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HomeMy WebLinkAbout96-0608 civilMARY TULLY and ROBERT TULLY : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : BLACK LANDSCAPE CONTRACTING : NO. 96-0608 CIVIL TERM and BLACK LANDSCAPE : CONTRACTING, INC. : Defendants : : IN RE: POST TRIAL MOTIONS BEFORE: GUIDO, J. AND NOW, this ORDER day of MARCH, 1999, Plaintiff's Post Trial Motions are DENIED. By the Edward E. Guido, J. Stephen M. Greecher, Jr., Esquire For the Plaintiffs John J. McNally, Esquire For the Defendants :sld MARY TULLY and ROBERT TULLY : IN THE COURT OF COMMON PLEAs OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : V. : BLACK LANDSCAPE CONTRACTING : NO. 96-0608 CIVIL TERM and BLACK LANDSCAPE : CONTRACTING, INC. : Defendants : : IN RE: POST TRIAL MOTIONS BEFORE: GUIDO, J. OPINION AND ORDER OF COURT This is a slip and fall case that was tried before a jury. After a week long trial the jury returned a defense verdict. In answering the special interrogatories propounded to it, the jury found that the Defendant was negligent.~ However, it also found that the Defendant's negligence was not a substantial factor in bringing about Plaintiff's harm. Plaintiff filed timely post trial motions in which she requested a new trial or, in the alternative, a directed verdict on the issue of liability. Plaintiff asked that various portions of the trial testimony be transcribed. After the transcripts were filed, the parties were given the opportunity to file briefs and argue before this Court. This matter is now ready for disposition. ~It should be noted that the parties agree that Black Landscaping Contracting and Black Landscape Contracting, Inc. are one in the same. Therefore, we will use the singular when referring to the Defendant throughout this opinion. NO. 96-0608 CIVIL TERM FACTUAL BACKGROUND This case arose from an accident alleged to have occurred on February 4, 1994. Plaintiff testified that as she was leaving work on that evening she encountered a mound of snow on the usual route to her vehicle. This mound had been there for several days. She had negotiated it each day as she came to and from the parking lot. On this particular day, she slipped and fell on the mound, landing on her right knee.2 Plaintiff's medical expert testified that the fall aggravated a 'preexisting condition in her knee. The subsequent treatment, and complications therefrom, nearly cost Plaintiff her life and have left her permanently disabled. Defendant hotly contested both the issues of negligence and causation. Although Defendant conceded that it was contractually responsible for clearing snow from the employer's premises, it provided testimony to the effect that all snow and ice had been removed from the sidewalks and parking lot as required by its contract. Defendant further elicited the following facts with regard to Mrs. Tully's prior problems with and injuries to her knee: · In 1991 she was diagnosed with degenerative joint disease 2There were no witnesses to the fall other than the Plaintiff. NO. 96-0608 CIVIL TERM in her right knee.3 · In August of 1993 she struck her right knee at work.4 · While on vacation in December of 1993 she did a lot of walking, causing her leg to bother her.s · On January 13, 1994 she fell on the ice and twisted her right leg.6 In addition, Defendant's expert clearly and unequivocally stated that the fall of February 4, 1994 did not cause the damage to Plaintiff's right knee nor did it aggravate the condition which had previously existed,v He further testified that none of the medical records contained any evidence of trauma to the right knee after the fall.8 DISCUSSION Plaintiff has raised three issues in her brief in support of the post trial motions.9 They are as follows: 1) Since the jury found Defendant to be negligent, its finding that Plaintiff suffered no harm as a result of the negligence is against the weight of the evidence. 3See notes of testimony, Mary Tully p.60. 4See notes of testimony, Mary Tully p.66. SSee notes of testimony, Mary Tully p.65. 6See notes of testimony, Mary Tully p.65. See also notes of testimony, Dr. Baker p. 30-32. 7See notes of testimony, Dr. Baker p. 64-65. 8See notes of testimony, Dr. Baker p.31-32. 9Any issue not briefed is deemed waived pursuant to local rule of court 210-7. NO. 96-0608 CIVIL TERM 2) The court erred in not allowing the Plaintiff to cross examine Dr. Baker to establish that he was being paid by the Defendant's insurance company rather than by the Defendant. 3) Since the jury found the Defendant to be negligent the Court should grant Pl.aintiff judgment notwithstanding the verdict as to the issue of liability and award a new trial limited to damages. We will address each issue separately. (1) Verdict against the weight of the evidence. Plaintiff concedes, as she must, that the grant of a new trial is justified only when the verdict is "shocking to the court's sense of justice". Foqg v. Paoli Mem'l Hosp., 455 Pa. Super. 81, 88, 686 A.2d 1355, 1359 (1996). The trial Court may not displace a ~ury's decision simply because it would have reached a different conclusion based upon the facts. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). Based upon the facts presented in the instant case, we certainly would have reached a different conclusion than the jury did. However, our sense of justice is not shocked. There was more than sufficient evidence in the record to justify the jury's conclusion that the February 4, 1994 fall did not cause any of the harm that Plaintiff suffered. Plaintiff argues that the uncontradicted evidence shows that she landed on her right knee when she fell. She further argues that since the jury found the Defendant to be negligent, there can be no question that she suffered some harm to her right knee. However, the Plaintiff ignores the well established NO. 96-0608 CIVIL TERM principle that the finder of fact may believe all, part, or none of a witness's testimony. Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). Furthermore, the jury's findings are entitled to a presumption of consistency which can be overturned only when there is no reasonable theory to support its verdict. Giovanetti v. Johns-Manville Corp., 372 Pa. Super. 431, 539 A.2d 871 (1988). In the instant case, the jury obviously chose to believe the testimony of Defendant's expert, Dr. Baker, to the effect that Plaintiff's problems were the result of a preexisting condition which was neither caused nor aggravated by the fall of February 4, 1994 Plaintiff cites the case of Rozanc v. Urbany, 444 Pa. Super. 645, 664 A.2d 619 (1995), in support of her position. Like the jury in this case, the Rozanc jury found that the Defendant had been negligent but that her negligence had not been a substantial factor in bringing about Plaintiff's harm. In awarding a new trial, the Superior Court stated: In this case it was undoubtedly clear that Appellees negligence caused Plaintiff's injuries. It is also obvious that the type of injury suffered would cause Plaintiff to suffer some pain. The defense expert conceded as much in his testimony. (emphasis added) 444 Pa. Super. at 649, 664 A.2d at 621. The critical distinction is that the Rozanc defense expert conceded that the plaintiff had ~°It is also entirely possible, and logical, that the jury could have found that Plaintiff did not even fall on her right knee on the date in question. She made several inconsistent statements on direct and cross examination which were ably highlighted by Defense Counsel. NO. 96-0608 CIVIL TERM some neck pain which was undoubtedly due to the accident. There was no such concession by the Defendant's expert in the instant case. The case of Henery v. Shadle, 443 Pa. Super. 331, 661 A.2d 439, (1995), is more similar to the case before us. In Henery there were no special interrogatories presented to the jury. It found in favor of Plaintiff but awarded zero damages. The Superior Court, in refusing to award a new trial, noted that the Defendant's medical expert testified that Plaintiff's problems were the result of degenerative disc disease which had not been affected by the accident. The Superior Court noted: Thus, there was a sure and certain evidentiary basis for the determination of the jury that the negligence of appellee was not a substantial factor in the injuries suffered by appellant. 443 Pa. Super. at 337, 661 A.2d at 442. As in Henery, the jury in the instant case had a "sure and certain evidentiary basis" upon which to base its decision that the negligence of Defendant was not a substantial factor in producing the injuries complained of by the Plaintiff. Since we are neither shocked by the jury's decision, and since we are satisfied that there was a reasonable theory to support its verdict, it would not be appropriate for us to order a new trial even though we would have reached a different conclusion. (2) It was not error for the Court to refuse to allow Plaintiff to cross examine Defendant's expert to establish that he was being paid by the Defendant's insurance company. NO. 96-0608 CIVIL TERM Plaintiff argues that she should have been allowed to establish that Dr. Baker was being paid by Defendant's insurance carrier. This is especially true, she argues, when the Defendant's counsel created the "untrue" impression that the doctor was being paid by the Defendant. The questions which Plaintiff's counsel allege created the untrue impression went as follows: Q. Have you reviewed x-rays of Mary Tully's knee both before and after February of 19947 A. Yes. Q. Have you had the opportunity to examine? A. Yes. On one occasion at the request of the snow man remover; the snow remover. Q. That would be Greg Black. Now, you examined her for the purpose -- for what purpose? A. It was a legal thing. I mean the insurance company has a claim and they want to understand that claim, and so they want someone to review the records and give their opinion as to what happened. Q. Now, you didn't examine her for the purpose of providing any treatment, correct? A. No. Q. Did you review that for the purpose of providing an opinion? A. Yes. Q. One of the reasons I sped you up, Doctor, is because we're paying you for this service today; isn't~ that true ? A. I understand that. Q. We're paying you hourly? NO. 96-0608 CIVIL TERM A. If I go over on my parking ticket you're going to pay for that too. The whole thing gets covered. It's a wonderful experience. ~ (emphasis added) Based upon the foregoing exchange, the Plaintiff's counsel wanted to cross examine the Doctor to highlight the fact that he was being paid by the Defendant's insurance company rather then the Defendant personally. We disallowed that line of questioning. We are satisfied that our decision was appropriate. The Doctor had already testified that he examined the Plaintiff for "the insurance company." There could be no logical or relevant basis for the follow up questioning other then to highlight that Defendant was covered by insurance. The issue of liability insurance is both inadmissible and an improper subject of cross examination. Price v. Yellow Cab Co. of Philadelphia, 443 Pa. 56, 278 A.2d 161 (1971). (3) The finding of negligence does not require a judgment in favor of Plaintiff on the issue of liability. In order to recover in a negligence action, the Plaintiff must prove by a preponderance of the evidence that the Defendant was negligent and that the Defendant's negligence was a substantial factor in causing injury to the Plaintiff. See ~See notes of testimony, Dr. Baker p. 15-16. NO. 96-0608 CIVIL TERM Henery v. Shadle, supra.~2 In the instant case, the Plaintiff proved only one half of the equation. Therefore, judgment in her favor on the issue of liability would not be appropriate. For the reasons set forth above, Plaintiff's post trial motions are DENIED. ORDER AND NOW, this 12TH day of MARCH, 1999, Plaintiff's Post Trial Motions are DENIED. By the Court, Stephen M. Greecher, Jr., Esquire For the Plaintiffs John J. McNally, Esquire For the Defendants :sld /s/ Edward E. Guido Edward E. Guido, J. ~2Actually, our Supreme Court in Ornerv. Mallick, 515 Pa. 132, 527 A.2d 521 (1987), set fourth four elements to a negligence action: ... the existence of a duty or obligation recognized by law; a failure on the part of the defendant to conform to that duty, or a breach thereof; a causal connection between the defendant's breach and the resulting injury; and actual loss or damage suffered by the complainant. 515 Pa. at 135, 527 A.2d at 523. Those four elements have been simplified for the jury in special interrogatories such as the ones used in the instant case. "Was the Defendant negligent?" encompasses the first two elements. "Was the Defendant's negligence a substantial factor in bringing about Plaintiff's harm?" deals with the last two elements.