Opinion
J-S16020-18 No. 1067 MDA 2017
04-03-2018
MARGARET ANTHONY AND CARMEN ANTHONY Appellants v. SAM RIZZO AND LISA ZAVADA RIZZO
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered August 16, 2017
In the Court of Common Pleas of Luzerne County Civil Division at No(s): 12175-CV-2015 BEFORE: BOWES, J., MURRAY, J., and PLATT, J. MEMORANDUM BY MURRAY, J.:
Retired Senior Judge assigned to the Superior Court.
Margaret Anthony and Carmen Anthony (Appellants) appeal from the judgment entered after a jury awarded them $0 damages in this negligence action. Upon careful review, we affirm.
Appellants purported to appeal from the June 6, 2017 order denying their motion for post-trial relief. That order is interlocutory, as an appeal properly lies from the entry of judgment, not from the denial of post-trial motions. See Pa.R.A.P. 301(a)(1), (c), (d); Prime Medica Assoc. v. Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009). Judgment was properly entered on August 16, 2017, and we have amended the caption accordingly.
This case arises from an alleged dog bite attributed to a standard poodle owned by Sam Rizzo and Lisa Zavada Rizzo (the Rizzos). Margaret Anthony was employed by the Rizzos as a house cleaner, and on May 23, 2014, Appellants arrived together at the Rizzos' home. Lisa Rizzo was in her car and the dog was unrestrained in the rear seat with the windows open. Lisa greeted Margaret as Lisa backed out of the driveway, and Margaret approached the car. The dog barked from the rear driver's side as Margaret approached; the dog then came into contact with Margaret's right forearm.
That same day, Margaret treated with family physician Dr. Alan L. Boonin for what she described as a dog bite. Dr. Boonin diagnosed Margaret with an avulsion, or tearing of the skin, on her right forearm, and he cleaned the area, applied steri-strips, prescribed antibiotics and administered a tetanus booster shot. N.T., 4/18/17, at 71-73. Margaret had a follow-up visit with Dr. Boonin approximately one month later, on June 15, 2014, when Dr. Boonin observed that Margaret appeared to be healing. He did not refer Margaret to a plastic surgeon to discuss scarring-related issues.
Appellants initiated a lawsuit on October 29, 2015, raising a claim of negligence against the Rizzos. They alleged, inter alia, that Margaret suffered injuries as a result of the bite from the Rizzos' dog. On April 4, 2017, Appellants filed a motion to preclude a verdict slip question and jury instruction on factual cause, which the trial court denied.
Appellants' complaint also included counts of negligence per se, premises liability, punitive damages, and loss of consortium for Carmen Anthony. Only the issue of negligence was presented to the jury and included in the verdict slip.
Trial commenced on April 18, 2017. Margaret testified that the dog lunged out of the car window and bit her twice on the forearm, causing her to bleed and sustain scarring. Margaret testified that she suffered from mental anguish and embarrassment as a result of the incident. Margaret's sister, Marlene Snedeker, testified that Margaret became fearful following the incident and she no longer enjoyed walks through their neighborhood. Appellants also called Dr. Boonin as a fact witness regarding his personal observations and medical records for Margaret.
Appellants additionally called Lisa Rizzo to testify as if on cross-examination. Lisa testified that Margaret rested her arm on the window while the dog was barking, and that Margaret's injury was nothing more than a minor scratch with only minimal bleeding. N.T., 4/18/17, at 57-59. She stated that she offered to wipe the affected area with a tissue, but Margaret said she planned to clean it with alcohol inside Lisa's home. Id. at 57-58.
Lisa testified again during the Rizzos' case in chief, and provided the same account of the incident. Neither party introduced any expert testimony.
In its jury instructions, the trial court instructed on factual causation as follows, in relevant part:
In order for the [Appellants] to recover in this case, the [Rizzos'] negligent conduct must have been a factual cause in bringing about the harm. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. To be a factual cause, the conduct must have been an actual real factor in causing the harm, even if the result is unusual or unexpected.N.T., 4/19/17, at 181-82.
A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the harm. To be a factual cause, the [Rizzos'] conduct need not be the only factual cause. The fact that some other causes — the fact that some other causes concur with the [Rizzos'] negligence in producing an injury does not relieve the [Rizzos] from liability, as long as their own negligence is a factual cause of the injury.
As reflected on the verdict slip, the jury found that the Rizzos were negligent and that their negligence was a factual cause of any harm to Margaret. However, the jury further found that 50% of the causal negligence was attributable to Margaret and 50% was attributable to the Rizzos, and that the total amount of damages sustained by Margaret as a result of the incident was $0.
Appellants filed a timely motion for post-trial relief on April 28, 2017 seeking, inter alia, a new trial on the issue of damages. The Rizzos filed an answer. The trial court entered an order dated June 6, 2017 denying Appellants' post-trial motion. Appellants filed a notice of appeal, and subsequently complied with the court's Pa.R.A.P. 1925 order to file a concise statement of errors complained of on appeal. On August 15, 2017, this Court issued an order directing Appellants to praecipe for judgment in accordance with the trial court's June 6, 2017 order, and final judgment was entered on the trial court docket on August 16, 2017. The trial court subsequently issued a Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
A. Whether the trial court abused its discretion and/or committed an error of law in denying [Appellants'] motion to preclude a verdict slip question and jury instruction on factual cause when it was uncontroverted that [Margaret] has suffered some injury as a result of the subject incident.
B. Whether the trial court abused its discretion and/or
committed an error of law in denying [Appellants'] motion for post-trial relief seeking a new trial on damages since the jury's verdict was so contrary to the evidence that it shocks one's sense of justice.Appellants' Brief at 4 (unnecessary capitalization and suggested answers omitted).
In their first issue, Appellants argue that the trial court erred in charging the jury with an instruction on factual cause when it was undisputed that Margaret suffered some injury as a result of the incident. Appellants contend that the instruction and verdict slip "did nothing more than confuse the jury and result[ ] in a jury verdict that is against the weight of the evidence." Id. at 10.
We recognize:
Our standard of review regarding jury instructions is limited to determining whether the trial court committed a clear abuse of discretion or error of law which controlled the outcome of the case. Error in a charge occurs when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Conversely, "[a] jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations."
The proper test is not whether certain portions or isolated excerpts taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.
Krepps v. Snyder , 112 A.3d 1246, 1256 (Pa. Super. 2015) (citations and some quotation marks omitted), appeal denied , 125 A.3d 778 (Pa. 2015). Further, "[w]hile we recognize that the [Pennsylvania Standard Jury Instructions] are not binding on trial courts, [they] are nonetheless instructive." Gorman v. Costello , 929 A.2d 1208, 1213 (Pa. Super. 2007).
In other words, there is no right to have any particular form of instruction given; it is enough that the charge clearly and accurately explains the relevant law.
Here, our review reveals that the trial court's jury instruction on factual cause was nearly identical to Pennsylvania Standard Jury Instruction 13.20 (Civ. 2017). The trial court rejected Appellants' argument that an instruction on factual causation misled or confused the jury, stating:
Appellants argued that, if the jury found [the Rizzos] negligent, it must find that such negligence was the factual cause of Margaret[]'s injury. Indeed, following deliberations, the jury concluded that [the Rizzos'] negligence was a factual cause of Margaret[]'s injury. Any alleged legal error or unjust result that Appellants wanted to avoid . . . never came to fruition because the jury held that [the Rizzos'] conduct was a factual cause of any injury.Trial Court Opinion, 10/24/17, at 11-12.
Upon review of the charge as a whole, we conclude that the trial court provided an adequate instruction for factual cause to sufficiently guide the jury in its deliberations. See Krepps , 112 A.3d at 1256. Even if an error occurred, we would agree with the trial court's conclusion that such error would be harmless because the jury found that the Rizzos' negligence was a factual cause of the harm to Margaret. See Bennett v. A.T. Masterpiece Homes at Broadsprings , LLC , 40 A.3d 145, 149-50 (Pa. Super. 2012) (post-trial request for new trial requires a showing of actual prejudice resulting from an erroneous ruling, and this Court "will not reverse an order denying a new trial unless the trial court committed an error of law that controlled the outcome of the case"). Accordingly, Appellants' first argument is without merit.
Next, Appellants argue that the jury's verdict was against the weight of the evidence. Specifically, they contend that the jury was required to award damages upon finding the Rizzos negligent and their negligence a factual cause of Margaret's harm. Appellants argue that Margaret's injuries, including obvious and apparent scarring, are compensable and "more severe than a muscle strain/sprain that resolves within a short period of time." Appellants' Brief at 19. In support, Appellants rely in part on this Court's decision in Caselli v. Powlen , 937 A.2d 1137 (Pa. Super. 2007), for the propositions that a "jury is not free to ignore an obvious injury," and that an award of $0 "represents a finding by the jury that . . . [Margaret] experienced absolutely no compensable pain. . . ." Appellant's Brief at 18, quoting Caselli , 937 A.2d at 1139, 1140.
In considering whether the jury's verdict was against the weight of the evidence, we are mindful that:
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; a mere conflict in testimony will not suffice as grounds for a new trial. Upon review, the test is not whether this Court would have reached the same result on the evidence presented, but, rather, after due consideration of the evidence found credible by the [jury], and viewing the evidence in the light most favorable to the verdict winner, whether the court could reasonably have reached its conclusion. Our standard of review in denying a motion for a new trial is to decide whether the
trial court committed an error of law which controlled the outcome of the case or committed an abuse of discretion.Elliott v. Ionta , 869 A.2d 502, 504 (Pa. Super. 2005) (internal citations omitted).
In the Casselli decision cited by Appellants, a pedestrian initiated a negligence action after he fell on the sidewalk outside of a property owner's residence and incurred $1,578 in medical expenses. Casselli , 937 A.2d at 1138. The pedestrian suffered a broken bone in his foot, and the property owner did not dispute that the injury was caused by the fall or that the pedestrian's medical treatment was reasonable. Id. at 1140. The jury found that the pedestrian and property owner were each 50% negligent in causing the fall, but nevertheless awarded $0 in damages. Id. at 1138. On appeal, this Court noted: "[W]here a defendant concedes liability and his or her expert concedes injury resulting from the accident that would reasonably be expected to cause compensable pain and suffering, the jury's verdict is against the weight of the evidence where it finds for the defendant." Id. (emphasis removed, other emphasis added) (citation omitted). We then held that the jury's $0 verdict was against the weight of the evidence where causation was conceded, a broken bone is a type of injury "to which human experience teaches there is accompanying pain," and the property owner agreed that the pedestrian's medical treatment was reasonable. Id. at 1139 (citation omitted).
After thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, we conclude that Appellants' challenge to the weight of the verdict does not merit relief.
Appellants did not offer any expert testimony in support of their claim of compensable pain, relying exclusively on fact witnesses. The trial court opinion thoroughly addresses and refutes Appellants' contentions. See Trial Court Opinion, 10/24/17, at 12-25 (stating that contrary to Appellants' argument, "[a] jury is not compelled to believe that a dog bite . . . causes compensable pain," Boggavarapu v. Ponist , 542 A.2d 516, 518 (Pa. 1988), and "the existence of compensable pain is an issue of credibility and juries must believe that plaintiffs suffered pain before they compensate for that pain," Majczyk v. Oesch , 789 A.2d 717 (Pa. Super. 2001); and noting that Appellants presented no expert medical testimony about any pain suffered by Margaret, the Rizzos testified that Margaret suffered a mere scratch that was a minor injury, and the jury was free to believe all, part, or none of the evidence, see id. at 725-26).
We further hold that Casselli is distinguishable — in that case, the broken bone suffered by the pedestrian was specifically noted as an injury recognized by common experience as a source of pain and suffering - whereas in the instant matter, Margaret's dog bite or scratch could be found, as a matter of law, to carry no compensable pain. See Boggavarapu , 542 A.2d at 518. Because the Honorable Lesa S. Gelb, sitting as the trial court, has authored an excellent analysis of Appellants' second issue, we adopt the opinion as our own. The parties shall attach a copy of the trial court's opinion dated October 24, 2017, to all future filings in this matter that cite this memorandum.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/3/2018
Image materials not available for display.