Amadou, K. v. Sarver, R.

J-A23017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KERIM AMADOU, AN INDIVIDUAL, IN THE SUPERIOR COURT OF
SHAMAEL RAHAMANI, A MINOR PENNSYLVANIA
INDIVIDUAL AND SHAKIB RAHAMANI, A
MINOR INDIVIDUAL
Appellants
v.
RONALD SARVER
Appellee No. 1683 WDA 2015
Appeal from the Judgment Entered September 25, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No: GD 12-11773
BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:
FILED MARCH 07, 2017
I agree with the Majority’s conclusion that Appellants are not entitled
to a new trial based on the trial court’s refusal to instruct the jury pursuant
to 75 Pa.C.S.A. § 4581(e), relating to seat belt use. I also agree with the
Majority’s determination that Appellants, Shamael Rahamani and Shakib
Rahamani, are not entitled a new trial on damages. However, I disagree
with the Majority’s decision to award a new trial on damages to Appellant,
Kerim Amadou (“Amadou”). Therefore, I concur in part and dissent in part.
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*
Retired Senior Judge assigned to the Superior Court.
J-A23017-16
On September 3, 2011, Amadou was stopped at an intersection in
Pittsburgh when his Nissan Altima was struck from behind by a pick-up truck
operated by Appellee Ronald Sarver (“Sarver”). Sarver admitted liability.
On January 13, 2014, a jury found Sarver’s negligence was the factual cause
in bringing about injury to Amadou and awarded Amadou $1,440 in
damages.1 This damage award did not distinguish between economic and
non-economic damages.
As this Court reiterated in Brown v. Trinidad, 111 A.3d 765 (Pa.
Super. 2015);
Appellate review of a weight claim is a review of the trial court’s
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
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1
Amadou testified that he missed 13 days of work as an independent
contractor cab driver following the accident, N.T., 1/10/14, at 60, and on
average earned approximately $120 to $150 per day. N.T., 1/10/14, at 74-
75. During closing argument, Amadou’s counsel suggested to the jury that
Amadou might have missed only 12 days of work and proposed that the jury
consider 12 days of work missed at $120 per day. N.T., 1/13/14, at 254-55.
Although the jury did not designate its damages award as an award of lost
wages, it is not lost on us that 12 days at $120 per day results in a wage
loss of $1,440. Neverthless, it is not this Court’s role to speculate as to
whether the jury awarded Amadou wage loss, whether the jury entered into
a compromise verdict and settled on that amount as a compromise, or
whether the jury simply did not believe Amadou was injured or experienced
pain and suffering.
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that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of
justice.
Id. at 770 (quoting Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014), in
turn quoting In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013)
(en banc) (additional citations omitted)). In Brown, this Court further
quoted Haan, noting:
“The factfinder is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.”
Samuel–Bassett v. Kia Motors Am., Inc. [613 Pa. 371], 34
A.3d 1, 39 (Pa. 2011). “The trial court may award a judgment
notwithstanding the verdict or a new trial only when the jury’s
verdict is so contrary to the evidence as to shock one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of
discretion.” Id. (citing Commonwealth v. Cousar [593 Pa.
204], 928 A.2d 1025, 1035–36 (Pa. 2007)). When a fact
finder’s verdict is “so opposed to the demonstrative facts that
looking at the verdict, the mind stands baffled, the intellect
searches in vain for cause and effect, and reason rebels against
the bizarre and erratic conclusion, it can be said that the verdict
is shocking.” Farelli v. Marko [349 Pa. Super. 102], 502 A.2d
1293, 1295 (Pa. Super. 1985) (quoting Green v. Johnson [424
Pa. 296], 227 A.2d 644, 645 (Pa. 1967)).
Id.The trial court acknowledged Amadou’s contention that the verdict was
“manifestly inadequate” because “the verdict amount merely replicated
Amadou’s out-of-pocket expense,” reflecting the jury’s disregard of
Amadou’s “proof of pain and suffering.” Trial Court Rule 1925(a) Opinion
(“T.C.O.”), 7/17/14, at 3. The trial court rejected Amadou’s reliance on
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Marsh v. Hanley, 856 A.2d 138 (Pa. Super. 2004), in which this Court
reversed the trial court’s denial of a new trial following a jury verdict
awarding lost wages but no damages for pain and suffering. In Marsh, the
appellant’s car was struck on the driver’s side by another car, causing the
appellant’s car to spin 180 degrees before being struck a second time.
There, the appellant was taken to the hospital by ambulance for treatment.
Both parties’ experts conceded that the appellant suffered soft tissue injuries
of the cervical and lumbar spine in the accident. The trial court found the
instant factual situation more analogous to Majczyk v. Oesch, 789 A.2d
717 (Pa. Super. 2001) (en banc), where this Court upheld a jury award of
zero dollars for pain and suffering. Quoting this Court’s opinion in Marsh,
the trial court recognized:
The Majczyk Court specifically held that the jury may find for
the defendant despite his obvious negligence when it does not
believe the plaintiff’s pain and suffering, or that her injury is the
sort that is compensable. The Court quoted from Boggavarapu
v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988), for the
proposition that some injuries are the sort of “transient rub of
life for which compensation is not warranted.” The [C]ourt first
held that “the determination of what is a compensable injury is
uniquely within the purview of the jury.” Majczyk, supra at
726. The [C]ourt confirmed that credibility determinations lie
within the province of the fact finder, and a jury is always free to
believe all, part, some or none of the evidence presented.
Majczyk, supra at 725-26. The [C]ourt concluded that, based
on this record, the jury properly found that plaintiff’s accident-
related injuries were minor, causing only a few days or weeks of
discomfort, and not the sort that require compensation. See
also, Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001) (jury
may decide that no pain and suffering damages are due, even
where medical expenses are awarded).
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T.C.O., 7/17/14, at 4-5 (quoting Marsh, 856 A.2d at 140).
The trial court determined that “[t]he minor rear end collision in the
matter at hand renders Majczyk a more apt comparable than Marsh.” Id.
at 5. The court reasoned:
The jury might well have concluded from Amadou’s own
testimony that the impact and any resultant injury in this matter
were insubstantial. Indeed, on direct examination, despite
repetitive inquiries from his own counsel, Amadou failed to
confirm either a significant impact or any immediate pain. (N.T.,
49-51). The devaluing consequences of a plaintiff’s repeated
responses of “I can’t recall” during direct examination regarding
the severity of impact and his immediate physical sensation
resulting from that impact cannot be overlooked when
questioning the adequacy of a verdict.
Further, Amadou’s treating chiropractor, Dr. Novak, and primary
care physician, Dr. McCollum, did not so persuasively establish a
nexus between the complaints of pain voiced by Amadou and
any injury from the accident that it can be concluded that the
verdict amount was against the weight of the evidence. As
[Sarver] notes, Dr. Novak, Amadou’s principal treatment
provider following the accident, did not relate a lumbar injury to
that accident. That failed testimony is in contrast to the
certainty of [Sarver’s] expert, a board-certified orthopedic
surgeon, who did not relate the complaint of a lumbar injury to
the accident.
Generally, a new trial is [] appropriate only when the jury’s
verdict is so against the weight of the evidence as to shock one’s
sense of justice and a new trial is, therefore, required to rectify
that manifest wrong. Consequently, a court is not required to
consider the evidence in the light most favorable to the verdict
winner when considering whether a verdict might be against the
weight of the evidence. Where the evidence is conflicting and
the fact-finder could have decided in favor of either party, a new
trial will not be granted on the ground that the verdict was
against the weight of the evidence. See, Lanning v. West, 803
A.2d 753 (Pa. Super. 2002)[;] S.N.T. Industries, Inc. v.
Geanopulos, 363 Pa. Super. 97, 525 A.2d 736 (1987), app.
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den. 520 Pa. 577, 549 A.2d 137 (1988). The factual record in
this case did not compel the grant of a new trial as to damages.
Id. at 5-6.
The Majority rejects the trial court’s reliance on Majczyk, finding
Marsh more factually similar and controlling. However, as this Court
recognized in Marsh, that case “involved more than a minor rear-end
collision. Appellant’s car was struck twice on the driver’s side. An
ambulance transported [Marsh] to the hospital; she suffered injuries which
required her to take medications; her symptoms did not ameliorate for
almost six months, and she lost considerable time from work.” Marsh, 856
A.2d at 140. Therefore, we held the case was controlled by Burnhauser v.
Bumberger, 745 A.2d 1256 (Pa. Super. 2000), where a zero award for pain
and suffering “bore no reasonable relationship to the loss suffered in a head-
on collision, soft tissue injuries with pain that lasted for 6 months.” Id.I believe this case is more analogous to Majczyk and Davis v.
Mullen, 773 A.2d 764 (Pa. 2001). In Davis, a jury awarded the plaintiff a
sum that equaled his medical expenses and property damage resulting from
an automobile accident. The trial court denied the plaintiff’s motion for a
new trial based on weight of the evidence. Our Court reversed—finding the
damage award was inconsistent with the evidence presented, vacated the
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judgment, and remanded for new trial.2 Our Supreme Court reversed,
concluding that “the trial court properly exercised its discretion when it
denied Davis’ motion for a new trial because there was a reasonable basis
for the jury [to] believe: (1) that Davis did not suffer pain and/or (2) that
his alleged injury was not caused by the negligence of the defendant.” Id.
at 770. Our Supreme Court reiterated:
In reviewing an order denying a motion for a new trial, an
appellate court should not set aside a trial court’s decision unless
the trial court’s decision was an abuse of discretion. A new trial
should be granted only where the verdict is so contrary to the
evidence as to shock one’s sense of justice and not where the
evidence is conflicting or where the trial judge would have
reached a different conclusion on the same facts.
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
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.” Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d
311, 312 (1992).
Id. at 766 (some citations and internal quotations omitted; brackets
removed). See also Gold v. Rosen, 135 A.3d 1039, 1044 (Pa. Super.
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2
See Davis v. Mullen, 755 A.2d 693 (Pa. Super. 2000).
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2016) (affirming denial of new trial following award of zero damages for pain
and suffering for a relatively minor accident and stating, “While the jury's
verdict slip indicates that it concluded Rosen’s negligence caused some harm
to Gold, it did not find such harm significant enough to warrant a monetary
award, and it is within a jury’s purview to make such an essential
determination.”); Van Kirk v. O'Toole, 857 A.2d 183, 185 (Pa. Super.
2004) (affirming denial of motion for new trial following award of zero
damages for neck and back strain and sprain and noting that “[t]he real test
is whether the uncontroverted injuries are such that a conclusion that they
are so minor that no compensation is warranted defies common sense and
logic.”).
Based on my review of the trial testimony, I conclude the trial court
did not abuse its discretion by denying a new trial on the grounds that the
verdict was against the weight of the evidence. As the trial court
recognized, Amadou’s own testimony could have led the jury to conclude
that the impact and resulting injury from this minor rear-end collision were
insubstantial or non-existent.3 Moreover, testimony from his treating
chiropractor, Dr. Novak, revealed that he had treated Amadou in 2000. N.T.
Videotaped Deposition, 12/17/13, at 38. In addition, x-rays from the date
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3
Cf. Casselli v. Powlen, 937 A.2d 1137, 1147 (Pa. Super. 2007) (trial
court erred by denying a new trial based on weight of the evidence following
an award of zero dollars when evidence revealed the appellant suffered a
broken bone in his foot due to appellee’s negligence).
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of the accident revealed loss of curvature of the spine, indicating a pre-
existing condition and degenerative changes. Id. at 21-22, 91. Dr. Novak’s
treatments addressed complaints in the cervical and thoracic areas of
Amadou’s spine but not in the lumbar area. Id. at 21-22, 60, 75. However,
Amadou registered complaints of lumbar pain when examined by Sarver’s
expert orthopedic surgeon, Dr. Levy, and Amadou reported to Dr. Levy that
he had previously been injured in a car accident, for which he sought
chiropractic care. N.T. Videotaped Deposition, 12/18/13, at 12-13, 15.
It is well settled that “the power to grant or deny a new trial lies
inherently with the trial court, and we will not reverse its decision absent a
clear abuse of discretion or error of law which controlled the outcome of the
case.” Johnson v. Frazier, 787 A.3d 433, 435 (Pa. Super. 2001). I find no
abuse of discretion or error of law in the trial court’s conclusion that the
record in this case did not compel the grant of a new trial as to damages.
Therefore, I dissent from the Majority’s award of a new trial on damages to
Amadou.
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