Casselli v. Powlen

937 A.2d 1137, 2007 Pa. Super. 362, 2007 Pa. Super. LEXIS 3933
CourtSuperior Court of Pennsylvania
DecidedDecember 3, 2007
StatusPublished
Cited by14 cases

This text of 937 A.2d 1137 (Casselli v. Powlen) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casselli v. Powlen, 937 A.2d 1137, 2007 Pa. Super. 362, 2007 Pa. Super. LEXIS 3933 (Pa. Ct. App. 2007).

Opinion

OPINION BY

DANIELS, J.:

BACKGROUND OF CASE

¶ 1 Appellant, Louis Casselli, tripped, stumbled and fell on a sidewalk outside of Appellee, Robert Powlen’s home. It is undisputed that Appellant broke a bone in his left foot in the fall. Neither does Appellee dispute the fact that Appellant incurred medical expenses of $1,578.00 for the treatment of that broken bone. The jury found that both Appellant and Appel-lee were each fifty percent negligent1 in causing Appellant’s fall, but, nevertheless, awarded Appellant “zero” damages. Appellant filed a motion for a new trial limited to the issue of damages, which the trial court denied.2 Appellant does not dispute the jury’s finding of his comparative negligence of fifty percent.

QUESTION ON APPEAL

Appellant poses a single question for review by this Court on this appeal:

Did the Trial Court commit an error of law in denying Appellant’s/Plaintiffs Motion for Post Trial Relief following a jury verdict of zero damage despite finding in favor of plaintiff who sustained an undisputed fracture of the fifth metatarsal of his left foot and incurred undisputed outstanding medical bills in the amount of $1,578.00, when also concluding that Appellee/Defendant’s negligence was a substantial factor in bringing about plaintiffs injuries?

Brief of Appellant, p. 5.

¶ 2 Although the phrase itself does not appear in Appellant’s foregoing articulation of the “Statement of Question Involved”, Appellant effectively asserts on this appeal, and contends in his brief to this Court, that the jury’s award of zero damages to Appellant was against the weight of the evidence, particularly given the fact that the medical treatment obtained was admitted to have been reasonable by Appellee. Brief of Appellant, pp. 11, 21-24.

STANDARD OF REVIEW

¶ 3 Our standard of review in matters such as this has been expressed as follows:

[T]he power to grant or deny a new trial lies inherently with the trial court, and we will not reverse its decision absent a clear abuse of discretion or error of law which controlled the outcome of the case.

Johnson v. Frazier, 787 A.2d 433, 435 (Pa.Super.2001) (quoting Tudor Ins. Co. v. [1139]*1139Twp. of Stowe, 697 A.2d 1010, 1012 (Pa.Super.1997)).

¶4 And, as this Court has previously noted in Nemirovsky v. Nemirovsky, 776 A.2d 988 (Pa.Super.2001):

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. It is beyond argument that the fact-finder is free to accept or reject the credibility of both expert and lay witnesses, and to believe all, part or none of the evidence.

Id. at 993.

We have also observed, however, in Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d 311 (1992), that “[a] jury is not free to ignore an obvious injury.” With these benchmarks in mind regarding the parameters of our scope of review in a matter such as this, we shall now proceed to the merits of Appellant’s single question presented on this appeal.

DISCUSSION

¶ 5 Here, there are very few issues that are in dispute. The parties agree as to the dollar amount of the medical expenses that Appellant incurred. Appellee does not challenge that Appellant sustained a broken bone in his foot. The jury found both parties to be equally at fault, and that each party’s negligence was a substantial factor in causing the injury to Appellant. Appellant 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, Appellant seeks to recover damages with respect to a documented and admitted injury, i.e., the broken bone in his foot, and for the reimbursement to him of the reasonable amount of the medical expenses that he incurred for treatment of his injury that Appellee’s counsel agreed were “reasonable”, given the undisputed “broken bone [that he sustained] in his foot.” (N.T., 10/5/06, p. 156).

¶ 6 Such being the case, the appellate court decisions relied upon by Appellee in support of the trial court’s denial of Appellant’s motion for a new trial are inapposite and do not support the trial court’s refusal to award a new trial to Appellant, limited solely to the issue of damages. For, in Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988), the facts were diametrically opposed to those presented in the case at Bar, in that the medical testimony in that case controverted the specific cause of the alleged pain endured by the plaintiff. Nevertheless, a unanimous Supreme Court of Pennsylvania, speaking through Justice McDermott, observed that:

As a general proposition victims indeed must be compensated for all that they lose and all that they suffer from the tort of another. In that proposition is subsumed that they have suffered loss and that compensable pain was inflicted.
We have held and hold now that there are injuries to which human expeñence teaches 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. Pain of varying degree, may indeed follow small injury and be greater in its consequence than the initial blow. It may aggravate existing defects of the person, exploding latent diseases or precipitate, into present pain, what otherwise might have passed or been long delayed, absent the immediate injury.

[1140]*1140Id. at 167, 542 A.2d at 518. (Emphasis added).

¶ 7 Coincidentally, “the broken bone” example, as referenced by Justice McDer-mott, is the precise injury that Appellee admits that Appellant suffered in this case. Moreover, Appellee concedes that the medical treatment that plaintiff obtained for the same was “reasonable.” (N.T., 10/5/06, p. 156). On that basis alone, this case is clearly distinguishable from the facts in the Boggavarapu case.

¶ 8 Our decision in Majczyk v. Oesch, 789 A.2d 717 (Pa.Super.2001) is similarly distinguishable from the situation involved in the instant matter in that there, the defense medical expert witness denied that the plaintiffs injuries and subjective symptoms were related to the incident involved in the litigation. It was on that precise basis that we affirmed the jury’s verdict in favor of the defendant-appellee. Nevertheless, we did observe in Majczyk that:

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Cite This Page — Counsel Stack

Bluebook (online)
937 A.2d 1137, 2007 Pa. Super. 362, 2007 Pa. Super. LEXIS 3933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casselli-v-powlen-pasuperct-2007.