Lu, L. v. Kenney, L.

J-S59035-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
LI JIN LU, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
LEVIS KENNEY, SR., :
:
Appellee : No. 954 EDA 2014
Appeal from the Judgment Entered March 10, 2014,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): 120900688
BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 23, 2014
Li Jin Lu (Lu) appeals from a judgment entered in favor of Levis
Kenney, Sr. (Kenney). We vacate the judgment, reverse in part the order
-trial motions, and remand for a new trial limited to the
issue of damages.
The background underlying this matter can be summarized as follows.
The parties were involved in a motor vehicle accident, and Lu claimed he
was injured as a result of the accident. Lu filed a complaint against Kenney,
averri
injuries. Because Lu chose the limited tort option when he purchased
automobile insurance, pursuant to the Motor Vehicle Financial Responsibility
Law (MVFRL),1 he could recover non-economic damages only if he proved
1
75 Pa.C.S. §§ 1701-1799.7.
* Retired Senior Judge assigned to the Superior Court.
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Pa.C.S. § 1702.
A board of arbitrators determined that Lu was 30% negligent and that
Kenney was 70% negligent. However, because the arbitrators found that Lu
damages. Lu appealed to the trial court, and a jury trial later commenced.
The jury returned a verdict in favor of Kenney. More specifically, the
jury concluded that both parties were negligent and that their negligence
was a factual cause in bringing about harm to Lu. The jury then attributed
50% of the causal negligence to each party. The jury, however, concluded
that Lu did not suffer a serious impairment of body function as a result of
the accident. Consequently, the jury did not award any damages to Lu.
Lu timely filed post-trial motions. In those motions, Lu sought, inter
alia, a new trial based upon a claim that the trial court erroneously
tered an order denying
-trial motions. In the same order, the court entered judgment in
favor of Kenney. Lu timely filed a notice of appeal.
In his brief to this Court, Lu asks us to consider the following question:
[]Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly charged the jury,
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and defined the term serious impairment of a body function as
the laws of the Commonwealth the term has no legal or technical
definition, and it is within the sole purview of the jury to define
these terms without the assistance of the judge?
-trial motion for
a new trial. More specifically, Lu contends that he submitted to the trial
court proposed jury instructions and that one of those instructions,
Pennsylvania Suggested Standard Jury Instruction-Civil 7.190, addressed
2
Lu highlights that the court agreed
to give the jury standard instructions. N.T., 1/15/2014, at 4.
According to Lu, the trial court did not charge the jury with
Pennsylvania Suggested Standard Jury Instruction-Civil 7.190. Instead, the
court gave an instruction that, inter alia
2
Lu asserts that Pennsylvania Suggested Standard Jury Instruction-Civil
7.190 provides, in pertinent part, as follows:
In determining whether the impairment of a body function was
serious, you should consider such factors as the extent of the
impairment, the particular body function impaired, the length of
the time the impairment lasted, the treatment required to
correct the impairment, and any other relevant factors.
An impairment need not be permanent to be serious.
have no special or technical meaning in the law and
should be considered by you in the ordinary sense of their
common usage.
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Id. at 66. Lu takes the
of a motion for new trial, we must
determine if the trial court committed an abuse of discretion or error of law
Fletcher Harlee Corp. v.
Szymanski, 936 A.2d 87, 93 (Pa. Super. 2007) (citation omitted).
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 is sufficient ground for a new trial if the
charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a
material issue. A charge will be found adequate unless the
issues are not made clear to the jury or the jury was
palpably misled by what the trial judge said or unless there
is an omission in the charge which amounts to a
fundamental error. In reviewing a trial court's charge to
the jury we must look to the charge in its entirety.
Gorman v. Costello, 929 A.2d 1208, 1212 (Pa. Super. 2007) (citations
omitted) (emphasis in original).
As this Court has explained,
[s]everal factors must be considered to determine if the claimed
length of time the impairment lasted, [3] the treatment required
to correct the impairment, and [4] any other relevant factors.
An injury need not be permanent to be serious. We emphasize
that the focus of this analysis is not on the injuries themselves,
but on how the injuries affected a particular body function.
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Graham v. Campo, 990 A.2d 9, 16 (Pa. Super. 2010) (citations and
quotation marks omitted) (emphasis in original).
Here, the trial court did instruct the jury to consider these factors.
N.T., 1/15/2014, at 67-
co
jury into believing only a grave injury constitutes a serious injury. While it is
true that a grave injury would be a serious injury, an injury need not be
grave to be serious.
Wh
that the trial court erred by denying Lu a new trial limited to the issue of
damages.
For these reasons, we vacate the judgment, reverse the portion of the
to the issue of damages.
Judgment vacated. Order denying post-trial motions reversed in part.
Case remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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