Smith v. Pulcinella

SAYLOR, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County entering judgment against Appellant, Michael Pulcinella (Pulcinella), on a jury verdict in favor of Appellee, Tandra Smith (Smith).

The trial judge, the Honorable Abraham J. Gafni, in a thoughtful and reasoned opinion, set forth the factual and procedural history of this case:

On November 10, 1987, Smith’s car was struck from the rear by a car driven by Pulcinella. After the accident, a police officer drove Smith’s car to the side of the road onto the left shoulder and placed Pulcinella’s car behind it. After the parties exchanged information, they reentered their respective cars about fifteen minutes later. As they sat in their cars, a third car struck Pulcinella’s car in the rear, forcing it into Smith’s car for the second time. The main injury allegedly sustained by Smith was a herniated disc in her lower back.

Smith attempted to sue Pulcinella in the same action as the driver and owner of the third car. However, the defendants named as responsible for the second collision were released from this suit when Smith’s attorney became aware that they were not the drivers of the second striking vehicle. Thus, Pulcinella is the only remaining defendant in this action.

Smith’s treating physician, Dr. Dennis Zaslow, was the only medical expert to testify at trial. He testified that Smith suffered significant injuries to her back. He also testified that he believed, to a reasonable degree of medical certainty, that Smith’s injuries were caused by the November 10, 1987, accidents. However, Dr. Zaslow acknowledged that he could not differentiate between injuries suffered in the first impact, which involved only Smith and Pulcinella, as opposed to those caused by the second impact.

Pulcinella moved for a non-suit at the conclusion of plaintiffs case, and for a directed verdict at the conclusion of the case. Pulcinella argued that as Smith had never asserted that Pulcinella was negligent in the second accident, he was not liable for any resultant injuries. Pulcinella concluded that since there was no evidence from which the jury could conclude that Smith’s injuries were caused by the first impact rather than the second, he could not be liable for any of Smith’s injuries.

This court denied Pulcinella’s motions for nonsuit and his motion for a directed verdict at the close of the evidence.

At trial, the Court determined, as a matter of law that the two impacts could be considered by the jury as a single accident (N.T. p. 317-8, 340), and asked the panel to consider Pulcinella’s liability without apportioning the damages between the two strikings by the automobile. The jury was advised that it could award damages to plaintiff only if it determined that defendant was negligent and that his negligence was a substantial factor contributing to plaintiffs injuries (N.T. p. 312). As a result, Pulcinella was held jointly and severally liable for Smith’s injuries.

Pulcinella filed a motion for a judgment notwithstanding the verdict which was denied by the trial court. This appeal followed.

In reviewing the denial of a judgment notwithstanding the verdict, “[w]e will reverse the lower court when we find an abuse of discretion or an error of law that controlled the outcome of the case.” Jones v. Constantino, 429 Pa.Super. 73, 80-81, 631 A.2d 1289, 1293 (1993), quoting Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). Judgment notwithstanding the verdict is appropriate only

in a clear case where no two reasonable minds could fail to agree that the verdict is improper. “[T]he 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.”

Jones, supra, 429 Pa.Super. at 80-81, 631 A.2d at 1293 (citations omitted).

While Pulcinella raises four issues on appeal, in essence Pulcinella contends that the trial court erred by determining as a matter of law that the two impacts could be considered as a single accident and that Pulcinella could be held liable for the entire amount of damages suffered by Smith without apportioning the damages as between the two impacts.

“[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.” Harka v. Nabati, 337 Pa.Super. 617, 622, 487 A.2d 432, 434 (1985) quoting Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982). In determining whether the harm to a plaintiff is capable of apportionment, that is, whether the defendants are separate or joint tortfeasors, 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.

Voyles v. Corwin, 295 Pa.Super. at 130-131, 441 A.2d at 383 (1982) and Harka v. Nabati, 337 Pa.Super. at 622, 487 A.2d at 434 (1985), both citing Prosser, Law of Torts, § 46 n. 2 (4th Ed.1971).

“If two or more causes combine to produce a single harm which is incapable of being divided on any logical, reasonable, or practical basis, and each cause is a substantial factor in bringing about the harm, an arbitrary apportionment should not be made.” Capone v. Donovan, 332 Pa.Super. 185, 189, 480 A.2d 1249, 1251 (1984), citing Restatement (Second) of Torts § 433A Comment i (1977) and Prosser, Law of Torts § 47 (1941). “Most personal injuries are by their very nature incapable of division.” Id.

“If the tortious conduct of two or more persons causes a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently.” Capone v. Donovan, 332 Pa.Super. at 189, 480 A.2d at 1251 (1984), citing Restatement (Second) of Torts § 879 (1977). Joint tortfeasors are:

“... two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.” 12 P.S. § 2082. In Black’s Law Dictionary, to be a joint tortfeasor, “the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.” 4th Ed. (1968) page 1661. A joint tort is defined as “where two or more persons owe to another the same duty and by their common neglect such other is injured ...” Id. at 973.

Lasprogata v. Qualls, 263 Pa.Super. 174, 179 n. 4, 397 A.2d 803, 805 n. 4 (1979).

Lasprogata v. Qualls, Voyles v. Corwin and Harka v. Nabati all involved the relationship between a tortfeasor originally causing an injury and a physician who subsequently aggravated or caused a new injury. In each instance the Superior Court held that the original tortfeasor and the physician were not joint tortfeasors, reasoning that “[t]he acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other’s acts, and each breaching a different duty owed to the injured plaintiff.” ' Lasprogata v. Qualls, 263 Pa.Super. at 179, 397 A.2d at 805. Thus, in each instance, it was also held that to the extent the acts of the original tortfeasor and those of the physician were capable of separation, the damages should be apportioned accordingly.

In a footnote in Lasprogata, the Superior Court cited the case of Shamey v. State Farm Mutual Insurance Company, 229 Pa.Super. 215, 331 A.2d 498 (1974). Shamey was an action for uninsured motorist coverage brought by the insureds, the Shameys, against the insurer, State Farm. The Shamey’s vehicle was stopped near the top of a snowy hill when a car driven by defendant McFarland skidded and struck the Shamey vehicle. Just as the Shamey vehicle came to a stop, it was struck by a third vehicle operated by an uninsured motorist, Osborn. Although Shamey involved the interpretation of a provision in a release signed by the insured following settlement of the uninsured motorist claim with State Farm, State Farm argued in passing that the fact situation indicated that there was only one accident. The Superior Court disagreed and observed that the facts indicated that there were two separate collisions by two allegedly negligent drivers, each of whom would be responsible only for the injuries caused by his negligence, notwithstanding that the apportionment of damages was difficult. The court, however, acknowledged that “the evidence produced at trial may indicate that McFarland’s negligence put the Shameys in a position of peril, whereupon Osborn, foreseeably, collided with them ...” citing Restatement (Second) of Torts § 433A, Comment c & Illustration 2, although it stated that such a determination could not properly be made in the context of a motion for summary judgment.

Instantly, at the close of the evidence the trial court, relying on the principles set forth above, concluded that Pulcinella and the driver of the second vehicle were joint tortfeasors whose actions united in causing a single injury to Smith and that, as a consequence, Pulcinella could be held liable for all of the injuries suffered by Smith without apportioning such injuries between the two impacts. The court reasoned that the drivers of both vehicles owed a common duty to Smith, that they acted negligently in a similar manner at virtually the same time and place, that it was Pulcinella’s vehicle that actually struck Smith’s vehicle twice, and that but for Pulcinella’s negligence, Smith’s vehicle would not have been off the road and in a position of peril.

Viewing the evidence as we must, in the light most favorable to Smith as the verdict winner, we find that the facts support the trial court’s determination that Smith’s injuries were not capable of apportionment as between Pulcinella and the driver of the second vehicle. Here, the duty of care owed by Pulcinella and the second driver to the other motorist, Smith, was identical and both were negligent in an identical fashion and at almost the same time and place in failing to control their cars in the rainy weather conditions. Additionally, the harm caused to Smith as a result of the drivers’ combined negligence was single and indivisible, the plaintiffs medical expert having testified that he was unable to differentiate between the injuries Smith sustained in the first impact and those caused by the second impact. Finally, 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.

Based upon the similarity of duty and negligence of the two drivers, the proximity of time and location, and the indivisibility of the injury, we hold that the trial court did not err by concluding that the two incidents could be considered as one accident and that Pulcinella’s liability should be considered without apportioning damages.

Order affirmed.

WIEAND, J., files a dissenting opinion.