Opinion
3071 EDA 2022 J-S44005-23
01-11-2024
MICHELLE JOHNSON Appellant v. ADRIEL RODRIGUES
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment Entered January 27, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 190606949
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.
MEMORANDUM
OLSON, J.
Appellant, Michelle Johnson, appeals from the judgment entered January 27, 2023. We affirm. The trial court ably summarized the underlying facts and procedural posture of this case:
A motor vehicle accident occurred on June 26, 2017 between [] Appellant and Appellee[, Adriel Rodrigues]. Appellant and her friend were traveling on Route 676 returning home from a nightclub around 2:30 [a.m.] Appellant was operating her vehicle in the middle lane of Route 676. [During that time, a] motorcycle and tractor trailer passed [Appellant and] Appellee [who was traveling on a motorcycle behind Appellant,] struck [the rear of Appellant's vehicle]. On cross-examination, Appellant testified that she was going the speed limit, had no reason to slow down, and did not apply her breaks before Appellee struck her.
Appellee[,] while riding his motorcycle, merged into the middle lane of Route 676. Going with the flow of traffic in the middle
lane, Appellee noticed Appellant appl[y] her brakes out of nowhere. Appellee attempted to avoid Appellant's [vehicle] but could not swerve to the left or right due to traffic on both sides. Due to the distance between him and Appellant's vehicle, Appellee could not stop before striking Appellant's vehicle. Appellee testified that he applied his brakes before impact with the rear of Appellant's vehicle.
Brandon Miles ("Witness") was [also] driving on Route 676 and saw the motor vehicle accident. Witness testified that he was driving a vehicle in the lane to the left of the parties. Witness was behind a semi-truck with [] Appellee beside [him] and [] Appellant in front of [] Appellee. Witness recall[ed] seeing [Appellant's] brake lights . . . and then [Appellee's] brake lights . . . immediately thereafter. Witness did not recall seeing anything ahead of them that would have caused Appellant to apply her brakes. Witness testified that from what he could recall seeing, it was his assumption that the large semi-truck passing Appellant on her left spooked Appellant, which caused her to apply her brakes.
***
On June 24, 2019, Appellant filed a [c]omplaint against [Appellee] for injuries sustained during the motor vehicle accident. On October 20, 2022, after a [jury] trial, the jury found in favor of Appellant, finding both parties negligent in bringing about Appellant's injuries (Appellant 30% liable and Appellee 70% liable), and awarded Appellant [$4,700.00 in damages], which represented her medical bills. On October 31, 2022, Appellant filed a [p]ost-[t]rial [m]otion, seeking new trials for damages and liability. On November 4, 2022, Appellee filed a [r]esponse to Appellant's [p]ost-[t]rial [m]otion. On [December 1], 2022, . . . the [t]rial [c]ourt entered an order[] denying Appellant's [p]ost-[t]rial [m]otion. [This timely appeal followed.]Trial Court Opinion, 5/10/23, at 1-3 (internal citations omitted). Appellant raises the following issues on appeal:
1. Did the trial court commit an error of law/abuse of discretion in failing to order a new trial on causation, [after it gave a] comparative negligence instruction where there was not
even minimal evidence suggest[ing] comparative negligence fault?
2. Did the trial court commit an error of law/abuse of discretion in failing to order a new trial on damages, [after it instructed] the jury to disregard wage loss [even though] sufficient testimony [was provided] and when the jury asked a question during deliberation regarding the specific time period regarding an amount of wage loss?Appellant's Brief at 4.
In each issue, Appellant argues that the trial court should have granted a new trial. As such, we bear the following standard in mind in our review.
In reviewing a trial court's denial of a post-trial motion seeking a new trial, this Court applies a deferential standard of review.
The decision whether to grant or deny a new trial is one that lies within the discretion of the trial court. We will not overturn such a decision unless the trial court grossly abused its discretion or committed an error of law that controlled the outcome of the case.Woullard v. Sanner Concrete and Supply, 241 A.3d 1200, 1211 (Pa. Super. 2020) (citation omitted).
We have reviewed the briefs of the parties, the relevant law, the certified record, and the opinion of the able trial court judge, the Honorable Carmella G. Jacquinto. We conclude that Appellant is not entitled to relief in this case for the reasons expressed in Judge Jacquinto's May 10, 2023 opinion. Therefore, we affirm based on Judge Jacquinto's opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach copies of Judge Jacquinto's May 10, 2023 opinion.
Judgment affirmed.
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL DIVISION
No.190606949
OPINION
CARMJMA JACQUINTO, J.
Michelle Johnson ("Appellant") appeals from the final judgment entered on January 27, 2023. As discussed herein below, it is respectfully suggested that the judgment of the trial court be affirmed.
PROCEDURAL HISTORY
On June 24, 2019, Appellant filed a Complaint against Adriel Rodriguez ("Appellee") for injuries sustained in a motor vehicle accident. On October 20, 2022, after a trial, the jury found in favor of Appellant, finding both parties negligent in bringing about Appellant's injuries (Appellant 30% liable and Appellee 70% liable), and awarded Appellant four thousand and seven hundred dollars ($4,700.00), which represented her medical bills. On October 31, 2022, Appellant filed a Post-Trial Motion, seeking new trials for damages and liability. On November 4, 2022, Appellee filed a Response to Appellant's Post-Trial Motion. On November 29, 2022, upon consideration of Appellant's Post-Trial Motion and Appellee's Response to Post-Trial Motion, the Trial Court entered an order, denying Appellant's Post-Trial Motion. On December 12, 2022, Appellant filed a timely appeal. Appellant reduced the jury verdict to final judgment on January 27, 2023.
FACTUAL RECITATION
A motor vehicle accident occurred on June 26, 2017 between the Appellant and Appellee. (N.T., 10/20/2022, 49). Appellant and her friend were travelling on Route 676 returning home from a nightclub around 2:30 A.M. (N.T., 10/20/2022, 63). Appellant was operating her vehicle in the middle lane of Route 676. Id. Appellant recalls a motorcycle and tractor trailer truck passing her on her left side. (N.T., 10/20/2022, 51). At the time the motorcycle and tractor trailer truck passed her, Appellee struck Appellant. Id. On cross-examination, Appellant testified that she was going the speed limit, had no reason to slow down, and did not apply her brakes before Appellee struck her. (N.T., 10/20/2022, 64).
Appellee while riding his motorcycle, merged into the middle lane of Route 676. (N.T., 10/20/2022, 45). Going with the flow of the traffic in the middle lane, Appellee noticed Appellant applied her brakes out of nowhere. (N.T., 10/20/2022, 46). Appellee attempted to avoid Appellant's car but could not swerve to the left or right due to traffic on both sides. Id. Due to the distance between him and Appellant's vehicle, Appellee could not stop before striking Appellant's vehicle. Id. Appellee testified that he applied his brakes before impact with the rear of Appellant's vehicle. Id.
Brandon Miles ("Witness") was driving on Route 676 and saw the motor vehicle accident. (N.T., 10/20/2022, 84). Witness testified that he was driving a vehicle in the lane to the left of the parties. (N.T., 10/20/2022, 85). Witness was behind a semi-truck with the Appellee beside him and the Appellant in front of the Appellee. (N.T., 10/20/2022, 84). Witness recalls seeing the brake lights of Appellant and then the brake lights of Appellee immediately after. Id. Witness did not recall seeing anything ahead of them that would have caused Appellant to apply her brakes. (N.T., 10/20/2022, 85). Witness testified that from what he could recall seeing, it was his assumption that the large semi-truck passing Appellant on her left spooked Appellant, which caused her to apply her brakes. (N.T., 10/20/2022, 85-86).
During Appellant's direct examination, she testified that at the time of trial she was employed by UPS. (N.T., 10/20/2022, 49). Appellant worked as a home health aide and a school bus aide at the time of the car accident. (N.T., 10/20/2022, 61). Appellant also testified that she missed work from the accident, and she did not start another job until 2019 with Cooper Hospital. (N.T., 10/20/2022, 62). Despite testifying she did not start another job until 2019, during Appellant's cross-examination, she testified that she worked forty-two hours during the week after the car accident. (N.T., 10/20/2022, 71). Appellant further testified that she worked several jobs since the car accident, including as a bus attendant from September 2017 to February of 2018. (N.T., 10/20/2022, 72). During the video of Appellant's expert witness testimony, Dr. Gartenberg stated that Appellant stopped working in or around 2017 due to childcare issues. (N.T., 10/20/2022, 114, 153).
The Court inquired with counsel for both parties as to if there were any objections to the jury instructions given, both counsel confirming they had no objections. (N.T., 10/20/2022, 148). The Court received a question from the jury pertaining to economic loss sustained because of the accident. (N.T., 10/20/2022, 150). The Court discussed the question, and then Appellant's counsel brought up the topic of wage loss. Id. After some discussion regarding whether Appellant presented wage loss evidence, the Court stated, "Here's my thing, everybody agreed to the jury instructions and it's just for past medical expenses." (N.T., 10/20/2022, 154). The Court continued, "Like I said, both attorneys agreed to the jury instructions in 7.20 past medical expenses. You didn't talk anything about wage loss or anything of that nature. And then we had 7.110, past and future, but that's noneconomic loss. So the only thing I can read back is the past medical expenses instruction." (N.T., 10/20/2022, 155). Both attorneys agreed with the Court. Id. The jury returned to the courtroom and the Court re-read the jury instruction. (N.T., 10/20/2022, 156).
The Court and counsel for the parties were anticipating a question from the jury related to wage loss when a juror inquired of such when the judge answered a previous question. (N.T., 10/20/2022, 157). The Court and counsel for the parties addressed the wage loss question, with each counsel arguing as to whether the evidence supported such a charge. (N.T., 10/20/2022, 157-161). The Court agreed with counsel for Defendant that no testimony was provided regarding wage loss. Furthermore, the Court stated to counsel for each party that, "[The wage loss jury instruction] was not read into because neither counsel asked me to read that in, so it's not an issue in this case which is why that instruction wasn't read. That was not part of this case. It was not read in by both counsel and I have the proposed jury instructions by both counsel in front of me as agreed upon." (N.T., 10/20/2022, 161). It was at this time, counsel for Plaintiff made his objection to the denial of the wage loss jury instruction. (N.T., 10/20/2022, 165). As anticipated, the jury asked, "What were the plaintiffs lost wages from the time they were let go from their home health job from July 1st to 2017 to September 2017 when they took the bus attendant job?" (N.T., 10/20/2022, 163). In response to this question, the Court informed the jury to not consider wage loss. (N.T., 10/20/2022, 165).
After hearing the evidence presented at the trial, the jury found in favor of Appellant and against Appellee. (N.T., 10/20/2022, 167). The jury found thirty percent of the combined negligence was attributable to Appellant, and seventy percent of the combined negligence was attributable to Appellee, awarding Appellant four thousand and seven hundred dollars ($4,700.00) in economic damages. Id.
DISCUSSION
Appellant raises two issues on appeal. First, Appellant alleges that the Trial Court committed an error of law when it did not give the jury an instruction regarding wage loss damages. Second, Appellant alleges that the Trial Court committed an error of law when it gave the jury instructions on comparative negligence. Appellant is seeking new trials on damages and liability. It is respectfully suggested that the final judgment entered on January 27, 2023 be affirmed.
Regarding Appellant's first claim that the Trial Court erred as a matter of law when it did not give the jury instruction related to wage loss, "[The] standard of review regarding jury instructions is limited to determining whether the trial court committed a clear abuse of discretion or error which controlled the outcome of the case." Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015). "Objections to jury instructions must be made before the jury retires to deliberate, unless the trial court specifically allows otherwise." Pa.R.C.P. 227(b); See Passarello v. Grumbine, 87 A.3d 285, 292 (2014). Where a party fails to object, the objection is deemed waived and cannot be raised on appeal. Cruz v. Northeastern Hospital, 801 A.2d 602, 610-611 (Pa. Super. 2002) (quoting Randt v. Abex Corporation, 671 A.2d 228, 232 (Pa. Super. 1996)).
Here, the record accurately reflects that Appellant's counsel did not object to the jury instructions, which did not include the wage loss jury instruction, after they were read.
[5] THE COURT: Was there any
[6] objection to the jury instructions?
[7] Were there any issues?
[8] MR. KAMINSKY: I didn't have
[9] any.
(N.T., 10/20/2022, 148).
Counsel for Plaintiff first made his objection to the denial of the wage loss instruction when the jury was already deliberating.
THE COURT:
[16] This is going to be
[17] to be my ruling.
[18] Since we weren't instructed on
[19] lost wages, that has been waived and
[20] it's not to be considered by the jury,
[21] so I'm not going to say that to the
[22] jury. I'm just going to tell them that
[23] lost wages cannot be considered as part
[24] of the economic damages.
[25] MR. KAMINSKY: If I can just
[1] place my objection on the record.(N. T ., 10/20/2022, 164-165). From the record, it is apparent that Appellant failed to object to the loss wages jury instruction not being given to the jury at the appropriate time. Trial Court did not abuse its discretion nor err. Therefore, Appellant's claim was waived, cannot be first raised on appeal, and must fail.
Assuming, arguendo, Appellant timely objected to not instructing the jury on the wage loss instruction, the Trial Court did not abuse its discretion nor err because the evidence provided by Appellant at trial did not warrant the instruction to be given.
"The law does not permit a damages award to be based on mere guesswork or speculation, but rather requires a reasonable basis to support such an award." Helpin v. Trustees of Univ. of Pennsylvania, 10 A.3d 267, 270 (2010). "A court is bound to charge the jury 'only on the law applicable to the factual parameters of a particular case and that it may not instruct the jury on inapplicable legal issues.'" MacNutt v. Temple Univ. Hosp., Inc., 932 A.2d 980, 991 (Pa. Super. 2007), (quoting Angelo v. Diamontoni, 871 A.2d 1276, 1279 (Pa. Super.2005), appeal denied, 889 A.2d 87 (2005). The standard civil jury instruction regarding past and future loss of earnings or earning capacity is as follows:
"Past loss of earnings is the difference between the following two amounts:
1.the total [name of plaintiff) would likely have earned [in wages, compensation, and fringe benefits] from the time of the [harm] [injury] to today, but for the [harm] [injury] [name of defendant] caused; and
2.the total [name of plaintiff] earned [in wages, compensation, and fringe benefits] from the time of the [harm] [injury] to today."Pa. SSJI (Civ), §7.40.
In the instant matter, Appellant testified that she worked forty-two hours during the week after the car accident. (N.T., 10/20/2022, 71). Appellant further testified that she worked several jobs since the car accident, including as a bus attendant from September 2017 to February of 2018. (N.T., 10/20/2022, 72). The record is devoid of any evidence presented by Appellant that shows the specific periods of time she did not work after the accident but for the injuries sustained, nor the amounts of which she would have likely earned but for the injuries sustained. Appellant's expert witness stated in the video presented to the jury that Appellant had to stop working in or around 2017 due to childcare issues. The fact the jury asked the question regarding the amounts of the loss wages is in further support of the fact no such evidence was provided by Appellant regarding the specific wage loss totals that would be necessary to compute the damages. Therefore, even in the event Appellant is found to have timely objected to the denial of the loss wages instruction, due to the lack of evidence presented by Plaintiff, the Trial Court did not abuse its discretion in not instructing the jury on wage loss. Thus, the Appellant's claim lacks merit.
Regarding Appellant's second claim that the Trial Court erred as a matter of law when it instructed the jury as to comparative negligence, it is the same standard of review as the first issue. Krepps, 112 A.3d 1246, 1256. Generally, a party who does not make an objection in the trial court to the given jury instructions cannot complain of the instructions on appeal. See Broxie v. Household Finance Co., 372 A.2d 741 (1977); Harding v. Consolidated Rail Corp., 620 A.2d 1185 (Pa. Super. 1993). "Objections to jury instructions must be made before the jury retires to deliberate, unless the trial court specifically allows otherwise." Pa.R.C.P. 227(b); See Passarello. 87 A.3d 285, 292 (2014). Where a party fails to object, the objection is deemed waived and cannot be raised on appeal. Cruz, 801 A.2d 602, 610-611 (quoting Randt, 671 A.2d 228, 232).
In the instant matter, Appellant waived the issue of whether the Trial Court erred in giving the comparative negligence jury instruction when Appellant's counsel did not make the objection to the jury charge a part of the record at the appropriate time. The notes of testimony are devoid of any such objection. The notes of testimony further reflect that Appellant's counsel in his closing arguments discusses comparative negligence to the jury. (N.T., 10/20/2022, 100, 102). Trial Court did not abuse its discretion nor err. Therefore, Appellant's claim was waived, cannot be first raised on appeal, and must fail. Assuming, arguendo, Appellant did not waive his objection to the comparative negligence charge being given to the jury, the Trial Court did not abuse its discretion nor err when it instructed the jury on comparative negligence because the testimony of the witnesses at trial warranted such.
"The law is clear that a trial court must instruct the jury on comparative negligence whenever there is any such evidence of negligence on the part of the plaintiff." Eichman v. McKeon, 824 A.2d 305, 318-19 (2003); See Zieber v. Bogert 747 A.2d 905 (Pa. Super. 2000), aff'd, 773 A.2d 758 (2001). "Even minimal evidence of comparative negligence requires a charge on the issue when requested." Id.
In the instant matter, the Trial Court instructing the jury on comparative negligence was proper because the trial testimony of the Appellee and the Witness pointed towards Appellant being negligent. Appellee testified that Appellant applied her brakes out of nowhere, which caused him to brake. Witness testified that he did not recall seeing anything ahead of them to cause Appellant to brake, and that he recalled seeing Appellant's brake lights first and then Appellee's. Witness also testified from his recollection that he assumed Appellant applied her brakes in response to the large tractor trailer passing her on her left. It is because of the testimony provided regarding this motor vehicle accident, that the Trial Court properly instructed the jury as to comparative negligence. From the record, it is apparent that the trial testimony warranted an instruction on comparative negligence. Therefore, even in the event Appellant did not waive any objection to the comparative negligence charge, the court did not abuse its discretion nor err when it instructed the jury on comparative negligence. Thus, the Appellant's claim lacks merit.
Lastly, Appellant is seeking new trials on damages and liability. "[The] standard of review of a trial court's denial of a motion for a new trial is 'whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.'" O'Sullivan v. Joy Techs., Inc., 666 A.2d 664, 670 (1995) (quoting Palange v. City of Philadelphia Law Dept, 640 A.2d 1305, 1307 (1994)).
As discussed above, in the event it is determined Appellant did not waive the issues on appeal, the Trial Court did not abuse its discretion nor err when not giving the wage loss instruction and when giving the comparative negligence instruction. Therefore, relief seeking new trials on damages and liability should not be granted.
CONCLUSION
Based on the forgoing, it is respectfully suggested that final judgment entered on January 27, 2023 be affirmed.
Retired Senior Judge assigned to the Superior Court.