leg and other injuries. Mr. Caruso appeals and alleges that the trial
court erred in failing to apportion damages. He contends further that the
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*
Retired Senior Judge assigned to the Superior Court.
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court’s personal belief that the defendants were joint tortfeasors led to
erroneous evidentiary rulings, improper jury instructions, and a grossly
excessive verdict, which should have been remitted. After careful review,
we affirm.
At approximately 2:00 a.m. on the aforementioned date, Mr. Caruso
was driving his vehicle northbound on Roosevelt Boulevard in the City of
Philadelphia. Mr. Hennessy was seated in the front passenger seat.
Mr. Caruso rear-ended a vehicle driven by Bruce Reikow, which was stopped
at a red light, and both vehicles were disabled due to the collision. As
Mr. Hennessy and a passenger in the Reikow vehicle began to push the
Caruso vehicle to the shoulder of the road, a vehicle driven by Shawn
Robertson, Jr., also traveling northbound, struck the rear of Mr. Reikow’s
vehicle and careened into the left rear corner of Mr. Caruso’s vehicle,
crushing Mr. Hennessy’s right leg. After several weeks of medical treatment,
Mr. Hennessy underwent an above-the-knee amputation of that leg.1
Mr. Hennessy commenced this negligence action against Shawn
Robertson, Jr., Ryan Caruso, the owners of their vehicles, and Bruce Reikow.
He later voluntarily terminated the action against the vehicle owners, and
the trial court entered a non-suit in favor of Mr. Reikow. The jury returned a
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1
Mr. Hennessy filed a separate medical malpractice action against
physicians who treated him for injuries sustained in the motor vehicle
accidents, which was consolidated with this action. The medical malpractice
claims settled prior to trial.
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$19,145,904.17 verdict in favor of Mr. Hennessy and against Ryan Caruso
and Shawn Robertson, Jr., and attributed 45% of causal negligence to
Mr. Caruso and 55% to Mr. Robertson.2
Mr. Caruso filed a motion for post-trial relief seeking either judgment
notwithstanding the verdict (“n.o.v.”), a new trial, or a remittitur. The trial
court denied the motion, molded the verdict to include delay damages, and
entered judgment on the verdict on November 21, 2013. Mr. Caruso timely
appealed and the trial court issued an opinion in support of its denial of post-
trial relief.
Ryan Caruso presents ten issues on appeal:
1. Whether the Trial Court erred or abused its discretion in
failing to determine that damages were capable of
apportionment as between Defendant Ryan Caruso (“Caruso”)
and Defendant Shawn Robertson, Jr. (“Robertson”) so that
the jury could apportion damages between separate
tortfeasors, and whether Caruso is entitled to a new trial
based on the resulting prejudice?
2. Whether the Trial Court committed reversible error in
“allow[ing] the status of the two Defendants [Caruso and
Robertson] to be determined by the Jury,” and whether
Caruso is entitled to a new trial based on the resulting
prejudice?
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2
The amendments to the Pennsylvania Comparative Negligence Act, 42
Pa.C.S. § 7102, which effectively eliminated joint and several liability, were
not in effect when this action was commenced. The court instructed the jury
that, if it determined that Mr. Caruso and Mr. Robertson were both factual
causes of Mr. Hennessy’s injuries, it should allocate the percentages of
responsibility between the two tortfeasors. This allocation was only for
purposes of quantifying the defendants' respective contribution interests.
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3. Whether the Trial Court erred or abused its discretion in
allowing its personal belief that Caruso and Robertson were
joint tortfeasors to skew key evidentiary rulings, its
improvised jury instruction on causation and the jury verdict
slip against Caruso, and whether Caruso is entitled to a new
trial based on the resulting prejudice?
4. Whether the Trial Court erred or abused its discretion in
permitting an accident reconstruction expert to testify on
behalf of Plaintiff Patrick L. Hennessy (“Plaintiff”), and to
opine on the ultimate issue of causation, and whether Caruso
is entitled to a new trial based on the resulting prejudice?
5. Whether the Trial Court erred or abused its discretion in
excluding lay testimony regarding the speed of Robertson’s
vehicle at the time of the second accident that injured
Plaintiff, and in allowing testimony from Plaintiff’s expert that
rebutted the excluded testimony, thereby impeding Caruso’s
defense that Robertson was an intervening superseding cause
of Plaintiff’s injury, and whether Caruso is entitled to a new
trial based on the resulting prejudice?
6. Whether the Trial Court erred or abused its discretion in
failing to give Pennsylvania Standard Civil Jury Instruction
7.80, and in giving an improvised jury instruction on
causation, and whether Caruso is entitled to a new trial based
on the resulting prejudice?
7. Whether the Trial Court erred or abused its discretion in
failing to use the jury verdict slip proffered by Caruso, and in
using an improvised jury verdict slip, and whether Caruso is
entitled to a new trial based on the resulting prejudice?
8. Whether Caruso is entitled to judgment notwithstanding the
verdict or a new trial on the ground that liability was not
supported by the evidence and was against the clear weight
of the evidence?
9. Whether Caruso is entitled to a new trial on both liability and
damages?
10. Whether Caruso is entitled to remittitur due to the
excessiveness of the verdict?
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Appellant’s brief at 4-6.
The majority of Mr. Caruso’s claims implicate the trial court’s denial of
his motion for a new trial. The following principles govern our review of such
claims:
Consideration of all new trial claims is grounded firmly in the
harmless error doctrine "[which] underlies every decision to
grant or deny a new trial. A new trial is not warranted merely
because some irregularity occurred during the trial or another
trial judge would have ruled differently; the moving party must
demonstrate to the trial court that he or she has suffered
prejudice from the mistake." Harman ex rel. Harman v.
Borah, 562 Pa. 455, 756 A.2d 1116, 1122 (2000). Once the
trial court passes on the moving party's claim, the scope and
standard of appellate review coalesce in relation to the reasons
the trial court stated for the action it took. See id. Where the
court is presented with a finite set of reasons supporting or
opposing its disposition and the court limits its ruling by
reference to those same reasons, our scope of review is similarly
limited. See id. at 1123. Thus, "where the trial court
articulates a single mistake (or a finite set of mistakes), the
appellate court's review is limited in scope to the stated reason,
and the appellate court must review that reason under the
appropriate standard." Id. (quoting Morrison v. Com., Dept.
of Pub. Welfare, 538 Pa. 122, 646 A.2d 565, 571 (1994)).
Our standard of review prescribes the degree of scrutiny we
apply to the trial court's decision and the manner in which we
evaluate its conclusions. See id. at 1122 (citing Morrison, 646
A.2d at 570). If the trial court's challenged ruling was one of
law, we review its grant or denial of a new trial on that point to
discern if the court committed legal error. See id. at 1123.
Similarly, if the challenged ruling involved a discretionary act, we
review the disposition of the new trial motion relative to that act
for abuse of discretion. See id. "Discretion must be exercised
on the foundation of reason." Id.
Egan v. USI Mid-Atlantic, Inc., 92 A.3d 1, 11 (Pa.Super. 2014) (quoting
Rettger v. UPMC Shadyside, 991 A.2d 915, 923-24 (Pa.Super. 2010)).
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Mr. Caruso’s first and second issues are interrelated. He alleges first
that the trial court was obligated to rule on whether the damages were
capable of apportionment, and that its failure to do so was error. Second,
he contends that the court should have applied the factors delineated in
Neal v. Bavarian Motors, Inc., 882 A.2d 1022 (Pa.Super. 2005), and
found that apportionment was proper. Mr. Caruso points to undisputed
evidence that Mr. Hennessy was not injured in the first collision; the only
injury to Mr. Hennessy’s leg occurred during the second collision when
Mr. Robertson’s vehicle struck him as he was pushing the Caruso vehicle to
the berm. He contends that since the injuries from the first and second
collisions were divisible, the trial court should have apportioned the
damages. He further maintains that since the damages were capable of
apportionment, he and Mr. Robertson were separate tortfeasors, not joint
tortfeasors, and that he should not be subject to liability for the entire
verdict.3
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3
As this Court explained in Glomb v. Glomb, 530 A.2d 1362, 1365
(Pa.Super. 1987), “[i]mposition of joint and several liability enables the
injured party to satisfy an entire judgment against any one tort-feasor, even
if the wrongdoing of that tort-feasor contributed only a small part to the
harm inflicted. Apportionment of liability, on the other hand, limits the
liability of each tort-feasor to that portion of the harm which he or she
caused. Thus, if the court imposes joint and several liability, and if only one
of the joint tort-feasors is financially responsible, the injured party can
attempt to recover the full measure of damages against that single source.”
The law has changed. See footnote 2, supra.
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This Court has held that “[w]hether liability for harm to a plaintiff is
capable of apportionment is a question of law for the court, not a question of
fact for the jury.” Smith v. Pulcinella, 656 A.2d 494, 496-497 (Pa.Super.
1995) quoting Harka v. Nabati, 487 A.2d 432, 434 (Pa.Super. 1985) and
Voyles v. Corwin, 441 A.2d 381 (Pa.Super. 1982). In making that
determination, “courts consider several factors: the identity of a cause of
action against each of two or more defendants; the existence of a common
or like duty; whether the same evidence will support an action against each;
the single, indivisible nature of the injury to the plaintiffs; identity of the
facts as to time, place or result; whether the injury is direct and immediate,
rather than consequential; responsibility of the defendants for the same
injuria as distinguished from the same damnum.” Neal, supra at 1027(quoting Voyles, supra and citing Prosser, Law of Torts, § 46 n. 2 (4th ed.
1971)). “A court can direct the apportionment of liability among distinct
causes only when the injured party suffers distinct harms or when the court
is able to identify ‘a reasonable basis for determining the contribution of
each cause to a single harm.’” Restatement (Second) of Torts § 433A(1)
(1965). Glomb v. Glomb, 530 A.2d 1362, 1365 (Pa.Super. 1987).
Preliminarily, we find no support for Mr. Caruso’s claim that the trial
court abdicated its responsibility to rule on whether the damages were
capable of apportionment. At the charging conference, counsel for
Mr. Caruso asked the trial court to hold, as a matter of law, that the injuries
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from the first and second impacts were severable and capable of
apportionment. In support of his position, counsel stated that Mr. Caruso’s
negligence played no role in Mr. Hennessy’s presence on the scene where
Mr. Robertson struck him. N.T., 5/21/13, at 112. When the trial court
challenged the accuracy of that statement, counsel clarified that what he
meant was that Mr. Hennessy “was not injured in the first accident.” Id. at
113. He stated that the damages were severable because the first accident
did not cause the injury. Id. at 14. The trial court disagreed, stating that it
believed “the two drivers were joint tortfeasors[,]” id. at 121, and
questioned how defense counsel could dispute “that but for, without your
client’s negligence[,]” Mr. Hennessy would have sustained the amputation
injury. Id. at 140. The court subsequently rejected Mr. Caruso’s proposed
point for charge and verdict slip that would direct the jury to apportion the
damages. The trial court recognized that until the jury resolved the factual
causation issue, Mr. Caruso’s premise that there were two accidents
resulting in two distinct harms capable of apportionment was at issue.
Next, Mr. Caruso alleges that the trial court erred in denying
apportionment. He recites the Neal factors, which we identified in Voyles,
supra, and avers that their application would have favored apportionment
on the facts herein. He argues that the injuries “were readily divisible on a
logical, reasonable and practical basis because there were two separate
accidents separated not only by time and different actors, but also by their
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respective impacts on [Mr. Hennessy].” Appellant’s brief at 20. He directs
this Court’s attention to Embrey v. Borough of West Mifflin, 390 A.2d
765 (Pa.Super. 1978), Harka, supra, Smialek v. Chrysler Motors Corp.,
434 A.2d 1253 (Pa.Super. 1981), and Lasprogata v. Qualls, 397 A.2d 803(Pa.Super. 1979), where the harm was apportioned between the original
tortfeasors who caused injuries and the hospitals who negligently treated the
victims resulting in additional injuries.4
While Mr. Caruso suggests that application of the Neal factors favors
apportionment, we reach a contrary conclusion. In the instant case, the
negligent conduct of the two drivers was similar, identical duties were
violated, and the same evidence supported actions against both. The
negligent acts of Mr. Caruso and Mr. Robertson occurred in close temporal
proximity and in the same precise location. Although the collisions were five
minutes apart, the Robertson accident involved the vehicles disabled in the
Caruso collision that remained on the roadway. The injury was immediate
and one could reasonably find both actors responsible for that injury. But
for Mr. Caruso’s negligence, Mr. Hennessy would not have been pushing the
disabled vehicle to the shoulder in a location where he was vulnerable to
injury from oncoming motorists like Mr. Robertson.
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4
We note that, prior to trial, Mr. Caruso filed a motion in limine requesting
that the trial court rule, as a matter of law, that he was not a joint tortfeasor
with any of the other defendants, including the medical providers as well as
Mr. Robertson.
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Mr. Caruso persists in arguing that there were two separate accidents,
and, since Mr. Hennessy sustained no injury in the first accident and the
devastating leg injury occurred in the second accident, the injuries were
clearly divisible and apportionment was indicated. The fatal flaw in
Mr. Caruso’s position is that it is predicated on the incorrect assumption that
Mr. Caruso could not be liable for any consequences of his negligence
beyond the first collision. See Glomb, supra at 1367 (citing the
Restatement (Second) of Torts § 433A comment i for the proposition that, “a
court cannot direct apportionment between a party whose misconduct
facilitates the infliction of a harm and a party who actually inflicts that
harm.”). Mr. Caruso ignores the fact that the jury concluded that his
negligence was a factual cause of Mr. Hennessy’s leg injury. He does not
argue that the leg injury was capable of apportionment.
The cases relied upon by Mr. Caruso in support of apportionment are
inapposite as they involve tortfeasors who initially caused the injury and the
medical providers whose subsequent negligent treatment enhanced or
caused additional injuries. See e.g. Embrey, Harka, Smialek, and
Lasprogata, supra. We recognized in those cases that the defendants
were negligent in different ways and violated different duties. We held in
Lasprogata that the “tortfeasor originally causing an injury and a physician
who subsequently aggravates or causes a new injury are not joint
tortfeasors[,]” finding their acts “severable as to time, neither having the
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opportunity to guard against the other's acts, and each breaching a different
duty owed to the injured plaintiff.” Lasprogata, supra at 805.
The situation here is similar to the one in Smith v. Pulcinella, supra,which also involved successive motor vehicle accidents and where we held
that apportionment was improper. Smith's car was rear-ended by a car
driven by Pulcinella. A police officer drove Smith's car to the left shoulder
and placed Pulcinella's car behind it. The parties exchanged information and
re-entered their cars approximately fifteen minutes later. A third car struck
Pulcinella's car in the rear and forced it into Smith's car for the second time.
Smith attempted to sue the driver of the second car as well as
Pucinella, but apparently misidentified the driver, and the suit proceeded
solely against Pulcinella. At trial, Smith’s treating physician testified that
Smith’s injury, a herniated disc in her lower back, was a result of the
accidents. However, when the physician could not differentiate between
injuries suffered in the first impact and the second impact, Pulcinella moved
for a non-suit and then a directed verdict. Pulcinella argued that since Smith
had not specifically alleged that he was negligent in the second accident, he
was not liable for any injuries resulting from that accident. The trial court
denied the motions because it determined, as matter of law, that the two
impacts could be considered by the jury as a single accident. It directed the
jury not to apportion damages, but rather, to determine whether Pulcinella
was negligent and whether his negligence was a substantial factor in
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contributing to Smith’s injuries. In concluding that Pulcinella was negligent
and that his negligence was a substantial factor in causing Smith’s back
injury, the jury held Pulcinella jointly and severally liable for Smith's injuries.
On appeal, Pulcinella alleged that the trial court erred in refusing to
apportion damages between the two accidents. We held that the facts
supported the trial court's determination that Smith's injuries were not
capable of apportionment as between Pulcinella and the driver of the second
vehicle. Both drivers owed Smith the same duty of care, were negligent in
the identical fashion, the accidents were close in time and place, and the
harm as a result of the combined negligence was indivisible. We concluded
that, “but for Pulcinella's negligence, Smith would not have been along the
shoulder of the road in a location where she was susceptible to being struck
a second time.” Smith, supra at 498. We relied upon Lasprogata and
distinguished the very same cases Mr. Caruso relies upon here.
Here, as in Smith, Mr. Caruso sought to limit his potential liability for
damages as a result of injuries sustained in the first collision. The trial court
correctly recognized that Mr. Caruso was subject to liability for damages for
the leg injury suffered in the Robertson collision if the jury determined that
his negligence was a factual cause of that injury. Resolution of the causation
issue would determine the extent of Mr. Caruso’s liability and whether he
was a separate tortfeasor.
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Finally, in support of apportionment, Mr. Caruso argues that it can be
inferred from eyewitness testimony that it was not foreseeable that
Mr. Robertson would “come barreling down the highway at a high rate of
speed without at least trying to stop” where he had an unobstructed view
and the vehicles had on their emergency flashers. Appellant’s brief at 27.
He relies upon Shamey v. State Farm Mut. Auto. Ins. Co., 331 A.2d 498(Pa.Super. 1974), for the proposition that where the second accident was
unforeseeable, damages are capable of apportionment, and he and Mr.
Robertson were not joint tortfeasors.5
Mr. Caruso’s argument is one of superseding and intervening
causation. He claims that the conduct of Mr. Robertson was so
extraordinary and unanticipated that it relieves Mr. Caruso of liability for
injuries sustained in the second collision. The jury, however, rejected that
position in concluding that Mr. Caruso was a factual cause of the injury.
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5
The underlying facts in Shamey v. State Farm Mut. Auto. Ins. Co., 331
A.2d 498 (Pa.Super. 1974), involved successive motor vehicle accidents.
The issue before us was whether the trial court properly entered summary
judgment in favor of the uninsured motorist carrier based on the
interpretation of a provision in a release requiring the insured to seek the
insurer’s consent prior to settling any claims with anyone legally liable. We
reversed the grant of summary judgment, finding “the interpretation
suggested by the Shameys to be at least equally reasonable as that
proffered by State Farm.” Id. at 502. We also noted the potential for
genuine issues of fact if the evidence adduced at trial indicated that the first
tortfeasor’s negligence put the Shameys in a position of peril, thus
subjecting him to liability. We fail to see how this legal authority supports
Mr. Caruso’s position herein.
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Mr. Caruso’s negligent conduct was “an actual, real factor in causing the
harm.” See Pa.SSJI (Civ.) 13.20. Furthermore, in proffering this argument,
Mr. Caruso unwittingly conceded that causation was determinative of
whether apportionment was possible, thus undermining his criticism that the
trial court improperly conflated causation and apportionment. See
Appellant’s brief at 21. We find no error in the trial court’s rejection of
apportionment on the facts.
Mr. Caruso’s third, fourth, fifth, and sixth issues have a common
theme. He contends that a new trial is warranted as the trial court failed to
remain impartial, and that it permitted its personal belief that Mr. Caruso
and Mr. Robertson were joint tortfeasors to color its evidentiary rulings, the
jury charge, and the verdict slip. In support of his position, he points to the
trial court’s statements at the charging conference that it believed the
defendants were joint tortfeasors. Additionally, Mr. Caruso contends that,
by instructing the jury how to allocate negligence in the event it would find
that Mr. Caruso and Mr. Robertson were both factual causes of
Mr. Hennessy’s injury, the trial court permitted its personal beliefs to
influence the jury. Mr. Hennessy counters that the court’s expressions of
personal belief were uttered outside the presence of the jury. Furthermore,
he maintains there was no prejudice since apportionment would have been
improper regardless. Glomb, supra at 1367 n.4.
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After a thorough review of the record, we find no support for
Mr. Caruso’s general premise that the trial court was biased in the manner in
which it ruled on the admissibility of evidence or conducted the trial, or that
it permitted its personal beliefs to improperly influence the jury. We will
examine Mr. Caruso’s claims seriatim.
Prior to trial, the court denied Mr. Caruso’s motion in limine seeking to
preclude Mr. Hennessy from introducing the expert testimony of accident
reconstruction expert, Steven M. Schorr. Mr. Caruso contends that this
ruling constituted error or an abuse of discretion and was severely
prejudicial. He alleges that the jury was capable of understanding the facts,
which were not in dispute, and drawing its own conclusions about the
responsibility of the various parties; thus, expert testimony was
unnecessary. He maintains that the court abused its discretion in permitting
Mr. Schorr to opine, over objection, that the conduct of both Mr. Caruso and
Mr. Robertson were substantial contributing factors in the collision that
resulted in the injury, even though he concedes that an expert is permitted
to render an opinion on the ultimate issue.
Mr. Hennessy points out that he bore the burden of proving negligence
generally, and, causation specifically, and expert testimony was admissible
for that purpose. He argues that the expert’s reconstruction of the accident
assisted the jury in understanding the sequence of the collisions, which
arguably had a bearing on causation. Furthermore, the expert testimony
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was not objectionable simply because it embraced the ultimate issue. See
Pa.R.E. 704.
We note that, “[a]dmissibility of expert testimony is left to the sound
discretion of the trial court, and as such, this Court will not reverse the trial
court's decision absent an abuse of discretion.” Snizavich v. Rohm &
Haas Co., 83 A.3d 191, 194 (Pa.Super. 2013); see also Grady v. Frito-
Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003). “An abuse of discretion may
not be found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous.” Id.Rule 702 of the Pennsylvania Rules of Evidence provides:
If scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training or education may testify thereto in the form of an
opinion or otherwise.
Moreover, Pennsylvania law permits expert opinion testimony on the
ultimate issue. McManamon v. Washko, 906 A.2d 1259, 1278 (Pa.Super.
2006); Pa.R.E. 704.6 The trial judge has discretion to admit or exclude
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6
Pa.R.E. 704.- Opinion on ultimate issue
(Footnote Continued Next Page)
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expert opinions on the ultimate issue depending on the helpfulness of the
testimony versus its potential to cause confusion or prejudice. In
McManamon, this Court found nothing improper in permitting a defense
expert on accident reconstruction to testify as to the cause of the accident.
We find no abuse of discretion in the admission of Mr. Schorr’s expert
reconstruction testimony. The testimony assisted the jury in understanding
the sequence of the accidents and the mechanism of injury. Furthermore,
the expert’s opinion regarding the ultimate issue of causation was
permissible. Mr. Hennessy bore the burden of proving negligence,
specifically that the negligence of both Mr. Caruso as well as Mr. Robertson
was the factual cause of his above-the-knee amputation. Since causation
was disputed, the testimony was probative.
Mr. Caruso next contends that the trial court abused its discretion in
sustaining an objection to Mr. Reikow’s testimony that the Robertson car
was traveling at a speed of fifty to sixty miles per hour. He argues that the
ruling illustrates the trial court’s bias, and further that it prejudiced him
because it “impeded his attempt to establish that . . . Robertson’s conduct
was an intervening superseding cause” of Mr. Hennessy’s injuries.
Appellant’s brief at 42.
_______________________
(Footnote Continued)
Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.
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In order for a layperson to render an opinion as to the speed of a
vehicle, the witness must have experience with moving vehicles and an
adequate opportunity to observe. See Fisher v. Central Cab Co., 945 A.2d
215 (Pa.Super. 2008). It was the latter requirement that the trial court
found wanting. Mr. Reikow testified that he was standing in the doorway to
his car when the Robertson vehicle collided with his car. The trial court
found no foundational testimony establishing that Mr. Reikow was standing
at a vantage point to view and estimate the speed of the Robertson vehicle.
We find no abuse of discretion. In addition, we find that since Mr. Reikow
opined that the Robertson vehicle was traveling at a high rate of speed, any
alleged error is harmless.
Mr. Caruso also contends that by permitting Mr. Schorr to testify that
Mr. Robertson was not going fifty to sixty miles per hour, after instructing
the jury to disregard Mr. Reikow’s estimate of the speed of that vehicle, the
trial court implied that the expert was more credible than the lay witnesses.
Mr. Caruso misrepresents the record. The trial court did not permit the
expert to testify as to speed; defense counsel elicited Mr. Schorr’s opinion as
to the speed of the Robertson vehicle on cross-examination. Counsel asked
the expert to agree that the Robertson vehicle was traveling at a high rate of
speed. Mr. Schorr declined to opine as to the exact speed of the Robertson
vehicle, but he maintained that since the vehicle only moved fifteen to
twenty feet after impact, “there is no way they were going 60 to 70 miles an
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hour – 50 or 60 miles an hour.” N.T., 5/20/12, at 143. Since there was no
objection or motion to strike this testimony, the court did not rule on its
propriety, and any alleged error in its admission is waived. Obviously, since
the court did not rule on the admissibility of this evidence, any allegation of
partiality wholly lacks merit.7
Next, Mr. Caruso alleges that the jury charge and the verdict slip were
skewed against him and reflected the trial court’s bias. Mr. Caruso proposed
that the jury be instructed in accordance with Pa.SSJI (Civ.) 7.80, which
describes the apportionment of damages where two or more defendants
cause distinct damages.8 He also requested a charge on concurring causes
where it is uncertain whose negligent conduct caused the harm in conformity
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7
The trial court also instructed the jury that it did not have to accept an
expert’s opinion merely because he was an expert. N.T., 5/22/13, at 106.
8
Pa.SSJI (Civ.) 7.80 * APPORTIONMENT OF DAMAGES (TWO OR MORE
DEFENDANTS)--DISTINCT DAMAGES
The plaintiff claims that each of the defendants' negligence has
contributed to [his] [her] damages. As I have told you, in order
to recover in this case against one or more of the defendants,
you must find that the conduct of the defendant whom you have
found negligent was a factual cause in bringing about the
plaintiff's damages. If you find that a defendant caused distinct
damages from those of another defendant, you must decide
what percentage of the plaintiff's damages was caused by that
defendant's negligence. The verdict slip will have a space in
which you can write in the percentage figures.
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with Pa.SSJI (Civ.) 13.160.9 See Defendant Caruso’s Revised Points for
Charge, 5/21/13, at unnumbered 3. The trial court refused the
apportionment charge and agreed with Mr. Hennessy’s counsel that the
second proposed charge was improper on the facts of this case. The trial
court instructed the jury on factual cause in accordance with Pa.SSJI (Civ.)
13.20.10 Then, it informed the jury:
____________________________________________
9
Pa.SSJI (Civ.) 13.160 * CONCURRING CAUSES--ISOLATION OF SOLE
CAUSE AMONG MULTIPLE ACTORS
Sometimes two or more people are negligent, but only one
person's negligent conduct factually caused the plaintiff's [harm]
[injury] [damage] and it is uncertain which person caused the
[harm] [injury] [damage].
Under such circumstances each negligent [person] [defendant]
has the burden of proving that he or she did not factually cause
the plaintiff's [harm] [injury] [damage].
10
Pa.SSJI (Civ.) 13.20 – FACTUAL CAUSE
In order for [name of plaintiff] to recover in this case, [name of
defendant]'s [negligent] [grossly negligent] [reckless] conduct
must have been a factual cause in bringing about 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, [name of defendant]'s conduct need not
be the only factual cause. The fact that some other causes
concur with [name of defendant]'s negligence in producing an
injury does not relieve [name of defendant] from liability as long
as [his] [her] own negligence is a factual cause of the injury.
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Members of the jury, the defendant Ryan Caruso contends
in this matter that although he is negligent for rear-ending the
vehicle operated by Bruce Reikow, he is not liable for the injuries
suffered by the plaintiff Patrick L. Hennessy because he did not
cause the specific harm suffered by Mr. Hennessy. That is
Mr. Hennessy’s contention.
Mr. Caruso argues that Mr. Hennessy’s leg amputation was
caused by factors set in motion by the negligence of defendant
Shawn Robertson when he rear-ended Mr. Reikow’s vehicle in a
separate collision sometime after the initial collision.
For purposes of this case, however, jurors, you are
allowed, although not required, to consider the events that
unfolded on the night of July 26, 2009 to constitute one single
accident.
The law in Pennsylvania is that if two or more causes
combine to produce a single harm[,] which is incapable of being
divided on any logical reasonable or practicable basis and each
cause is a factual cause in bringing about harm an arbitrary
apportionment should not be made.
N.T., 5/22/13, at 104-05.
Mr. Caruso objects to the court’s use of the terms “argues” and
“contends” in describing his position. Furthermore, he claims that the latter
instruction had the effect of steering the jury away from finding two
separate accidents.
Our standard of review when considering the adequacy of jury
instructions in a civil case is to "determine whether the trial
court committed a clear abuse of discretion or error of law
controlling the outcome of the case." Stewart v. Motts, 539
Pa. 596, 654 A.2d 535 (1995). It is only 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" that error in a
charge will be found to be a sufficient basis for the award of a
new trial. Id. at 540; Ferrer v. Trustees of University of
Pennsylvania, 573 Pa. 310, 345, 825 A.2d 591, 612 (2002);
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see also Tindall v. Friedman, 2009 PA Super 50, 970 A.2d
1159, 1175 (Pa. Super. 2009).
Pringle v. Rapaport, 980 A.2d 159, 165 (Pa.Super. 2009). A trial judge
has “wide latitude instructing a jury,” Hatwood v. Hospital of the
University of Pennsylvania, 55 A.3d 1229 (Pa.Super. 2012), and “may
use any particular language, as long as the words sufficiently and fully
convey the rules of law applicable to the case.” Bailey v. Pennsylvania
Elec. Co., 598 A.2d 41, 49 (Pa.Super. 1991).
We find no reversible error in the court’s charge to the jury. The
instructions adequately apprised the jury of the relevant law on causation.
The fact that the trial court spoke in terms of Mr. Caruso’s “contentions” and
“arguments” was not prejudicial. Many of the suggested standard jury
instructions use identical language, including Pa.SSJI (Civ.) 7.80, the charge
requested by Mr. Caruso. See also e.g. Pa.SSJI (Civ.) 13.00. The court’s
instruction that the jury could view the events as one rather than two
accidents merely permitted the jury to find that two causes combined to
produce one harm.
Mr. Caruso also complains that there were errors in the verdict slip.
Specifically, he points to the use of the plural possessive “defendants’” in
Question 2, and avers that it impermissibly suggested to the jury that it
should find both defendants to be factual causes. N.T., 5/22/13, at 3. He
also contends that a new trial is necessary because the verdict slip had no
place to designate which of the defendants were negligent.
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The trial court tendered its proposed verdict slip to counsel for both
parties and invited their comments. Mr. Caruso raised no objection to what
was likely a typographical error in the word “defendants’” in Question 2. Nor
did he object to the absence of a place to indicate that Mr. Caruso was not
negligent. In fact, counsel stated on the record that he had no objection to
the final verdict slip. N.T., 5/22/12, at 3. Since Mr. Caruso did not object to
the verdict slip on the grounds raised herein, we agree with Mr. Hennessy
that these objections are waived. See Pa.R.C.P. 227.1(b)(1) and (2) (issues
are waived for purposes of post-trial relief unless the issue was specifically
raised during pre-trial or trial proceedings).
Even if we did not find the claims waived, they offer no basis for relief.
Since Mr. Caruso admitted he was negligent, that issue was not before the
jury. Question 1 on the verdict slip asked, “Do you find that any of the
defendants were negligent?” Prior to submitting the verdict slip to the jury,
the trial court placed “Xs” on the separate lines indicating “Yes” for
Mr. Caruso and “Yes” for Mr. Robertson. Question 2 directed the jury to
determine for each defendant whether “the defendants’ negligence” was a
factual cause in bringing about Mr. Hennessy’s injuries. While use of the
singular possessive “defendant’s” may have been preferable to the plural
possessive, we find any error in this regard to be harmless. The jury was
still required to make a specific determination as to whether Mr. Caruso’s
“negligence was a factual cause in bringing about Patrick Hennessy’s
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injuries.” Verdict Slip, Question 2. The jury responded affirmatively to the
question.
Next, Mr. Caruso claims that the trial court erred in refusing to grant
judgment n.o.v. where the jury’s verdict was contrary to law regarding
separate tortfeasors and the verdict was contrary to facts that “indisputably
showed” that Mr. Hennessy sustained his injuries in the Robertson accident
“which occurred five minutes later as a result of Robertson’s extraordinary
and unforeseeable conduct.” Appellant’s brief at 50.
In reviewing such a motion,
"the evidence must be considered in the light most favorable to
the verdict winner, and he must be given the benefit of every
reasonable inference of fact arising therefrom, and any conflict in
the evidence must be resolved in his favor." Broxie v.
Household Finance Company, 472 Pa. 373, 380, 372 A.2d
741, 745 (1977). See also, Metts v. Griglak, 438 Pa. 392,
264 A.2d 684 (1970) and Gonzalez v. United States Steel
Corp., 484 Pa. 277, 398 A.2d 1378 (1979). Moreover, a
judgment n.o.v. should only be entered in a clear case and any
doubts must be resolved in favor of the verdict winner. See
Atkins v. Urban Redevelopment Authority of Pittsburgh,
489 Pa. 344, 414 A.2d 100 (1980) and Steward v. Chernicky,
439 Pa. 43, 266 A.2d 259 (1970). Further, "a judge's
appraisement of evidence is not to be based on how he would
have voted had he been a member of the jury, but on the facts
as they come through the sieve of the jury's deliberations."
Brown v. Shirks Motor Express, 393 Pa. 367, 375, 143 A.2d
374, 379 (1958).
There are two bases upon which a judgment n.o.v. can be
entered: one, the movant is entitled to judgment as a matter of
law, Tremaine v. H.K. Mulford Co., 317 Pa. 97, 176 A. 212(1935), 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, Cummings v. Nazareth
Borough, 427 Pa. 14, 233 A.2d 874 (1967). With the first a
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court reviews the record and concludes that even 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 that the evidence
was such that a verdict for the movant was beyond
peradventure.
Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992).
This issue is nothing more than a rehashing of Mr. Caruso’s contention
that the imposition of joint and several liability was contrary to law. Despite
the fact that Mr. Hennessy was not injured in the Caruso accident, the jury
was permitted to find that Mr. Caruso’s negligence was a factual cause of
Mr. Hennessy’s leg injury. That the second impact occurred five minutes
later did not sever the negligence of Mr. Caruso from that of Mr. Robertson
as a matter of law. Nor do we find Mr. Robertson’s negligence to be so
extraordinary and unforeseeable as to relieve Mr. Caruso of liability as in
Grainy v. Campbell, 425 A.2d 379 (Pa. 1981) (truck driver’s awareness of
potential danger to boy scouts on the road created by contractor and gas
company’s obstruction of the berm relieved contractor and gas company of
liability for negligence when the driver struck one of the scouts); see
Restatement (Second) of Torts § 447. Since it was undisputed that
Mr. Robertson did not slow down, it is reasonable to infer that he was
unaware of or could not see the disabled vehicles in the road. A jury could
reasonably find the second impact to be a normal consequence of the
perilous situation created by Mr. Caruso’s negligence.
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Finally, Mr. Caruso’s contention that the verdict is not supported by
the evidence is refuted by the record. The jury obviously rejected
Mr. Caruso’s position that Mr. Robertson was the only person responsible for
Mr. Hennessy’s injury. Judgment n.o.v. was properly denied.
Mr. Caruso claims that a new trial is warranted as the verdict was
against the weight of the evidence. He alleges that, “it is unjust that the
jury would find against Caruso as a joint tortfeasor when Plaintiff admitted
that he was not injured at all in the Caruso accident.” Appellant’s brief at
51. Furthermore, he baldly argues that the jury’s assignment of 45% causal
negligence to Mr. Caruso “is entirely inconsistent and disproportionate with
the facts and can only be attributed to the Trial Court’s errors.” Id. We find
no merit in either contention. The jury could reasonably find that
Mr. Caruso’s negligence placed Mr. Hennessy at risk for the very injury
inflicted by Mr. Robertson. No new trial is warranted on this ground.
Finally, Mr. Caruso contends that the verdict is excessive and that the
trial court abused its discretion in refusing his request for remittitur. He
blames erroneous evidentiary rulings, jury instructions, and the verdict slip
for contributing to the excessive $15 million award for pain and suffering.
He argues further that the award was likely the result of “partiality,
prejudice, mistake or corruption,” or “arbitrary, speculative, or punitive,”
given the size of verdicts involving more catastrophic injuries. He avers that
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the jury “undoubtedly sympathized with the hardships and complications
that accompany the loss of a limb.” Id. at 54.
The trial court has broad discretion in deciding whether to reduce a
jury verdict. “Our standard of review in considering the reversal of a trial
court's order denying a remittitur is to determine whether the trial court
abused its discretion or committed an error of law in reaching such
decision.” Paliometros v. Loyola, 932 A.2d 128, 134 (Pa.Super. 2007);
see also Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410 (Pa.Super.
2004). Remittitur is proper when “the verdict so shocks the sense of justice
as to suggest the jury was influenced by partiality, prejudice, mistake, or
corruption.” Haines v. Raven Arms, 640 A.2d 367, 369 (Pa. 1994).
“We begin with the premise that large verdicts are not necessarily
excessive verdicts. Each case is unique and dependent on its own special
circumstances and a court should apply only those factors which it finds to
be relevant in determining whether or not the verdict is excessive.”
Paliometros, supra at 134-35. The court may consider the following
factors in making that determination:
(1) the severity of the injury; (2) whether the Plaintiff's injury is
manifested by objective physical evidence or whether it is only
revealed by the subjective testimony of the Plaintiff (and, herein,
the court pointed out that where the injury is manifested by
broken bones, disfigurement, loss of consciousness, or other
objective evidence, the courts have counted this in favor of
sustaining a verdict); (3) whether the injury will affect the
Plaintiff permanently; (4) whether the Plaintiff can continue with
his or her employment; (5) the size of the Plaintiff's out-of-
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pocket expenses; and (6) the amount Plaintiff demanded in the
original complaint.
Paliometros, supra at 134-135 (quoting Mineo v. Tancini, 502 A.2d
1300, 1305 (Pa.Super. 1986)).
The trial court characterized Mr. Hennessy’s injury as extremely
painful, permanent, and one that “will almost certainly cause complications
in the future.” Trial Court Opinion, 4/10/14, at 16-17. In light of
Mr. Hennessy’s life expectancy of more than forty years, the court concluded
that the verdict “simply was not excessive.” Id. at 16.
Since we have concluded that there is no evidence of trial court bias or
error in the trial court’s evidentiary rulings, jury instructions, and refusal to
apportion damages, we find no support for Mr. Caruso’s contention that the
trial court’s failings fueled the large compensatory damage award.
Furthermore, while the award is very high, we note that Mr. Hennessy’s
stipulated past and future medical and personal care bills are also very high,
totaling $4,145,904.17. Mr. Caruso did not dispute the economic damages.
Dr. George A. Knod testified regarding the multiple fractures of the
right tibia, large wounds, a degloving injury to that lower leg, a ruptured and
torn Achilles tendon, and a foot drop injury. N.T., 5/21/13, at 20-21. In
addition, Mr. Hennessy sustained significant injuries to his left leg. His
anterior cruciate ligament in his left knee was completely ruptured, he had
bleeding in his left thigh and internal bleeding throughout the pelvis. Id.
Mr. Hennessy endured multiple surgeries for the fractures and ACL injury,
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debridement, and surgery for a blood clot in his left leg. The amputation
occurred on August 24, 2009.
The amputation injury is permanent, manifested by objective physical
evidence, and very serious. Dr. Knod testified without challenge that, “Once
you lose the knee joint, you lose function. You lose all functionality to walk
and, in fact, it is easier to walk with two below-the-knee prostheses than
just one above-knee prosthesis.” Id. at 33. Mr. Hennessy’s personal
experience only confirmed the expert’s prediction. At the time of trial, he
was already on this third prosthesis and he could not wear it for more than a
few hours. Dr. Knod explained that Mr. Hennessy continued to have
difficulty with the fit of the prosthesis. With activity, he could only tolerate it
for twenty to thirty minutes. Id. at 35. The physician stated that
Mr. Hennessy would have to use a wheelchair on a daily basis for prolonged
mobility. Id. at 36. He suffered phantom pain in the missing limb and his
forced reliance upon crutches was causing overuse injuries to his back,
shoulder, arms, and left knee. Generally, the evidence confirmed that a
young man like Mr. Hennessy with a normal life expectancy would find
himself increasingly dependent on others for personal care as he
prematurely aged.
Mr. Hennessy described the embarrassment and humiliation he
endures due to the disfigurement. People look at him differently, and “[t]hat
bothers me.” Id. at 87. He told the jury he “would love to be able to play
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golf again.” Id. at 91. He used to play sports for recreation with friends
and expressed hope that the issues with his prosthesis would be resolved so
that he could resume those activities. Id. at 90. Given the aforementioned
evidence, we find no abuse of discretion on the part of the trial court in
denying the remittitur.
Judgment affirmed.
Judge Ott joins the Memorandum.
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2014
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