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HomeMy WebLinkAbout96-1003 CivilLEAH J. 'BURKEY and DWAYNE E. BURKEY Plaintiffs JOHN L. ~ADE and DEPENDABLE TRANSIT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 96-1003 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR NEW TRIAL BEFORE OLER, J.  ORDER OF COURT AND NOW, this~ day of February, 1998, upon consideration of Plaintiff's motion for a new trial, and for the reasons stated in the accompanying opinion, the motion is DENIED. David J. Hunter, Jr., Esq. 821 State Street Erie, PA 16501 For the Plaintiffs BY THE COURT, J~.W~sley dle~. , .J~ ' ' Clark DeVere, Esq. 3211N. Front Street Harrisburg, PA 17110 For the Defendants : rc LEAH J. BURKEY and DWAYNE E. BURKEY Plaintiffs Vo JOHN L. WADE and DEPENDABLE TRANSIT, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 96-1003 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR NEW TRIAL BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., February 27, 1998. This is a negligence action arising out of a February 23, 1994, motor vehicle accident involving a tractor trailer driven by Defendant John L. Wade and a car operated by Plaintiff Leah J. Burkey. Defendant Dependable Transit, Inc., was the employer of Mr. Wade. A second defendant, G&G Leasing, was the lessor of the tractor being driven by Mr. Wade. Plaintiff Dwayne E. Burkey sued for loss of consortium. Defendants Dependable Transit, Inc., and G&G Leasing~ filed a counterclaim against Leah J. Burkey. Following a trial, the jury found that Defendant Wade and his employer, Defendant Dependable Transit, were negligent, but that their negligence was not a substantial factor in bringing about the harm to Plaintiff Leah J. Burkey. Presently before the court is Plaintiffs' motion for a new trial, contending that the jury's verdict was against the weight of the evidence. For the reasons stated in this opinion, Plaintiffs' motion will be denied. ~ G&G Leasing was dismissed from this action pursuant to a stipulation of counsel. Order of Court, dated September 16, 1997. NO. 96-1003 CIVIL TERM STATEMENT OF FACTS On February 23, 1994, Plaintiff Leah J. Burkey was driving a 1989 White Mercury Sable in the eastbound lanes of the Pennsylvania Turnpike. It was snowing and the road surface was icy and snow- covered. At approximately 9:15 a.m., near milepost 203.4, Ms. Burkey's vehicle skidded in the snow, fishtailed, hit the concrete medial barrier and came to a stop. A tractor trailer driven by Defendant John L. Wade was travelling in the east-bound passing lane behind Ms. Burkey's Sable and collided with her vehicle. Nelson J. Ruddy and Donald Hall were also driving east on the turnpike behind Ms. Burkey's vehicle the day of the accident. They both witnessed Ms. Burkey's car spin out of control and the subsequent collision. Mr. Hall testified that he felt that both Ms. Burkey and Mr. Wade were travelling too fast for the road conditions that day. James E. Hurley, M.D., was working in the trauma unit of the Chambersburg Hospital the day of the accident. He treated Ms. Burkey for a laceration to the back of her head. Dr. Hurley noted that she suffered from a right chest wall contusion. X-rays revealed that she also suffered a fracture of the right fifth rib. No soft tissue swelling of abnormalities of the spine were noted. Dr. Hurley prescribed pain medication and released Ms. Burkey. Ms. Burkey was involved in a subsequent car accident three months later, on May 20, 1994. In March of 1996, she experienced NO. 96-1003 CIVIL TERM lower back problems at work. Ms. Burkey was diagnosed with ovarian cancer in August of 1996. Ms. Burkey alleged various injuries as a result of the accident, including cervical or lumbar strain. At trial, Ms. Burkey testified that she had experienced constant headaches and sleeplessness since the February 23, 1994, accident. She testified that she had to take sleeping pills in order to sleep since the accident. She also testified that she suffered from back problems and that her movements were limited. Ms. Burkey indicated that following the accident she received treatment from a chiropractor. Ms. Burkey testified that she had pain every day and needed to use heating pads. Dr. Perry Eagle, an orthopedic surgeon, testified for Defendants. He opined that Ms. Burkey may have sustained cervical or lumber strain due to the accident. However, he felt that at the time of a medical examination in 1997 she was no longer suffering from these symptoms and that no further treatment was necessary. Following trial, the jury found that Defendants Wade and Dependable Transit were negligent, but that their negligence was not a substantial factor in bringing about the harm to Plaintiff Leah J. Burkey. In the counterclaim of Dependable Transit against Ms. Burkey, the jury found that Ms. Burkey was negligent, but that her negligence was not a substantial factor in bringing about the harm to Dependable Transit. Plaintiffs' have filed a motion for a NO. 96-1003 CIVIL TERM new trial alleging that the jury's verdict on their claims was against the weight of the evidence. DISCUSSION The decision as to whether to grant a new trial based upon the weight of the evidence is committed to the sound discretion of the court. Krymalski v. Tarasovich, 424 Pa. Super. 121, 127, 622 A.2d 298, 301, appeal denied, 535 Pa. 675, 636 A.2d 634 (1993). In resolving the issue of whether to grant a new trial, the court must examine all of the evidence presented. Seewagen v. Vanderkluet, 338 Pa. Super. 534, 544, 488 A.2d 21, 26 (1985). When the basis for a motion for a new trial is that the verdict is against the weight of the evidence, the "evidence supporting the verdict [must be] so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court's sense of justice." Brindley v. Woodland Village Restaurant, Inc., 438 Pa. Super. 385, 399, 652 A.2d 865, 872 (1995). A mere conflict of testimony is not enough to justify the grant of a new trial. Baldino v. Castagna, 505 Pa. 239, 248, 478 A.2d 807, 812 (1984). Additionally, the finder of fact "is entitled to believe all, some, or none of the evidence presented." Rafter v. Raymark Industries, Inc., 429 Pa. Super. 360, 372, 632 A.2d 897, 903 (1993). First, the court notes that the jury found both that Defendants were negligent, but that their negligence was not a 4 NO. 96-1003 CIVIL TERM substantial factor in bringing about the harm to Ms. Burkey and, on the counterclaim, that Ms. Burkey was negligent, but that her negligence was not a substantial factor in bringing about the harm to Dependable Transit. Plaintiffs did not object to the jury's verdict on the ground that it was inconsistent or request to have further instructions given to the jury. Thus, Plaintiffs have not preserved any issue as to whether the jury's verdict was inconsistent. See Picca v. Kriner, 435 Pa. Super. 297, 645 A.2d 868 (1994). Because Plaintiffs have not pursued the issue of whether the jury's verdict was inconsistent, the court will focus upon Plaintiffs' claim that the jury's finding that Mr. Wade and Dependable Transit, were negligent, but that their negligence was not a substantial factor in bringing about the harm to Ms. Burkey, was against the weight of the evidence. In support of the claim that the jury's verdict was against the weight of the evidence, Plaintiffs rely on two decisions of the Pennsylvania Superior Court: Craft v. Hetherly, Pa. Super. , 700 A.2d 520 (1997) and Rozanc v. Urbany, 444 Pa. Super. 645, 664 A.2d 619 (1995). However, both of these cases are distinguishable on their facts from the present case. Craft v. Hetherly, Pa. Super. __, 700 A.2d 520 (1997), involved a motor vehicle collision which occurred when a defendant made a left turn into a second driver's lane of travel, directly in NO. 96-1003 CIVIL TERM front of the second driver's vehicle. At trial, there was no dispute that the second driver was injured as a result of the accident. Furthermore, evidence presented indicated that the second driver was driving at a safe speed and that she had no time to stop or swerve her vehicle to avoid the collision when the defendant pulled into her lane. The jury found that the defendant was negligent, but that his negligence was not a substantial factor in bringing about harm to the second driver. The Pennsylvania Superior Court held that this conclusion "[bore] no rational relationship to the evidence adduced at trial." Id. at __, 700 A.2d at 523. The Court reasoned that the fact that the defendant pulled directly into the second driver's path, and that the second driver had no way to avoid the collision, were "so clearly of greater weight that to ignore them or to give them equal weight with all the facts [was] to deny justice." Id., at __, 700 A.2d at 524, quoting Thompson v. City of Philadelphia, 507 Pa. 592, 601, 493 A.2d 669, 674 (1985). Therefore, the Court concluded that the verdict shocked the court's sense of justice because it ignored the greater weight of the defendant's negligence, and, therefore, warranted the grant of a new trial. Id. at , 700 A.2d at 523. Rozanc v. Urbany, 444 Pa. Super. 645, 664 A.2d 619 (1995), involved a motor vehicle accident in which a defendant rear-ended a vehicle which was stopped on an on-ramp waiting to merge with traffic, injuring the driver of the stopped vehicle. At trial, NO. 96-1003 CIVIL TERM uncontradicted evidence was introduced that the driver of the stopped vehicle was injured as a result of the collision. Furthermore, the defendant admitted that she had collided with the stopped vehicle because she was looking over her left shoulder and not paying attention to the vehicles in front of her. The jury found that the defendant was negligent, but that her negligence was not a substantial factor in bringing harm to the driver of the stopped vehicle. The Superior Court found this to be "completely contrary to the evidence provided at trial." Id. at 651, 664 A.2d at 622. The Court noted that the defendant had admitted that she was not watching in front of her and that this had led to the collision and observed that it was "undoubtedly clear that [the defendant's] negligence caused [the plaintiff's] injuries." Id. at 649, 664 A.2d at 621. Consequently, the Court held that the jury's finding was shocking to the court's conscience and remanded the matter for a new trial. Id. at 651, 664 A.2d at 622. In the present case, Ms. Burkey was traveling on the Pennsylvania Turnpike when she negligently lost control of her vehicle, causing an abrupt and unexpected obstruction to be placed in the path of vehicles traveling behind her on an icy highway. The jury may have concluded that Mr. Wade was driving too fast for conditions at the time, but that, even if he had been driving at a speed which most people would consider correct for the weather NO. 96-1003 CIVIL TERM conditions, he would not have been able to avoid the sudden emergency which Ms. Burkey's negligence created when she lost control. The jury may, in other words, have concluded that Ms. Burkey's negligence in losing control of her vehicle and placing herself in the middle of an icy roadway was significant in terms of causation and that any negligence on Mr. Wade's part was not. Under these circumstances, the assessment by the jury that the negligence of Ms. Burkey was causally important enough to be considered a substantial factor in bringing about her harm and that the negligence of Defendants was not cannot be said to have been so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court's sense of justice. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 27th day of February, 1998, upon consideration of Plaintiff's motion for a new trial, and for the reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, David J. Hunter, Jr., Esq. 821 State Street Erie, PA 16501 For the Plaintiffs s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 8 NO. 96-1003 CIVIL TERM Clark DeVere, Esq. 3211 N. Front Street Harrisburg, PA 17110 For the Defendants : rc 9