Nudelman v. GilbrideNudelman v. Gilbride
- Reporters:
- , ,
- Before:
- Cirillo
Shirley Nudelman and Samuel Nudelman (the Nudelmans) appeal from an order entered in the Court of Common Pleas of Lackawanna County denying their motion for a new trial. 1 We affirm.
The instant appeal arises out of a motor vehicle accident, whereby the Nudelmans filed a civil action against Kevin D. Gilbride seeking recovery for pain and suffering and loss of consortium.
On November 13, 1990, Kevin Gilbride was driving down Vine Street in Lackawanna County. Shirley Nudelman, 63 years of age at the time, having just exited a fashion show at the Masonic Temple, was attempting to cross Vine Street at the intersection of Vine Street and North Washington Avenue. As she proceeded across the intersection she was struck by a car driven by Kevin Gilbride. Mrs. Nudelman suffered nerve damage to her knee and lower left leg. The damaged nerve caused her to experience burning pain and paresthesias in her left leg and knee. She also suffered torn cartilage in her left knee, a fractured right toe, and indentations on the inside of her left knee. The collision also aggravated her pre-existing condition of osteoarthritis in her left knee. Mrs. Nudelman had a long standing history of degenerative arthritic condition in both knees, and was treated with steroid injections approximately ten years prior to the accident.
Shirley Nudelman was taken to Moses Taylor Hospital, by ambulance, treated for her broken toe and released. She was
The appellee, Kevin Gilbride, did not provide any experts to contradict Dr. Malloy’s testimony. However, on cross-examination of Dr. Malloy and Shirley Nudelman, it was evident that Mrs. Nudelman did not experience constant pain, but sporadic pain in the knee. In fact, the knee functioned painlessly in a range of motion test. The size of the area that the skin was indented was about 3 inches by 2 inches on the inside of the knee. Further, Dr. Malloy stated that Shirley Nudelman had no difficulty in walking. Also, by her six-month visit in December, Dr. Malloy noted that there were no sensory abnormalities such as numbness or lack of sensation.
At trial, the jury was instructed on the issue of comparative negligence. The jury determined that Mrs. Nudelman was fifty percent (50%) comparatively negligent and that Kevin Gilbride was also fifty percent (50%) responsible. The jury then returned a verdict awarding Shirley Nudelman $5,000.00 for past, present, and future physical pain and suffering. The jury awarded zero damages for past, present, and future emotional distress, disfigurement, mental anguish, embarrass
The Nudelmans moved for a new trial, claiming the jury award was inadequate and against the weight of the evidence. The trial court denied the motion for a new trial, concluding that “[t]he $5,000 bears a reasonable relation to the proven damages.” The Nudelmans also asserted that the jury finding of comparative negligence was without merit. The trial court denied the motion for a new trial. This appeal followed.
The Nudelmans raise the following issues for our review:
(1) Whether the jury award of damages in the amount of twenty-five hundred ($2,500) dollars was manifestly against the weight of the evidence, and failed to justly compensate the plaintiffs for the injuries sustained as a proximate result of the defendant’s negligence, considering the uncontradicted medical evidence presented at trial?
(2) Whether the jury award of twenty-five hundred ($2,500) dollars in damages was contrary to the charge of the court and manifestly against the weight of the evidence?
(3) Whether the jury award of zero damages with regard to the loss of consortium claim by Samuel Nudelman was grossly inadequate and manifestly against the weight of the evidence proffered at trial?
The decision to grant or deny a new trial, because of inadequacy of the verdict, is a decision particularly -within the discretion of the trial court, and will not be overturned on appeal unless the trial court clearly and palpably abused its discretion or erred as a matter of law.
Stevenson v. General Motors Corp.,
513 Pa. 411, 521 A.2d 413 (1987);
see also Botek v. Mine Safety Appliance Corp.,
531 Pa. 160, 611 A.2d 1174 (1992);
Leslie v. Pennco Inc.,
323 Pa.Super. 23, 470 A.2d 110 (1983);
Bortner v. Gladfelter,
302 Pa.Super. 492, 448 A.2d 1386 (1982). Further, a new trial should not be granted because of a mere conflict in testimony, or because the trial judge on the
As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to. indicate passion, prejudice, partiality, or corruption, or where the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.
22 Am.Jur.2d, Damages, § 1029 (1988). See also Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982); Mueller v. Brandon, 282 Pa.Super. 37, 39-40, 422 A.2d 664, 665 (1980); Morris v. Peckyno, 202 Pa.Super. 490, 492, 198 A.2d 396, 397 (1964).
As noted by the Pennsylvania Supreme Court in Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959):
It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury’s.
Id. at 115, 152 A.2d at 240.
“Where the trial court grants a new trial on the ground of inadequacy the appellate courts will not interfere in the absence of a gross abuse of discretion.... When the trial court refuses relief against an allegedly inadequate verdict, the appellate court will exercise even greater caution in reviewing its action.” Mueller v. Brandon, 282 Pa.Super. 37, 41, 422 A.2d 664, 666 (1980) (emphasis in original) (quoting Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 420-421, 97 A.2d 816, 818 (1953)).
This narrow standard of review stems from the nature of the entire judicial process. The jury and trial judge are clearly in the best position to evaluate the evidence. They have the opportunity to look into the eyes of the litigants, and evaluate the veracity of the witnesses’ statements. They also have the benefit of viewing the photographic record, and viewing the damage done to victims presented at the time of trial. Further, the reviewing court has no way of knowing how or why a jury reached their verdict in a given case, the presence of passion, partiality, or corruption on the part of the jury, or whether the jury disregarded instructions, acted under misapprehension or mistake. Mueller, 282 Pa.Super. at 39-40, 422 A.2d at 665. The reviewing court must look at the entire record to see if “the injustice of the verdict stand[s] forth like a beacon.” Elza, 396 Pa. at 118, 152 A.2d at 241, or, as Justice Musmanno eloquently stated, when “the figure of Justice totters on her pedestal.” Lupi v. Keenan, 396 Pa. 6, 16, 151 A.2d 447, 453 (1959) (Musmanno, J., dissenting).
When the jury’s verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.
Id. at 15-16, 151 A.2d at 452.
Generally, victims are entitled to be compensated for all of their losses caused by negligence of another. However, not every injury results in compensable pain.
Boggavarapu v. Ponist,
518 Pa. 162, 166-67, 542 A.2d 516, 518 (1988);
Hawley v. Donahoo,
416 Pa.Super. 469, 470-71, 611 A.2d 311, 312 (1992). In
Boggavarapu,
the Pennsylvania Supreme Court stated that injuries which are obviously accompanied by pain include a broken bone, stretched muscle, twist of skeletal
In the instant case, the Nudelmans contend that the jury award was inadequate and against the weight of the medical evidence. We disagree.
In Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955), the Pennsylvania Supreme Court awarded $5,000.00 to two pedestrians struck by an automobile. One pedestrian spent seventeen days in the hospital with a fractured left clavicle and numerous contusions. The other pedestrian spent seventy-five days in the hospital for fractured teeth, sacrum, pelvis, and left fibula. The Pennsylvania Supreme Court denied the pedestrians’ motion for a new trial. The court found the verdict to be adequate as a compromise verdict based upon conflicting testimony on negligence.
In Bronchak, supra, this court, found the verdict of $63.30 did not warrant a new trial when the plaintiff’s vehicle was struck by another vehicle. This court did recognize that the verdict was low, but concluded that since evidence of a preexisting condition of calcium deposits and cervical arthritis was presented at trial, the jury could reasonably conclude that these pre-existing injuries were more responsible for the plaintiff’s neck pain than the accident. Thus, this court denied a motion for a new trial.
Not all jury verdicts, however, are upheld on appeal. In
Deitrick v. Karnes,
329 Pa.Super. 372, 478 A.2d 835 (1984), for example, this court found that damages awarded to a plaintiff were inadequate. The jury awarded the plaintiffs, Robert and Jane Deitrick, $500.00 for pain, suffering, and lost wages, while Jane Deitrick was awarded zero damages for loss of
In the instant case, Shirley Nudelman had osteoarthritis in both knees prior to the accident. The issue of liability was hotly contested, as evidenced by the jury’s 50% comparative negligence determination. Shirley Nudelman’s injuries were a combination of objective and subjective injuries. She received a fractured toe, damage to the saphenous nerve in her left leg and left knee, an indentation in her skin on the inside of her left knee, and torn cartilage in her left knee. The fractured toe healed fully. The damage to the saphenous nerve and the indented patch of skin will be permanent injuries, as well as the torn cartilage in her left knee. She did not stay in the hospital overnight as a direct result of the accident. Only after receiving medication, which caused her to have pancreatitis and ulcers, did she have to stay in the hospital for three days. She did not have surgery nor did she receive a cast. She also did not receive crutches, a walker, or any other
In Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982), this court set forth five considerations to determine whether a verdict should be set aside as inadequate.
(1) the verdict awarded in case indicates passion prejudice, partiality, or corruption on the part of the jury, or
(2) the verdict reveals that the jury either disregarded or misapprehended the instructions by the court, or
(3) the verdict awarded bears no reasonable relation to the losses sustained by the plaintiff, or
(4) the verdict evidenced a failure of justice to the plaintiff, or
(5) the verdict is so inadequate that it should not be permitted to stand.
Id. at 496, 448 A.2d at 1389.
After a thorough review of the record, this court finds no evidence that the jury was influenced by passion, prejudice, partiality, or corruption in reaching their verdict. By analyzing the instructions of the trial court, it is clear that the jury neither disregarded nor misapprehended the instructions of the court. The jury first found that the plaintiff, Shirley Nudelman, and the defendant, Kevin Gilbride, were both fifty percent comparatively negligent. The judge then properly instructed the jury to award damages to Shirley and Samuel Nudelman without factoring in the comparative negligence of the plaintiff. The jury followed the judge’s instructions, and awarded to Shirley Nudelman $5,000.00 for past, present, and future pain and suffering. The trial judge found that this verdict was reasonable in relation to the proven damages. We also agree that this verdict for $5,000.00 for past, present, and
The Nudelman’s final issue states that the jury’s verdict was inadequate and against the weight of the evidence in regard to Samuel Nudelman’s loss of consortium. In determining whether the jury’s award was inadequate and against the weight of the evidence in the instant case, we look to the unique facts, and review the extent of the deprivation to Samuel Nudelman and the disruption to the Nudelman’s family life. Burns v. Pepsi-Cola Metropolitan Bottling, 353 Pa.Super. 571, 576-78, 510 A.2d 810, 813 (1986). The deprivation was calculated by the jury evaluating testimony regarding the aid, assistance, comfort, and society Shirley Nudelman provided to Samuel Nudelman prior to the accident.
This court addressed the issue of loss of consortium in Deitrick, supra. There, we found that the award of zero damages to the wife for loss of consortium was “shocking and inadequate.” Deitrick, 329 Pa.Super. at 380, 478 A.2d at 839. In reaching this conclusion, this court pointed to the fact that the wife was forced to sleep on the couch in the living room due to her husband’s continual moaning as a result of the pain from the accident. The husband was unable to provide his wife assistance at home, in the form of cooking, taking out the garbage, mowing the lawn, and moving heavy equipment at her gift shop. This court also focused on the fact that Deitrick’s wife worked long hours at her shop. “[Robert] Deitrick’s inability to perform these chores was particularly significant since Jane Deitrick owned a gift and craft shop which required her attention for long hours every day.” Id. at 380-81, 478 A.2d at 839. In Deitrick, this court concluded that if the evidence of damages was contradicted by the defense, then the jury was justified in determining the credibility of witnesses, and in returning nominal damages. Id. at 380-82, 478 A.2d at 839. This court found, however, that the damages were uncontradicted and awarded a new trial.
We are not shocked by the jury’s verdict nor are we shocked by the trial court’s refusal to grant a new trial. After analyzing the entire record, the injustice of the verdict does not “stand forth like a beacon.” Elza, supra. Therefore, we affirm the trial court’s denial of a motion for a new trial.
Judgment Affirmed.
Notes
. In the absence of entry of judgment on a verdict, “we have repeatedly advised the profession that an order refusing a new trial is interlocutory and unappealable,” and that such an appeal should not be entertained until a final judgment is entered.
Dennis v. Smith,
288 Pa.Super. 185, 186, 431 A.2d 350, 351 (1981);
see