Opinion
No. 1327 C.D. 2011
05-18-2012
Joseph J. Anastasi and Erica Anastasi, Appellants v. Old Forge Borough
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE J. WESLEY OLER, Jr., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellants, Joseph and Erica Anastasi, husband and wife (Appellants), appeal from an order of the Court of Common Pleas of Lackawanna County (trial court), dated June 21, 2011, denying their motion for a new trial limited to damages or, in the alternative, a new trial on liability and damages. For the reasons set forth below, we reverse and remand the matter for a new trial consistent with this opinion.
We note that Appellants' post-trial motion to the trial court requested a new trial limited to damages, or in the alternative, a new trial on all issues of liability and damages. On appeal to this Court, however, Appellants limited their argument to a new trial on damages only.
This case involves an injury to Joseph Anastasi (Anastasi) that resulted from a defective condition on a public road in Old Forge, Pennsylvania, Lackawanna County. Old Forge Borough (Borough) constructed a culvert in order to accommodate ground water flow on Bennett Street in Old Forge, Pennsylvania. (Reproduced Record (R.R.) at 7.) In front of 1216 Bennett Street (the Property), the Borough installed a drainage pipe with a black top to allow vehicles and pedestrians access from the Property's driveway over the culvert and onto Bennett Street. (Id.) The Borough installed the drainage pipe below the surface of the culvert and dug a hole and depression near the driveway of the Property in order to allow surface water to drain from the culvert into the drainage pipe. (Id.) The hole was the ultimate cause of Anastasi's injury. Anastasi's first wife, Jocelyn Suydam, resides at the Property, and Anastasi's left foot fell into the hole while he was dropping off his daughter at the Property on April 5, 2005. (Id. at 32, 39.)
Anastasi received medical treatment on the evening of April 5, 2005, at the Community Medical Center in Scranton, Pennsylvania. (Id. at 40.) In the following days, Anastasi visited Eugene J. Chiavacci, M.D., who ultimately became his treating physician. (Id. at 42.) Dr. Chiavacci diagnosed Anastasi with a midrange tear in his upper Achilles tendon between grade II and III. (Id.) Anastasi was placed in a cast. (Id. at 42.)
During the jury trial before the trial court, Anastasi testified regarding his injury, including the pain, casting, and prescribed treatment. (Id. at 40, 41, 43-44.) Specifically, Anastasi testified that the initial fall caused him excruciating pain. (Id. at 39-40.) Upon his arrival at his own home, Anastasi stated that as he put weight on his left leg, he felt instant pain and "literally sort of crawled to [his] porch." (Id. at 40.) He testified regarding how the injury affected his employment as a used car salesman and owner of a used car dealership. (Id. at 44.) In addition, Anastasi described how the injury limited his involvement in martial arts, his main hobby. (Id. at 116, 118.)
Dr. Chiavacci and Lucien Bednarz, M.D., provided expert testimony regarding Anastasi's injury during the trial. Dr. Chiavacci, a board certified orthopedic surgeon, testified that during Anastasi's initial visit, he observed swelling in Anastasi's lower left leg with muscular tendinous junction of the left Achilles. (Id. at 159.) Dr. Chiavacci recommended a conservative treatment plan, which included casting the lower left leg. (Id.) Dr. Chiavacci noted that some fibers in the tendon were intact, but many had torn during the incident. (Id. at 160.) Dr. Chiavacci described Anastasi's type of injury as painful. (Id.) In addition to the cast, Dr. Chiavacci recommended physical therapy treatment. (Id. at 166.) One year after the injury, Anastasi continued to have soreness in the left Achilles tendon area, according to Dr. Chiavacci. (Id. at 166-67.) Finally, Dr. Chiavacci opined that the tear in Anastasi's Achilles tendon was the result of falling into the hole and, further, that Anastasi will likely have permanent injury. (Id. at 170.)
Dr. Bednarz, a board certified physical medicine and rehabilitation specialist responsible for managing musculoskeletal injuries and impairments in a nonsurgical fashion, testified that he performed an independent medical examination of Anastasi on March 3, 2010. (Id. at 290, 292 and 297.) Upon examination, Dr. Bednarz noted that Anastasi's injury occurred when Anastasi stepped into a hole and twisted his left ankle. (Id. at 299, 348.) Dr. Bednarz concluded that Anastasi had a disruption of his left Achilles tendon. (Id. at 301.) Dr. Bednarz characterized Anastasi's injury as a soft tissue sprain or strain of the Achilles tendon. (Id. at 302.) Dr. Bednarz agreed with Dr. Chiavacci's selected course of treatment of the injury. (Id. at 305.)
Dr. Bednarz, however, noted that Anastasi had only attended a portion of his prescribed physical therapy sessions, which likely affected his recovery. (Id. at 307-08.) Further, Anastasi was discharged from his first physical therapy center, Allied Services, for noncompliance. (Id. at 309.) Dr. Bednarz concluded that Anastasi's injury was not permanent in nature, that he reached a maximum level of recovery from the injury, and that he did not need further medical treatment. (Id. at 317.)
At the conclusion of the trial, the jury was given a verdict interrogatory sheet containing six questions. (Certified Record (C.R.), Item No. 31.) The jury placed liability on the Borough and also found the Borough's negligence to be the cause of Anastasi's injury. (Id.) However, the jury also found Anastasi to be contributorily negligent and assessed both parties with fifty (50) percent liability. (Id.) The jury awarded zero damages to Anastasi and zero damages to Erica Anastasi. (Id.)
Following the jury verdict, Appellants motioned for a new trial on the issue of damages only or, in the alternative, a new trial on all liability and damages. (R.R. at 465.) Appellants argued that a jury verdict attributing liability to the Borough was inconsistent with an award of zero damages based on Anastasi's injury. (R.R. at 463, 465.) The trial court denied Appellants' motion, concluding that the conflicting expert testimony and lack of evidence of out of pocket expenses supported the jury's award of zero damages. (Id. at 472.) This type of injury, the trial court explained, was "a transient rub of life for which compensation was not warranted." See Lombardo v. DeLeon, 828 A.2d 372 (Pa. Super. 2003), appeal denied, 579 Pa. 704, 857 A.2d 679 (2004); Campagna v. Rogan, 829 A.2d 322 (Pa. Super. 2003). The trial court entered judgment in favor of the Borough on July 3, 2011. (R.R. at 4.)
On appeal, Appellants contend that the trial court abused its discretion in denying Appellants' motion for a new trial when the jury placed liability on the Borough, found that Anastasi's injury resulted from the Borough's defective condition, but nevertheless awarded zero damages. We agree.
Trial courts have broad discretion to grant or deny a new trial. Harman ex rel. Harman v. Boarah, 562 Pa. 455, 465, 756 A.2d 1116, 1121 (2000) (citing Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998)). Further, an allegation that a verdict is against the weight of the evidence is also addressed to the discretion of the trial court. Commonwealth v. Gavin, 603 Pa. 625, 641, 985 A.2d 783, 793 (2009). A new trial based on weight of the evidence issues will not be granted unless the verdict is so contrary to the evidence as to shock one's sense of justice. Id. Appellate review is limited to determining whether the trial court abused its discretion in ruling on the weight of the claim, and not the underlying question of whether the verdict is against the weight of the evidence. Id.
At the outset, this Court is extremely hesitant to overturn a jury verdict as we lack the vantage point to view evidence and assess witness credibility. See Matheny v. West Shore Country Club, 648 A.2d 24, 24-25 (Pa. Super.), appeal denied, 540 Pa. 601, 655 A.2d 990 (1994). When a trial court refuses to grant relief against an allegedly inadequate verdict, an appellate court will exercise great caution in reviewing its action. Id. at 25. However, upon review of the evidence in this case as well as our critical analysis of similar precedent, we do not believe the jury's verdict can stand in light of the undisputed evidence.
As a general proposition, victims indeed must be compensated for all that they lose and all that they suffer from the tort of another. Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988) (citing Spangler v. Helm's New York-Pittsburgh Motor Exp., 396 Pa. 482, 153 A.2d 490 (1959)). In that proposition is subsumed the notion that victims have suffered loss and that compensable pain was inflicted. Boggavarapu, 518 Pa. at 167, 542 A.2d at 518. At the same time, "[w]hile a jury may conclude that a plaintiff has suffered some painful inconvenience for a few days or weeks after the accident, it may also conclude that the discomfort was the sort of 'transient rub of life for which compensation is not warranted.'" Lombardo, 828 A.2d at 375. As a result, courts have upheld an award of zero damages. See Holland v. Zelnick, 478 A.2d 885 (Pa. Super. 1984); Boggavarapu, 518 Pa. at 168, 542 A.2d at 519.
With that in mind, this Court recognizes that not all injuries are serious enough to warrant compensation, even though there may be some pain. See Van Kirk v. O'Toole, 857 A.2d 183, 186 (Pa. Super. 2004), appeal denied, 583 Pa. 683, 877 A.2d 462 (2005). "The real test is whether the uncontroverted injuries are such that a conclusion that they are so minor that no compensation is warranted defies common sense and logic." Id. at 185 (emphasis added). Accordingly, such conclusions are made on a case by case basis. In such cases where pain was not compensable, many factors, including the credibility of the plaintiff and the cause or existence of an injury, were at issue. Id. at 186-87; see also Boggavarapu, 518 Pa. at 167, 542 A.2d at 518 (where injury complained of was dog bite and issue arose of whether pain resulted from dog bite itself or residual effects of tetanus shot). Similarly, in cases where a zero damages award was upheld, both the existence and cause of the pain were contested. See Hawley v. Donahoo, 611 A.2d 311, 314 (Pa. Super. 1992); see also Boggavarapu, 518 Pa. at 168, 542 Pa. at 519 (stating that jury is not obligated to believe that every injury causes pain or caused pain alleged).
In cases where the cause and existence of pain is undisputed, however, an award of zero damages historically has been overturned. Casselli v. Powlen, 937 A.2d 1137 (Pa. Super. 2007); Nykiel v. Heyl, 838 A.2d 808 (Pa. Super. 2003); Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). Specifically, where injury is not disputed, courts have repeatedly stated as follows:
[T]here are injuries to which human experience teaches us there is accompanying pain. Those injuries are obvious in the most ordinary sense: the broken bone, the stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, and all the consequences of any injury traceable by medical science and common experience as sources of pain and suffering.Boggavarapu, 518 Pa. at 167, 542 A.2d at 518 (citations omitted). While it is true that the jury is the final arbiter of facts, it may not, in law, ignore what is patent to the eye, obvious to the mind, and clear to the normal processes of ordinary computation, such as pain, suffering, and inconvenience. Thompson v. Iannuzzi, 403 Pa. 329, 332, 169 A.2d 777, 778 (1961). In other words, a jury may not disregard obvious injury. Boggavarapu, 518 Pa. at 167, 542 A.2d at 518.
Our Superior Court addressed the issue of an uncontested injury and a resulting award of zero damages in Casselli. The plaintiff in Casselli suffered an undisputed broken bone in his left foot. Casselli, 937 A.2d at 1138. The defendant's counsel admitted that a defective sidewalk outside of the defendant's home caused the plaintiff's injury and further that the medical treatment received for the treatment was "reasonable." Id. at 1140. The jury found both parties equally at fault and awarded zero damages. Id. at 1138. On the issue of whether the denial of a new trial was appropriate, the Superior Court distinguished the facts before it from other cases where a zero damages award was upheld. Specifically, the court stated that, "[plaintiff] does not seek to recover damages purely for pain and suffering attributable to an injury of an unknown source or to an injury whose very occurrence is challenged. Rather, [plaintiff] seeks to recover damages with respect to a documented and admitted injury." Id. With respect to the jury's award of zero damages, the Superior Court in Casselli noted the following:
[T]he only basis upon which a jury could have possibly awarded 'zero' damages is upon a finding that [plaintiff]'s particular broken bone justified no medical attention and caused no pain whatsoever. Such a finding by the jury in this case is against the weight of the evidence and every day logic . . . .Id. at 1140-41.
. . . .
Thus, we do not say that the jury had to accept [plaintiff]'s testimony concerning the effects that his injury had on his day-to-day life, as to the duration of those effects, or even as to the levels or extent of pain which he experienced. Even the absence of a dispute as to the extent of the medical expenses that [plaintiff] reasonably incurred did not compel the jury to accept the fact that all such damages were necessitated by the injury. But zero is a special number. Here, an award of zero damages to [plaintiff] . . . with respect to a documented broken bone in his foot, admittedly from his fall, represents a finding by the jury that absolutely none of the medical expenses incurred by [plaintiff] for the medical treatment of the broken bone in his foot were related to that fall and that [plaintiff] experienced absolutely no compensable pain whatsoever as a consequence thereof. Such is totally contrary to human experience and is in total conflict with the laws of this Commonwealth.
Similarly, our Supreme Court had an opportunity to review a factually similar situation to the one at hand in Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). In Neison, the defendant injured the plaintiff when the defendant's vehicle struck the plaintiff's vehicle from the rear. Neison, 539 Pa. at 518, 653 A.2d at 636. Subsequent to the injury, the plaintiff continued with medical treatment for a cervical strain. Id. at 519, 653 A.2d at 636. The plaintiff's treating physicians prescribed a home exercise program to strengthen the injured soft tissue, and the plaintiff continued working throughout her treatment. Id., 653 A.2d at 636. At trial, the defendant admitted liability, and the only issue for the jury to determine was the amount of damages due to the plaintiff for pain and suffering. Id., 653 A.2d at 636. The plaintiff's expert witnesses opined that the injuries suffered by the plaintiff were caused by the defendant. Id., 653 A.2d at 636. The defendant's expert witness, an orthopedic surgeon, concluded that, while the plaintiff had sustained a neck sprain and shoulder blade sprain, the plaintiff's injuries had healed. Id., 653 A.2d at 636. The jury awarded zero damages. Id., 653 A.2d at 636. On appeal, the issue was whether the Superior Court erred in reversing the trial court's order, which granted a new trial. Id., 653 A.2d at 636.
In ruling that the Superior Court abused its discretion in reversing the trial court's order, our Supreme Court reasoned as follows:
We agree that the jury is free to believe all, some, or none of the testimony presented by a witness. However, this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial. The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.Id. at 520-21, 653 A.2d at 637 (citations omitted). Accordingly, the Supreme Court concluded that, based on the uncontested evidence that the plaintiff was involved in an accident caused by the defendant, the jury award of zero dollars bore no rational relationship to the evidence produced at trial. Id. at 523, 653 A.2d at 638. Furthermore, the Supreme Court reasoned that the medical testimony of both parties established that the plaintiff suffered from objective injuries, the defense expert only disagreeing as to their extent and, as a result, zero damages was inappropriate. Id. at 524, 653 A.2d at 639.
Here, a torn Achilles tendon must be classified as an injury that is "traceable by medical science and common experience as a source of pain and suffering." Boggavarapu, 518 Pa. 167, 542 A.2d at 518. Similar to Neison and Casselli, the uncontested evidence in the record proves that Anastasi suffered a painful injury from the accident. Anastasi's injury is documented and admitted. Casselli, 937 A.2d at 1138. Moreover, the jury specifically found the Borough's negligence to be the cause of Anastasi's injury. As a result of the Borough's negligence, Anastasi endured pain and was placed in a cast, which is evidenced by the testimony of Anastasi, Dr. Chiavacci, and Dr. Bednarz. Simply stated and based on established precedent, an award of zero damages for an injury such as Anastasi's is so disproportionate to the uncontested evidence that it defies common sense and logic. Neison, 539 Pa. at 520-21, 653 A.2d at 637. Moreover, an award of zero damages would represent a finding by the jury that Anastasi's injury warranted no medical treatment and further that he suffered no pain whatsoever. Casselli, 937 A.2d at 1140-41. Such a conclusion is contrary to human experience. Id. In fact, the evidence in the record is undisputed that Anastasi's injury required medical treatment and caused substantial pain. Unlike cases where a zero damages award was upheld, this case involves no credibility issue or dispute as to the existence or cause of the pain.
Specifically, Dr. Chiavacci and Anastasi testified to Anastasi's injury as well as his pain. When asked if "an Achilles tendon tear is painful," Dr. Bednarz responded, "Yes." (R.R. at 328.) The Borough argues that Dr. Bednarz's statement was a general statement and not one related to Anastasi's injury. The evidence of Anastasi's pain, therefore, is undisputed. (Appellee's Brief at 3.) Moreover, Dr. Bednarz recognized Anastasi's injury as a result of the fall and agreed with Dr. Chiavacci's treatment. (R.R. at 299, 304, 348). Therefore, Anastasi's pain, injury, and medical treatment are undisputed.
The Borough also argues that the evidence in the record is conflicting as to the extent and severity of Anastasi's injury. As a result of the conflicting testimony, the Borough claims that the jury was free to disregard Anastasi's testimony and evidence that he suffered any damages as a result of his injury. While the conflicting testimony regarding the severity of the injury may reduce Appellants' damages, the jury cannot ignore Anastasi's obvious injury to his left Achilles tendon. Boggavarapu, 518 Pa. at 167, 542 A.2d at 518. At the very least, Dr. Bednarz acknowledged that Anastasi was injured from the fall and that the treatment for the injury was reasonable. (R.R. at 299, 348.) A disagreement as to the extent of an injury does not warrant an award of zero damages. Neison, 530 Pa. at 524, 653 A.2d at 639; Nykiel, 838 A.2d at 811; Casselli, 937 A.2d at 1140.
Finally, the Borough posits that Anastasi failed to present any evidence of compensable injury by failing to present evidence of medical bills, out of pocket expenses, or lost wages. However, as previously addressed, Anastasi and his treating physician testified to his injury, his treatment, and the pain associated with that injury. To rebut this testimony, Dr. Bednarz only disagreed to the extent of Anastasi's injury. Dr. Bednarz did not dispute the injury itself or the treatment. (R.R. at 299, 328, 335.) Accordingly, Anastasi is entitled to compensation for pain and suffering that the Borough caused as a result of the defective condition on the Property, regardless of his out of pocket expenses, or lack thereof. See Casselli, 937 A.2d at 1140.
The jury chose to disregard Anastasi's obvious and uncontested injury and failed to acknowledge any pain, suffering, and inconvenience resulting from the Borough's negligence. This was a clear error of law. The trial court, therefore, abused its discretion in denying a new trial.
We also distinguish our Supreme Court's holding in Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001), which provides that a jury award of medical expenses without compensation for pain and suffering "should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a preexisting condition or injury was the sole cause of the alleged pain and suffering." Davis, 563 Pa. at 391, 773 A.2d at 767. Here, the jury could not reasonably believe that Anastasi did not suffer pain because evidence of injury and pain is uncontested. Furthermore, there is no preexisting condition present which could be the cause of the pain.
We note that the Borough and the trial court characterized Anastasi's injury as a "transient rub of life," pursuant to Lombardo. Lombardo, 872 A.2d at 375. Yet, even the Lombardo Court recognized that a new trial is necessary when a jury awards zero damages for uncontested compensable injuries. Id. Furthermore, the Borough's remaining precedent is easily distinguished from the case at hand, primarily because much of the Borough's supporting precedent involves a dispute as to the cause and/or existence of injury, unlike the case at hand. See Majczyk v. Oesch, 789 A.2d 717, 719 (Pa. Super. 2001) (clarifying where defendant concedes liability and his or her expert concedes resulting injury that would reasonably be expected to cause compensable pain and suffering, jury's verdict is against weight of evidence where it finds for defendant). --------
In determining whether a new trial should be limited to damages, courts have stated that "[a] new trial limited to the issue of damages will be granted where: (1) the issue of damages is not 'intertwined' with the issue of liability; and (2) where the issue of liability has been 'fairly determined' or is 'free from doubt.' Gagliano v. Ditzler, 437 Pa. 230, 232-33, 263 A.2d 319, 320 (1970)." Nykiel, 838 A.2d at 811 (citing Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 8 (1994)).
Here, the issue of liability is not intertwined with the issue of damages, and liability has been "fairly determined" by the jury. The jury placed liability on the Borough and found the Borough's negligence to be the factual cause of Anastasi's injury. Because the jury's award of zero damages is against the weight of the evidence, the trial court abused its discretion in denying a new trial. A new trial limited to damages, therefore, should be awarded to Appellants.
Accordingly, we reverse the trial court's order and remand the matter to the trial court for a new trial limited to damages.
/s/_________
P. KEVIN BROBSON, Judge Judge Leadbetter dissents.
ORDER
AND NOW, this 18th day of May, 2012, the order of the Court of Common Pleas of Lackawanna County, denying Joseph and Erica Anastasi's motion for a new trial, is hereby REVERSED, and this matter is REMANDED for a new trial limited to the issue of damages.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge