Smith, J. v. Kaplow, J.
2698 EDA 2015
| Pa. Super. Ct. | Dec 20, 2016Background
- On Sept. 4, 2012, Smith and Kaplow sideswiped each other on a multi-lane, rainy stretch of the Benjamin Franklin Parkway; both pulled over, exchanged information, and left the scene.
- Smith (driver) and passengers Veronica Fleagle and Michael Ortiz sought chiropractic and other treatment beginning the day of the collision; treatment ended for Smith and Fleagle by Feb. 2013 and for Ortiz by June 2013; no further treatment thereafter.
- Appellants sued Kaplow for negligence (June 25, 2014); Kaplow denied negligence, asserted comparative negligence, and cross‑claimed that Smith was solely negligent.
- At trial the jury found Smith and Kaplow each 50% negligent, awarded Smith $1.00, awarded Ortiz initially $0.00 then $1.00 after further deliberation, and found Fleagle (limited tort) did not suffer a serious impairment.
- Appellants moved for a new trial arguing the nominal damages were against the weight of the evidence and raising multiple trial‑procedure and jury‑instruction errors; the trial court denied relief and judgment was entered; appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether $1.00 awards to Smith and Ortiz were against the weight of the evidence | Smith/Ortiz argued uncontroverted evidence showed neck/back sprains requiring months of care and long recovery, so nominal awards shock justice | Kaplow argued severity was disputed, experts found resolution or only soft‑tissue injury and signs of symptom exaggeration, so nominal damages were permissible | Court affirmed: jury credited defense, disputed severity meant verdict within discretion; no new trial warranted |
| 2. Court admonitions about leading questions on direct exam | Appellants contended the court improperly admonished their counsel absent defense objection | Kaplow and court: Rule 611 allows court control; admonitions within discretion | Court affirmed: no abuse of discretion in limiting leading questions |
| 3. Jury instructions and verdict‑sheet guidance (including alleged ex parte direction to award damages) | Appellants claimed instructions mis-stated burdens, misordered verdict questions, and court improperly sent jury back off‑record to award Ortiz damages | Kaplow argued the charge read as a whole was correct; court denied ex‑parte; appellants failed to object at trial to some points | Court affirmed: instructions adequate in context, no prejudicial error, and failure to object waived some claims |
| 4. Refusal to give Pa. SSJI (Civ.) 7.50 (damages where negligence and injury undisputed) | Appellants argued parties agreed negligence and injury so the SSJI should compel at least some damages | Kaplow argued negligence and extent of injury were hotly contested so the instruction (for undisputed injury/negligence) was inapplicable | Court affirmed: Pa. SSJI 7.50 applies only where negligence and injury are agreed; here both were contested |
Key Cases Cited
- Lombardo v. DeLeon, 828 A.2d 372 (Pa. Super. 2003) (trial court’s new‑trial decision reviewed for abuse of discretion)
- Davis v. Mullen, 773 A.2d 764 (Pa. 2001) (new‑trial standard; verdict must not shock one’s sense of justice)
- Carroll v. Avallone, 939 A.2d 872 (Pa. 2007) (definition of "uncontroverted" evidence and limits on setting aside verdict)
- Kiser v. Schulte, 648 A.2d 1 (Pa. 1994) (vacating grossly inadequate verdicts not supported by uncontroverted evidence)
- Gold v. Rosen, 135 A.3d 1039 (Pa. Super. 2016) (affirming no award where jury found minor accident and subjective claims insufficient for damages)
- McNeil v. Owens‑Corning Fiberglas Corp., 680 A.2d 1145 (Pa. 1996) (specific objection rule for preserving jury‑charge claims)