Hennessy, P. v. Robertson, S.

J-A21013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICK L. HENNESSY, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAWN ROBERTSON, JR., SHAWN

ROBERTSON, BRUCE REIKOW, RYAN

CARUSO, FRANK D. CARUSO, AND

ROSETTA L. CARUSO, H/W,

APPEAL OF: RYAN CARUSO,

Appellant No. 3353 EDA 2013

Appeal from the Judgment Entered November 21, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 4451 January Term, 2011

BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 24, 2014

This negligence action arose from successive automobile accidents that

occurred minutes apart in the early morning hours of July 26, 2009. The

jury returned a $19 million-dollar verdict in favor of Patrick L. Hennessy and

against both Ryan Caruso and Shawn Robertson, Jr., finding them jointly

and severally liable for the above-the-knee amputation of Mr. Hennessy’s

right leg and other injuries. Mr. Caruso appeals and alleges that the trial

court erred in failing to apportion damages. He contends further that the

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*

Retired Senior Judge assigned to the Superior Court.

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court’s personal belief that the defendants were joint tortfeasors led to

erroneous evidentiary rulings, improper jury instructions, and a grossly

excessive verdict, which should have been remitted. After careful review,

we affirm.

At approximately 2:00 a.m. on the aforementioned date, Mr. Caruso

was driving his vehicle northbound on Roosevelt Boulevard in the City of

Philadelphia. Mr. Hennessy was seated in the front passenger seat.

Mr. Caruso rear-ended a vehicle driven by Bruce Reikow, which was stopped

at a red light, and both vehicles were disabled due to the collision. As

Mr. Hennessy and a passenger in the Reikow vehicle began to push the

Caruso vehicle to the shoulder of the road, a vehicle driven by Shawn

Robertson, Jr., also traveling northbound, struck the rear of Mr. Reikow’s

vehicle and careened into the left rear corner of Mr. Caruso’s vehicle,

crushing Mr. Hennessy’s right leg. After several weeks of medical treatment,

Mr. Hennessy underwent an above-the-knee amputation of that leg.1

Mr. Hennessy commenced this negligence action against Shawn

Robertson, Jr., Ryan Caruso, the owners of their vehicles, and Bruce Reikow.

He later voluntarily terminated the action against the vehicle owners, and

the trial court entered a non-suit in favor of Mr. Reikow. The jury returned a

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1

Mr. Hennessy filed a separate medical malpractice action against

physicians who treated him for injuries sustained in the motor vehicle

accidents, which was consolidated with this action. The medical malpractice

claims settled prior to trial.

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$19,145,904.17 verdict in favor of Mr. Hennessy and against Ryan Caruso

and Shawn Robertson, Jr., and attributed 45% of causal negligence to

Mr. Caruso and 55% to Mr. Robertson.2

Mr. Caruso filed a motion for post-trial relief seeking either judgment

notwithstanding the verdict (“n.o.v.”), a new trial, or a remittitur. The trial

court denied the motion, molded the verdict to include delay damages, and

entered judgment on the verdict on November 21, 2013. Mr. Caruso timely

appealed and the trial court issued an opinion in support of its denial of post-

trial relief.

Ryan Caruso presents ten issues on appeal:

1. Whether the Trial Court erred or abused its discretion in

failing to determine that damages were capable of

apportionment as between Defendant Ryan Caruso (“Caruso”)

and Defendant Shawn Robertson, Jr. (“Robertson”) so that

the jury could apportion damages between separate

tortfeasors, and whether Caruso is entitled to a new trial

based on the resulting prejudice?

2. Whether the Trial Court committed reversible error in

“allow[ing] the status of the two Defendants [Caruso and

Robertson] to be determined by the Jury,” and whether

Caruso is entitled to a new trial based on the resulting

prejudice?

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2

The amendments to the Pennsylvania Comparative Negligence Act, 42

Pa.C.S. § 7102, which effectively eliminated joint and several liability, were

not in effect when this action was commenced. The court instructed the jury

that, if it determined that Mr. Caruso and Mr. Robertson were both factual

causes of Mr. Hennessy’s injuries, it should allocate the percentages of

responsibility between the two tortfeasors. This allocation was only for

purposes of quantifying the defendants' respective contribution interests.

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3. Whether the Trial Court erred or abused its discretion in

allowing its personal belief that Caruso and Robertson were

joint tortfeasors to skew key evidentiary rulings, its

improvised jury instruction on causation and the jury verdict

slip against Caruso, and whether Caruso is entitled to a new

trial based on the resulting prejudice?

4. Whether the Trial Court erred or abused its discretion in

permitting an accident reconstruction expert to testify on

behalf of Plaintiff Patrick L. Hennessy (“Plaintiff”), and to

opine on the ultimate issue of causation, and whether Caruso

is entitled to a new trial based on the resulting prejudice?

5. Whether the Trial Court erred or abused its discretion in

excluding lay testimony regarding the speed of Robertson’s

vehicle at the time of the second accident that injured

Plaintiff, and in allowing testimony from Plaintiff’s expert that

rebutted the excluded testimony, thereby impeding Caruso’s

defense that Robertson was an intervening superseding cause

of Plaintiff’s injury, and whether Caruso is entitled to a new

trial based on the resulting prejudice?

6. Whether the Trial Court erred or abused its discretion in

failing to give Pennsylvania Standard Civil Jury Instruction

7.80, and in giving an improvised jury instruction on

causation, and whether Caruso is entitled to a new trial based

on the resulting prejudice?

7. Whether the Trial Court erred or abused its discretion in

failing to use the jury verdict slip proffered by Caruso, and in

using an improvised jury verdict slip, and whether Caruso is

entitled to a new trial based on the resulting prejudice?

8. Whether Caruso is entitled to judgment notwithstanding the

verdict or a new trial on the ground that liability was not

supported by the evidence and was against the clear weight

of the evidence?

9. Whether Caruso is entitled to a new trial on both liability and

damages?

10. Whether Caruso is entitled to remittitur due to the

excessiveness of the verdict?

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Appellant’s brief at 4-6.

The majority of Mr. Caruso’s claims implicate the trial court’s denial of

his motion for a new trial. The following principles govern our review of such

claims:

Consideration of all new trial claims is grounded firmly in the

harmless error doctrine "[which] underlies every decision to

grant or deny a new trial. A new trial is not warranted merely

because some irregularity occurred during the trial or another

trial judge would have ruled differently; the moving party must

demonstrate to the trial court that he or she has suffered

prejudice from the mistake." Harman ex rel. Harman v.

Borah, 562 Pa. 455, 756 A.2d 1116, 1122 (2000). Once the

trial court passes on the moving party's claim, the scope and

standard of appellate review coalesce in relation to the reasons

the trial court stated for the action it took. See id. Where the

court is presented with a finite set of reasons supporting or

opposing its disposition and the court limits its ruling by

reference to those same reasons, our scope of review is similarly

limited. See id. at 1123. Thus, "where the trial court

articulates a single mistake (or a finite set of mistakes), the

appellate court's review is limited in scope to the stated reason,

and the appellate court must review that reason under the

appropriate standard." Id. (quoting Morrison v. Com., Dept.

of Pub. Welfare, 538 Pa. 122, 646 A.2d 565, 571 (1994)).

Our standard of review prescribes the degree of scrutiny we

apply to the trial court's decision and the manner in which we

evaluate its conclusions. See id. at 1122 (citing Morrison, 646

A.2d at 570). If the trial court's challenged ruling was one of

law, we review its grant or denial of a new trial on that point to

discern if the court committed legal error. See id. at 1123.

Similarly, if the challenged ruling involved a discretionary act, we

review the disposition of the new trial motion relative to that act

for abuse of discretion. See id. "Discretion must be exercised

on the foundation of reason." Id.

Egan v. USI Mid-Atlantic, Inc., 92 A.3d 1, 11 (Pa.Super. 2014) (quoting

Rettger v. UPMC Shadyside, 991 A.2d 915, 923-24 (Pa.Super. 2010)).

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Mr. Caruso’s first and second issues are interrelated. He alleges first

that the trial court was obligated to rule on whether the damages were

capable of apportionment, and that its failure to do so was error. Second,

he contends that the court should have applied the factors delineated in

Neal v. Bavarian Motors, Inc., 882 A.2d 1022 (Pa.Super. 2005), and

found that apportionment was proper. Mr. Caruso points to undisputed

evidence that Mr. Hennessy was not injured in the first collision; the only

injury to Mr. Hennessy’s leg occurred during the second collision when

Mr. Robertson’s vehicle struck him as he was pushing the Caruso vehicle to

the berm. He contends that since the injuries from the first and second

collisions were divisible, the trial court should have apportioned the

damages. He further maintains that since the damages were capable of

apportionment, he and Mr. Robertson were separate tortfeasors, not joint

tortfeasors, and that he should not be subject to liability for the entire

verdict.3

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3

As this Court explained in Glomb v. Glomb, 530 A.2d 1362, 1365

(Pa.Super. 1987), “[i]mposition of joint and several liability enables the

injured party to satisfy an entire judgment against any one tort-feasor, even

if the wrongdoing of that tort-feasor contributed only a small part to the

harm inflicted. Apportionment of liability, on the other hand, limits the

liability of each tort-feasor to that portion of the harm which he or she

caused. Thus, if the court imposes joint and several liability, and if only one

of the joint tort-feasors is financially responsible, the injured party can

attempt to recover the full measure of damages against that single source.”

The law has changed. See footnote 2, supra.

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This Court has held that “[w]hether liability for harm to a plaintiff is

capable of apportionment is a question of law for the court, not a question of

fact for the jury.” Smith v. Pulcinella, 656 A.2d 494, 496-497 (Pa.Super.

1995) quoting Harka v. Nabati, 487 A.2d 432, 434 (Pa.Super. 1985) and

Voyles v. Corwin, 441 A.2d 381 (Pa.Super. 1982). In making that

determination, “courts consider several factors: the identity of a cause of

action against each of two or more defendants; the existence of a common

or like duty; whether the same evidence will support an action against each;

the single, indivisible nature of the injury to the plaintiffs; identity of the

facts as to time, place or result; whether the injury is direct and immediate,

rather than consequential; responsibility of the defendants for the same

injuria as distinguished from the same damnum.” Neal, supra at 1027

(quoting Voyles, supra and citing Prosser, Law of Torts, § 46 n. 2 (4th ed.

1971)). “A court can direct the apportionment of liability among distinct

causes only when the injured party suffers distinct harms or when the court

is able to identify ‘a reasonable basis for determining the contribution of

each cause to a single harm.’” Restatement (Second) of Torts § 433A(1)

(1965). Glomb v. Glomb, 530 A.2d 1362, 1365 (Pa.Super. 1987).

Preliminarily, we find no support for Mr. Caruso’s claim that the trial

court abdicated its responsibility to rule on whether the damages were

capable of apportionment. At the charging conference, counsel for

Mr. Caruso asked the trial court to hold, as a matter of law, that the injuries

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from the first and second impacts were severable and capable of

apportionment. In support of his position, counsel stated that Mr. Caruso’s

negligence played no role in Mr. Hennessy’s presence on the scene where

Mr. Robertson struck him. N.T., 5/21/13, at 112. When the trial court

challenged the accuracy of that statement, counsel clarified that what he

meant was that Mr. Hennessy “was not injured in the first accident.” Id. at

113. He stated that the damages were severable because the first accident

did not cause the injury. Id. at 14. The trial court disagreed, stating that it

believed “the two drivers were joint tortfeasors[,]” id. at 121, and

questioned how defense counsel could dispute “that but for, without your

client’s negligence[,]” Mr. Hennessy would have sustained the amputation

injury. Id. at 140. The court subsequently rejected Mr. Caruso’s proposed

point for charge and verdict slip that would direct the jury to apportion the

damages. The trial court recognized that until the jury resolved the factual

causation issue, Mr. Caruso’s premise that there were two accidents

resulting in two distinct harms capable of apportionment was at issue.

Next, Mr. Caruso alleges that the trial court erred in denying

apportionment. He recites the Neal factors, which we identified in Voyles,

supra, and avers that their application would have favored apportionment

on the facts herein. He argues that the injuries “were readily divisible on a

logical, reasonable and practical basis because there were two separate

accidents separated not only by time and different actors, but also by their

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respective impacts on [Mr. Hennessy].” Appellant’s brief at 20. He directs

this Court’s attention to Embrey v. Borough of West Mifflin, 390 A.2d

765 (Pa.Super. 1978), Harka, supra, Smialek v. Chrysler Motors Corp.,

434 A.2d 1253 (Pa.Super. 1981), and Lasprogata v. Qualls, 397 A.2d 803

(Pa.Super. 1979), where the harm was apportioned between the original

tortfeasors who caused injuries and the hospitals who negligently treated the

victims resulting in additional injuries.4

While Mr. Caruso suggests that application of the Neal factors favors

apportionment, we reach a contrary conclusion. In the instant case, the

negligent conduct of the two drivers was similar, identical duties were

violated, and the same evidence supported actions against both. The

negligent acts of Mr. Caruso and Mr. Robertson occurred in close temporal

proximity and in the same precise location. Although the collisions were five

minutes apart, the Robertson accident involved the vehicles disabled in the

Caruso collision that remained on the roadway. The injury was immediate

and one could reasonably find both actors responsible for that injury. But

for Mr. Caruso’s negligence, Mr. Hennessy would not have been pushing the

disabled vehicle to the shoulder in a location where he was vulnerable to

injury from oncoming motorists like Mr. Robertson.

____________________________________________

4

We note that, prior to trial, Mr. Caruso filed a motion in limine requesting

that the trial court rule, as a matter of law, that he was not a joint tortfeasor

with any of the other defendants, including the medical providers as well as

Mr. Robertson.

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Mr. Caruso persists in arguing that there were two separate accidents,

and, since Mr. Hennessy sustained no injury in the first accident and the

devastating leg injury occurred in the second accident, the injuries were

clearly divisible and apportionment was indicated. The fatal flaw in

Mr. Caruso’s position is that it is predicated on the incorrect assumption that

Mr. Caruso could not be liable for any consequences of his negligence

beyond the first collision. See Glomb, supra at 1367 (citing the

Restatement (Second) of Torts § 433A comment i for the proposition that, “a

court cannot direct apportionment between a party whose misconduct

facilitates the infliction of a harm and a party who actually inflicts that

harm.”). Mr. Caruso ignores the fact that the jury concluded that his

negligence was a factual cause of Mr. Hennessy’s leg injury. He does not

argue that the leg injury was capable of apportionment.

The cases relied upon by Mr. Caruso in support of apportionment are

inapposite as they involve tortfeasors who initially caused the injury and the

medical providers whose subsequent negligent treatment enhanced or

caused additional injuries. See e.g. Embrey, Harka, Smialek, and

Lasprogata, supra. We recognized in those cases that the defendants

were negligent in different ways and violated different duties. We held in

Lasprogata that the “tortfeasor originally causing an injury and a physician

who subsequently aggravates or causes a new injury are not joint

tortfeasors[,]” finding their acts “severable as to time, neither having the

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opportunity to guard against the other's acts, and each breaching a different

duty owed to the injured plaintiff.” Lasprogata, supra at 805.

The situation here is similar to the one in Smith v. Pulcinella, supra,

which also involved successive motor vehicle accidents and where we held

that apportionment was improper. Smith's car was rear-ended by a car

driven by Pulcinella. A police officer drove Smith's car to the left shoulder

and placed Pulcinella's car behind it. The parties exchanged information and

re-entered their cars approximately fifteen minutes later. A third car struck

Pulcinella's car in the rear and forced it into Smith's car for the second time.

Smith attempted to sue the driver of the second car as well as

Pucinella, but apparently misidentified the driver, and the suit proceeded

solely against Pulcinella. At trial, Smith’s treating physician testified that

Smith’s injury, a herniated disc in her lower back, was a result of the

accidents. However, when the physician could not differentiate between

injuries suffered in the first impact and the second impact, Pulcinella moved

for a non-suit and then a directed verdict. Pulcinella argued that since Smith

had not specifically alleged that he was negligent in the second accident, he

was not liable for any injuries resulting from that accident. The trial court

denied the motions because it determined, as matter of law, that the two

impacts could be considered by the jury as a single accident. It directed the

jury not to apportion damages, but rather, to determine whether Pulcinella

was negligent and whether his negligence was a substantial factor in

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contributing to Smith’s injuries. In concluding that Pulcinella was negligent

and that his negligence was a substantial factor in causing Smith’s back

injury, the jury held Pulcinella jointly and severally liable for Smith's injuries.

On appeal, Pulcinella alleged that the trial court erred in refusing to

apportion damages between the two accidents. We held that the facts

supported the trial court's determination that Smith's injuries were not

capable of apportionment as between Pulcinella and the driver of the second

vehicle. Both drivers owed Smith the same duty of care, were negligent in

the identical fashion, the accidents were close in time and place, and the

harm as a result of the combined negligence was indivisible. We concluded

that, “but for Pulcinella's negligence, Smith would not have been along the

shoulder of the road in a location where she was susceptible to being struck

a second time.” Smith, supra at 498. We relied upon Lasprogata and

distinguished the very same cases Mr. Caruso relies upon here.

Here, as in Smith, Mr. Caruso sought to limit his potential liability for

damages as a result of injuries sustained in the first collision. The trial court

correctly recognized that Mr. Caruso was subject to liability for damages for

the leg injury suffered in the Robertson collision if the jury determined that

his negligence was a factual cause of that injury. Resolution of the causation

issue would determine the extent of Mr. Caruso’s liability and whether he

was a separate tortfeasor.

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Finally, in support of apportionment, Mr. Caruso argues that it can be

inferred from eyewitness testimony that it was not foreseeable that

Mr. Robertson would “come barreling down the highway at a high rate of

speed without at least trying to stop” where he had an unobstructed view

and the vehicles had on their emergency flashers. Appellant’s brief at 27.

He relies upon Shamey v. State Farm Mut. Auto. Ins. Co., 331 A.2d 498

(Pa.Super. 1974), for the proposition that where the second accident was

unforeseeable, damages are capable of apportionment, and he and Mr.

Robertson were not joint tortfeasors.5

Mr. Caruso’s argument is one of superseding and intervening

causation. He claims that the conduct of Mr. Robertson was so

extraordinary and unanticipated that it relieves Mr. Caruso of liability for

injuries sustained in the second collision. The jury, however, rejected that

position in concluding that Mr. Caruso was a factual cause of the injury.

____________________________________________

5

The underlying facts in Shamey v. State Farm Mut. Auto. Ins. Co., 331

A.2d 498 (Pa.Super. 1974), involved successive motor vehicle accidents.

The issue before us was whether the trial court properly entered summary

judgment in favor of the uninsured motorist carrier based on the

interpretation of a provision in a release requiring the insured to seek the

insurer’s consent prior to settling any claims with anyone legally liable. We

reversed the grant of summary judgment, finding “the interpretation

suggested by the Shameys to be at least equally reasonable as that

proffered by State Farm.” Id. at 502. We also noted the potential for

genuine issues of fact if the evidence adduced at trial indicated that the first

tortfeasor’s negligence put the Shameys in a position of peril, thus

subjecting him to liability. We fail to see how this legal authority supports

Mr. Caruso’s position herein.

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Mr. Caruso’s negligent conduct was “an actual, real factor in causing the

harm.” See Pa.SSJI (Civ.) 13.20. Furthermore, in proffering this argument,

Mr. Caruso unwittingly conceded that causation was determinative of

whether apportionment was possible, thus undermining his criticism that the

trial court improperly conflated causation and apportionment. See

Appellant’s brief at 21. We find no error in the trial court’s rejection of

apportionment on the facts.

Mr. Caruso’s third, fourth, fifth, and sixth issues have a common

theme. He contends that a new trial is warranted as the trial court failed to

remain impartial, and that it permitted its personal belief that Mr. Caruso

and Mr. Robertson were joint tortfeasors to color its evidentiary rulings, the

jury charge, and the verdict slip. In support of his position, he points to the

trial court’s statements at the charging conference that it believed the

defendants were joint tortfeasors. Additionally, Mr. Caruso contends that,

by instructing the jury how to allocate negligence in the event it would find

that Mr. Caruso and Mr. Robertson were both factual causes of

Mr. Hennessy’s injury, the trial court permitted its personal beliefs to

influence the jury. Mr. Hennessy counters that the court’s expressions of

personal belief were uttered outside the presence of the jury. Furthermore,

he maintains there was no prejudice since apportionment would have been

improper regardless. Glomb, supra at 1367 n.4.

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After a thorough review of the record, we find no support for

Mr. Caruso’s general premise that the trial court was biased in the manner in

which it ruled on the admissibility of evidence or conducted the trial, or that

it permitted its personal beliefs to improperly influence the jury. We will

examine Mr. Caruso’s claims seriatim.

Prior to trial, the court denied Mr. Caruso’s motion in limine seeking to

preclude Mr. Hennessy from introducing the expert testimony of accident

reconstruction expert, Steven M. Schorr. Mr. Caruso contends that this

ruling constituted error or an abuse of discretion and was severely

prejudicial. He alleges that the jury was capable of understanding the facts,

which were not in dispute, and drawing its own conclusions about the

responsibility of the various parties; thus, expert testimony was

unnecessary. He maintains that the court abused its discretion in permitting

Mr. Schorr to opine, over objection, that the conduct of both Mr. Caruso and

Mr. Robertson were substantial contributing factors in the collision that

resulted in the injury, even though he concedes that an expert is permitted

to render an opinion on the ultimate issue.

Mr. Hennessy points out that he bore the burden of proving negligence

generally, and, causation specifically, and expert testimony was admissible

for that purpose. He argues that the expert’s reconstruction of the accident

assisted the jury in understanding the sequence of the collisions, which

arguably had a bearing on causation. Furthermore, the expert testimony

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was not objectionable simply because it embraced the ultimate issue. See

Pa.R.E. 704.

We note that, “[a]dmissibility of expert testimony is left to the sound

discretion of the trial court, and as such, this Court will not reverse the trial

court's decision absent an abuse of discretion.” Snizavich v. Rohm &

Haas Co., 83 A.3d 191, 194 (Pa.Super. 2013); see also Grady v. Frito-

Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003). “An abuse of discretion may

not be found merely because an appellate court might have reached a

different conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be

clearly erroneous.” Id.

Rule 702 of the Pennsylvania Rules of Evidence provides:

If scientific, technical or other specialized knowledge beyond that

possessed by a layperson will assist the trier of fact to

understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience,

training or education may testify thereto in the form of an

opinion or otherwise.

Moreover, Pennsylvania law permits expert opinion testimony on the

ultimate issue. McManamon v. Washko, 906 A.2d 1259, 1278 (Pa.Super.

2006); Pa.R.E. 704.6 The trial judge has discretion to admit or exclude

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6

Pa.R.E. 704.- Opinion on ultimate issue

(Footnote Continued Next Page)

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expert opinions on the ultimate issue depending on the helpfulness of the

testimony versus its potential to cause confusion or prejudice. In

McManamon, this Court found nothing improper in permitting a defense

expert on accident reconstruction to testify as to the cause of the accident.

We find no abuse of discretion in the admission of Mr. Schorr’s expert

reconstruction testimony. The testimony assisted the jury in understanding

the sequence of the accidents and the mechanism of injury. Furthermore,

the expert’s opinion regarding the ultimate issue of causation was

permissible. Mr. Hennessy bore the burden of proving negligence,

specifically that the negligence of both Mr. Caruso as well as Mr. Robertson

was the factual cause of his above-the-knee amputation. Since causation

was disputed, the testimony was probative.

Mr. Caruso next contends that the trial court abused its discretion in

sustaining an objection to Mr. Reikow’s testimony that the Robertson car

was traveling at a speed of fifty to sixty miles per hour. He argues that the

ruling illustrates the trial court’s bias, and further that it prejudiced him

because it “impeded his attempt to establish that . . . Robertson’s conduct

was an intervening superseding cause” of Mr. Hennessy’s injuries.

Appellant’s brief at 42.

_______________________

(Footnote Continued)

Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact.

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In order for a layperson to render an opinion as to the speed of a

vehicle, the witness must have experience with moving vehicles and an

adequate opportunity to observe. See Fisher v. Central Cab Co., 945 A.2d

215 (Pa.Super. 2008). It was the latter requirement that the trial court

found wanting. Mr. Reikow testified that he was standing in the doorway to

his car when the Robertson vehicle collided with his car. The trial court

found no foundational testimony establishing that Mr. Reikow was standing

at a vantage point to view and estimate the speed of the Robertson vehicle.

We find no abuse of discretion. In addition, we find that since Mr. Reikow

opined that the Robertson vehicle was traveling at a high rate of speed, any

alleged error is harmless.

Mr. Caruso also contends that by permitting Mr. Schorr to testify that

Mr. Robertson was not going fifty to sixty miles per hour, after instructing

the jury to disregard Mr. Reikow’s estimate of the speed of that vehicle, the

trial court implied that the expert was more credible than the lay witnesses.

Mr. Caruso misrepresents the record. The trial court did not permit the

expert to testify as to speed; defense counsel elicited Mr. Schorr’s opinion as

to the speed of the Robertson vehicle on cross-examination. Counsel asked

the expert to agree that the Robertson vehicle was traveling at a high rate of

speed. Mr. Schorr declined to opine as to the exact speed of the Robertson

vehicle, but he maintained that since the vehicle only moved fifteen to

twenty feet after impact, “there is no way they were going 60 to 70 miles an

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hour – 50 or 60 miles an hour.” N.T., 5/20/12, at 143. Since there was no

objection or motion to strike this testimony, the court did not rule on its

propriety, and any alleged error in its admission is waived. Obviously, since

the court did not rule on the admissibility of this evidence, any allegation of

partiality wholly lacks merit.7

Next, Mr. Caruso alleges that the jury charge and the verdict slip were

skewed against him and reflected the trial court’s bias. Mr. Caruso proposed

that the jury be instructed in accordance with Pa.SSJI (Civ.) 7.80, which

describes the apportionment of damages where two or more defendants

cause distinct damages.8 He also requested a charge on concurring causes

where it is uncertain whose negligent conduct caused the harm in conformity

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7

The trial court also instructed the jury that it did not have to accept an

expert’s opinion merely because he was an expert. N.T., 5/22/13, at 106.

8

Pa.SSJI (Civ.) 7.80 * APPORTIONMENT OF DAMAGES (TWO OR MORE

DEFENDANTS)--DISTINCT DAMAGES

The plaintiff claims that each of the defendants' negligence has

contributed to [his] [her] damages. As I have told you, in order

to recover in this case against one or more of the defendants,

you must find that the conduct of the defendant whom you have

found negligent was a factual cause in bringing about the

plaintiff's damages. If you find that a defendant caused distinct

damages from those of another defendant, you must decide

what percentage of the plaintiff's damages was caused by that

defendant's negligence. The verdict slip will have a space in

which you can write in the percentage figures.

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with Pa.SSJI (Civ.) 13.160.9 See Defendant Caruso’s Revised Points for

Charge, 5/21/13, at unnumbered 3. The trial court refused the

apportionment charge and agreed with Mr. Hennessy’s counsel that the

second proposed charge was improper on the facts of this case. The trial

court instructed the jury on factual cause in accordance with Pa.SSJI (Civ.)

13.20.10 Then, it informed the jury:

____________________________________________

9

Pa.SSJI (Civ.) 13.160 * CONCURRING CAUSES--ISOLATION OF SOLE

CAUSE AMONG MULTIPLE ACTORS

Sometimes two or more people are negligent, but only one

person's negligent conduct factually caused the plaintiff's [harm]

[injury] [damage] and it is uncertain which person caused the

[harm] [injury] [damage].

Under such circumstances each negligent [person] [defendant]

has the burden of proving that he or she did not factually cause

the plaintiff's [harm] [injury] [damage].

10

Pa.SSJI (Civ.) 13.20 – FACTUAL CAUSE

In order for [name of plaintiff] to recover in this case, [name of

defendant]'s [negligent] [grossly negligent] [reckless] conduct

must have been a factual cause in bringing about 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. 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, [name of defendant]'s conduct need not

be the only factual cause. The fact that some other causes

concur with [name of defendant]'s negligence in producing an

injury does not relieve [name of defendant] from liability as long

as [his] [her] own negligence is a factual cause of the injury.

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Members of the jury, the defendant Ryan Caruso contends

in this matter that although he is negligent for rear-ending the

vehicle operated by Bruce Reikow, he is not liable for the injuries

suffered by the plaintiff Patrick L. Hennessy because he did not

cause the specific harm suffered by Mr. Hennessy. That is

Mr. Hennessy’s contention.

Mr. Caruso argues that Mr. Hennessy’s leg amputation was

caused by factors set in motion by the negligence of defendant

Shawn Robertson when he rear-ended Mr. Reikow’s vehicle in a

separate collision sometime after the initial collision.

For purposes of this case, however, jurors, you are

allowed, although not required, to consider the events that

unfolded on the night of July 26, 2009 to constitute one single

accident.

The law in Pennsylvania is that if two or more causes

combine to produce a single harm[,] which is incapable of being

divided on any logical reasonable or practicable basis and each

cause is a factual cause in bringing about harm an arbitrary

apportionment should not be made.

N.T., 5/22/13, at 104-05.

Mr. Caruso objects to the court’s use of the terms “argues” and

“contends” in describing his position. Furthermore, he claims that the latter

instruction had the effect of steering the jury away from finding two

separate accidents.

Our standard of review when considering the adequacy of jury

instructions in a civil case is to "determine whether the trial

court committed a clear abuse of discretion or error of law

controlling the outcome of the case." Stewart v. Motts, 539

Pa. 596, 654 A.2d 535 (1995). It is only 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" that error in a

charge will be found to be a sufficient basis for the award of a

new trial. Id. at 540; Ferrer v. Trustees of University of

Pennsylvania, 573 Pa. 310, 345, 825 A.2d 591, 612 (2002);

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see also Tindall v. Friedman, 2009 PA Super 50, 970 A.2d

1159, 1175 (Pa. Super. 2009).

Pringle v. Rapaport, 980 A.2d 159, 165 (Pa.Super. 2009). A trial judge

has “wide latitude instructing a jury,” Hatwood v. Hospital of the

University of Pennsylvania, 55 A.3d 1229 (Pa.Super. 2012), and “may

use any particular language, as long as the words sufficiently and fully

convey the rules of law applicable to the case.” Bailey v. Pennsylvania

Elec. Co., 598 A.2d 41, 49 (Pa.Super. 1991).

We find no reversible error in the court’s charge to the jury. The

instructions adequately apprised the jury of the relevant law on causation.

The fact that the trial court spoke in terms of Mr. Caruso’s “contentions” and

“arguments” was not prejudicial. Many of the suggested standard jury

instructions use identical language, including Pa.SSJI (Civ.) 7.80, the charge

requested by Mr. Caruso. See also e.g. Pa.SSJI (Civ.) 13.00. The court’s

instruction that the jury could view the events as one rather than two

accidents merely permitted the jury to find that two causes combined to

produce one harm.

Mr. Caruso also complains that there were errors in the verdict slip.

Specifically, he points to the use of the plural possessive “defendants’” in

Question 2, and avers that it impermissibly suggested to the jury that it

should find both defendants to be factual causes. N.T., 5/22/13, at 3. He

also contends that a new trial is necessary because the verdict slip had no

place to designate which of the defendants were negligent.

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The trial court tendered its proposed verdict slip to counsel for both

parties and invited their comments. Mr. Caruso raised no objection to what

was likely a typographical error in the word “defendants’” in Question 2. Nor

did he object to the absence of a place to indicate that Mr. Caruso was not

negligent. In fact, counsel stated on the record that he had no objection to

the final verdict slip. N.T., 5/22/12, at 3. Since Mr. Caruso did not object to

the verdict slip on the grounds raised herein, we agree with Mr. Hennessy

that these objections are waived. See Pa.R.C.P. 227.1(b)(1) and (2) (issues

are waived for purposes of post-trial relief unless the issue was specifically

raised during pre-trial or trial proceedings).

Even if we did not find the claims waived, they offer no basis for relief.

Since Mr. Caruso admitted he was negligent, that issue was not before the

jury. Question 1 on the verdict slip asked, “Do you find that any of the

defendants were negligent?” Prior to submitting the verdict slip to the jury,

the trial court placed “Xs” on the separate lines indicating “Yes” for

Mr. Caruso and “Yes” for Mr. Robertson. Question 2 directed the jury to

determine for each defendant whether “the defendants’ negligence” was a

factual cause in bringing about Mr. Hennessy’s injuries. While use of the

singular possessive “defendant’s” may have been preferable to the plural

possessive, we find any error in this regard to be harmless. The jury was

still required to make a specific determination as to whether Mr. Caruso’s

“negligence was a factual cause in bringing about Patrick Hennessy’s

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injuries.” Verdict Slip, Question 2. The jury responded affirmatively to the

question.

Next, Mr. Caruso claims that the trial court erred in refusing to grant

judgment n.o.v. where the jury’s verdict was contrary to law regarding

separate tortfeasors and the verdict was contrary to facts that “indisputably

showed” that Mr. Hennessy sustained his injuries in the Robertson accident

“which occurred five minutes later as a result of Robertson’s extraordinary

and unforeseeable conduct.” Appellant’s brief at 50.

In reviewing such a motion,

"the evidence must be considered in the light most favorable to

the verdict winner, and he must be given the benefit of every

reasonable inference of fact arising therefrom, and any conflict in

the evidence must be resolved in his favor." Broxie v.

Household Finance Company, 472 Pa. 373, 380, 372 A.2d

741, 745 (1977). See also, Metts v. Griglak, 438 Pa. 392,

264 A.2d 684 (1970) and Gonzalez v. United States Steel

Corp., 484 Pa. 277, 398 A.2d 1378 (1979). Moreover, a

judgment n.o.v. should only be entered in a clear case and any

doubts must be resolved in favor of the verdict winner. See

Atkins v. Urban Redevelopment Authority of Pittsburgh,

489 Pa. 344, 414 A.2d 100 (1980) and Steward v. Chernicky,

439 Pa. 43, 266 A.2d 259 (1970). Further, "a judge's

appraisement of evidence is not to be based on how he would

have voted had he been a member of the jury, but on the facts

as they come through the sieve of the jury's deliberations."

Brown v. Shirks Motor Express, 393 Pa. 367, 375, 143 A.2d

374, 379 (1958).

There are two bases upon which a judgment n.o.v. can be

entered: one, the movant is entitled to judgment as a matter of

law, Tremaine v. H.K. Mulford Co., 317 Pa. 97, 176 A. 212

(1935), and/or two, the evidence was such that no two

reasonable minds could disagree that the outcome should have

been rendered in favor of the movant, Cummings v. Nazareth

Borough, 427 Pa. 14, 233 A.2d 874 (1967). With the first a

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court reviews the record and concludes that even with all factual

inferences decided adverse to the movant the law nonetheless

requires a verdict in his favor, whereas with the second the court

reviews the evidentiary record and concludes that the evidence

was such that a verdict for the movant was beyond

peradventure.

Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992).

This issue is nothing more than a rehashing of Mr. Caruso’s contention

that the imposition of joint and several liability was contrary to law. Despite

the fact that Mr. Hennessy was not injured in the Caruso accident, the jury

was permitted to find that Mr. Caruso’s negligence was a factual cause of

Mr. Hennessy’s leg injury. That the second impact occurred five minutes

later did not sever the negligence of Mr. Caruso from that of Mr. Robertson

as a matter of law. Nor do we find Mr. Robertson’s negligence to be so

extraordinary and unforeseeable as to relieve Mr. Caruso of liability as in

Grainy v. Campbell, 425 A.2d 379 (Pa. 1981) (truck driver’s awareness of

potential danger to boy scouts on the road created by contractor and gas

company’s obstruction of the berm relieved contractor and gas company of

liability for negligence when the driver struck one of the scouts); see

Restatement (Second) of Torts § 447. Since it was undisputed that

Mr. Robertson did not slow down, it is reasonable to infer that he was

unaware of or could not see the disabled vehicles in the road. A jury could

reasonably find the second impact to be a normal consequence of the

perilous situation created by Mr. Caruso’s negligence.

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Finally, Mr. Caruso’s contention that the verdict is not supported by

the evidence is refuted by the record. The jury obviously rejected

Mr. Caruso’s position that Mr. Robertson was the only person responsible for

Mr. Hennessy’s injury. Judgment n.o.v. was properly denied.

Mr. Caruso claims that a new trial is warranted as the verdict was

against the weight of the evidence. He alleges that, “it is unjust that the

jury would find against Caruso as a joint tortfeasor when Plaintiff admitted

that he was not injured at all in the Caruso accident.” Appellant’s brief at

51. Furthermore, he baldly argues that the jury’s assignment of 45% causal

negligence to Mr. Caruso “is entirely inconsistent and disproportionate with

the facts and can only be attributed to the Trial Court’s errors.” Id. We find

no merit in either contention. The jury could reasonably find that

Mr. Caruso’s negligence placed Mr. Hennessy at risk for the very injury

inflicted by Mr. Robertson. No new trial is warranted on this ground.

Finally, Mr. Caruso contends that the verdict is excessive and that the

trial court abused its discretion in refusing his request for remittitur. He

blames erroneous evidentiary rulings, jury instructions, and the verdict slip

for contributing to the excessive $15 million award for pain and suffering.

He argues further that the award was likely the result of “partiality,

prejudice, mistake or corruption,” or “arbitrary, speculative, or punitive,”

given the size of verdicts involving more catastrophic injuries. He avers that

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the jury “undoubtedly sympathized with the hardships and complications

that accompany the loss of a limb.” Id. at 54.

The trial court has broad discretion in deciding whether to reduce a

jury verdict. “Our standard of review in considering the reversal of a trial

court's order denying a remittitur is to determine whether the trial court

abused its discretion or committed an error of law in reaching such

decision.” Paliometros v. Loyola, 932 A.2d 128, 134 (Pa.Super. 2007);

see also Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410 (Pa.Super.

2004). Remittitur is proper when “the verdict so shocks the sense of justice

as to suggest the jury was influenced by partiality, prejudice, mistake, or

corruption.” Haines v. Raven Arms, 640 A.2d 367, 369 (Pa. 1994).

“We begin with the premise that large verdicts are not necessarily

excessive verdicts. Each case is unique and dependent on its own special

circumstances and a court should apply only those factors which it finds to

be relevant in determining whether or not the verdict is excessive.”

Paliometros, supra at 134-35. The court may consider the following

factors in making that determination:

(1) the severity of the injury; (2) whether the Plaintiff's injury is

manifested by objective physical evidence or whether it is only

revealed by the subjective testimony of the Plaintiff (and, herein,

the court pointed out that where the injury is manifested by

broken bones, disfigurement, loss of consciousness, or other

objective evidence, the courts have counted this in favor of

sustaining a verdict); (3) whether the injury will affect the

Plaintiff permanently; (4) whether the Plaintiff can continue with

his or her employment; (5) the size of the Plaintiff's out-of-

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pocket expenses; and (6) the amount Plaintiff demanded in the

original complaint.

Paliometros, supra at 134-135 (quoting Mineo v. Tancini, 502 A.2d

1300, 1305 (Pa.Super. 1986)).

The trial court characterized Mr. Hennessy’s injury as extremely

painful, permanent, and one that “will almost certainly cause complications

in the future.” Trial Court Opinion, 4/10/14, at 16-17. In light of

Mr. Hennessy’s life expectancy of more than forty years, the court concluded

that the verdict “simply was not excessive.” Id. at 16.

Since we have concluded that there is no evidence of trial court bias or

error in the trial court’s evidentiary rulings, jury instructions, and refusal to

apportion damages, we find no support for Mr. Caruso’s contention that the

trial court’s failings fueled the large compensatory damage award.

Furthermore, while the award is very high, we note that Mr. Hennessy’s

stipulated past and future medical and personal care bills are also very high,

totaling $4,145,904.17. Mr. Caruso did not dispute the economic damages.

Dr. George A. Knod testified regarding the multiple fractures of the

right tibia, large wounds, a degloving injury to that lower leg, a ruptured and

torn Achilles tendon, and a foot drop injury. N.T., 5/21/13, at 20-21. In

addition, Mr. Hennessy sustained significant injuries to his left leg. His

anterior cruciate ligament in his left knee was completely ruptured, he had

bleeding in his left thigh and internal bleeding throughout the pelvis. Id.

Mr. Hennessy endured multiple surgeries for the fractures and ACL injury,

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debridement, and surgery for a blood clot in his left leg. The amputation

occurred on August 24, 2009.

The amputation injury is permanent, manifested by objective physical

evidence, and very serious. Dr. Knod testified without challenge that, “Once

you lose the knee joint, you lose function. You lose all functionality to walk

and, in fact, it is easier to walk with two below-the-knee prostheses than

just one above-knee prosthesis.” Id. at 33. Mr. Hennessy’s personal

experience only confirmed the expert’s prediction. At the time of trial, he

was already on this third prosthesis and he could not wear it for more than a

few hours. Dr. Knod explained that Mr. Hennessy continued to have

difficulty with the fit of the prosthesis. With activity, he could only tolerate it

for twenty to thirty minutes. Id. at 35. The physician stated that

Mr. Hennessy would have to use a wheelchair on a daily basis for prolonged

mobility. Id. at 36. He suffered phantom pain in the missing limb and his

forced reliance upon crutches was causing overuse injuries to his back,

shoulder, arms, and left knee. Generally, the evidence confirmed that a

young man like Mr. Hennessy with a normal life expectancy would find

himself increasingly dependent on others for personal care as he

prematurely aged.

Mr. Hennessy described the embarrassment and humiliation he

endures due to the disfigurement. People look at him differently, and “[t]hat

bothers me.” Id. at 87. He told the jury he “would love to be able to play

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golf again.” Id. at 91. He used to play sports for recreation with friends

and expressed hope that the issues with his prosthesis would be resolved so

that he could resume those activities. Id. at 90. Given the aforementioned

evidence, we find no abuse of discretion on the part of the trial court in

denying the remittitur.

Judgment affirmed.

Judge Ott joins the Memorandum.

Judge Strassburger files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2014

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