Kitzmiller v. Zeitner

46 Pa. D. & C.4th 559, 2000 Pa. Dist. & Cnty. Dec. LEXIS 290
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedMarch 31, 2000
Docketno. 96-C-1852
StatusPublished

This text of 46 Pa. D. & C.4th 559 (Kitzmiller v. Zeitner) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kitzmiller v. Zeitner, 46 Pa. D. & C.4th 559, 2000 Pa. Dist. & Cnty. Dec. LEXIS 290 (Pa. Super. Ct. 2000).

Opinion

BLACK, J.,

This case arises from a motor vehicle collision in which an automobile operated by plaintiff Anita Kitzmiller was struck from the rear by a tractor-trailer operated by defendant Thomas Zeitner. Plaintiffs seek to recover damages for personal injuries allegedly sustained by Mrs. Kitzmiller in this accident. After a jury trial, in response to special interrogatories, the jury found that defendants were negligent, but that this negligence was not a substantial factor in causing harm to plaintiffs. We then molded a verdict in favor of defendants.

Plaintiffs have moved for a new trial on two grounds. First, they contend that the jury verdict was against the clear weight of the evidence.1 Second, they contend that the trial court erred in admitting into evidence photographs of plaintiffs’ vehicle taken after the accident. For the reasons set forth below, plaintiffs’ motion is denied.

THE WEIGHT OF THE EVIDENCE

A trial court may grant a new trial on the ground that the jury’s verdict is against the weight of the evidence only where the verdict is so contrary to the evidence that it “shock[s] one’s sense of justice.” Randt v. Abex Corp., 448 Pa. Super. 224, 231, 671 A.2d 228, 232 (1996).

“[A] new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion. ...” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985).

[561]*561In this case Mrs. Kitzmiller alleged injuries to her neck and shoulder as a result of the collision. She claims damages for pain and suffering and her husband, plaintiff Ricky Kitzmiller, claims damages for loss of consortium. There is no claim for medical expenses, property damage or any economic loss. The damage claims were supported by testimony from plaintiffs themselves and from Mrs. Kitzmiller’s treating physicians, who in turn relied on the history provided them by plaintiffs. Plaintiffs’ claims were totally dependent on the credibility of their witnesses, and in particular on the credibility of Mrs. Kitzmiller.

In finding that Mrs. Kitzmiller did not suffer harm in the accident, the jury apparently did not find her testimony credible. Although the verdict did surprise this writer, it did not “shock one’s sense of justice.” There was no unimpeachable evidence of Mrs. Kitzmiller’s injury. The jury was entitled to disbelieve her complaints of pain and her professed limitation of activity.

It is well established that credibility determinations are within the sole province of the jury.

“A jury is entitled to believe all, part, or none of the evidence presented.... A jury can believe any part of a witness’ testimony that they choose, and may disregard any portion of the testimony that they disbelieve.” Martin v. Evans, 551 Pa. 496, 505, 711 A.2d 458, 463 (1998) (quoting Randt v. Abex Corp., 448 Pa. Super. 224, 234, 671 A.2d 228, 232 (1996)).

In this case the jury chose to disbelieve the testimony of plaintiffs’ witnesses. This was within the jury’s province, and under our system of laws we must respect that decision.

[562]*562The Pennsylvania Supreme Court has stated:

“Pain may be subjective, and if believed, is compensable. ... If the pain, however, has no known medical source and is subjective to the person, the triers of fact must believe and accept that it could and in fact exists. They are not to be faulted, however, if they do not believe all they are told and all that their common experience does not accept. That is not to say, they may disregard obvious injury. It is, however, to say that they are not obliged to believe that every injury causes pain or the pain alleged....
“Jurors are not compelled to find pain where there [is] no objective injury. They could have but they did not, and it is not a fact of human experience that every tort produces compensable pain.” Boggavarapu v. Ponist, 518 Pa. 162, 167-68, 542 A.2d 516, 518-19 (1988). (citations omitted) (emphasis in original)

In Boggavarapu, the Supreme Court reversed the trial judge’s grant of a new trial and reinstated the jury’s verdict, holding that the jury was not compelled to believe that compensable pain had resulted from the allegations of injury.

To the same effect are Holland v. Zelnick, 329 Pa. Super. 469, 478 A.2d 885 (1984) and Brodhead v. Brentwood Ornamental Iron Co. Inc., 435 Pa. 7, 255 A.2d 120 (1969). In Holland, like the instant case, the plaintiff’s vehicle was struck from behind, and the plaintiff claimed injuries to her neck area. However, there was no objective evidence of injury. The Superior Court upheld the jury verdict that the defendant’s negligence did not cause harm to the plaintiff. In Brodhead, the plaintiff was standing near his milk truck when it was struck by a steel truss being hauled by defendant on a tractor-trailer. [563]*563The impact threw the plaintiff forward. The only testimony substantiating his injuries came from the plaintiff himself and his treating physician. A jury verdict for the defendant was upheld on the ground that “the jury must have decided that plaintiff was not injured in this accident.” Id. at 10, 255 A.2d at 122.

Plaintiffs rely on the case of Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995), in which the Supreme Court reinstated the new trial order of the trial judge after the Superior Court had reversed the trial judge’s decision. Neison, however, is readily distinguishable. The collision in that case was so violent that it caused the plaintiff’s head to shatter the rear window of his car, resulting in a large lump on the plaintiff’s head. Moreover, the defendant’s own expert acknowledged that plaintiff was injured in the accident. See also, Mano v. Madden, 738 A.2d 493 (Pa. Super. 1999), where the defendant’s expert conceded that plaintiff had suffered some injury from the accident.

In the instant case the jury could have concluded from the evidence that the collision was a very mild one. Moreover, there was no visible injury to Mrs. Kitzmiller. Nor was there any acknowledgment by defendants’ medical witness, Dr. Eugene I. DiSalvo, that Mrs. Kitzmiller was injured in the accident. In short, there is nothing about the circumstances of the case that required the jury to believe Mrs. Kitzmiller and her witnesses.

Plaintiffs argue that Dr. DiSalvo’s testimony supported their case. However, this is not an accurate interpretation of what he said. Dr. DiSalvo, who testified by videotape deposition, stated that he found no objective evidence of any injury in his examination of Mrs.

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Related

Livelsberger v. Kreider
743 A.2d 494 (Superior Court of Pennsylvania, 1999)
Randt v. Abex Corp.
671 A.2d 228 (Superior Court of Pennsylvania, 1996)
Boggavarapu v. Ponist
542 A.2d 516 (Supreme Court of Pennsylvania, 1988)
Neison v. Hines
653 A.2d 634 (Supreme Court of Pennsylvania, 1995)
Thompson v. City of Philadelphia
493 A.2d 669 (Supreme Court of Pennsylvania, 1985)
Martin v. Evans
711 A.2d 458 (Supreme Court of Pennsylvania, 1998)
Armbruster v. Horowitz
744 A.2d 285 (Superior Court of Pennsylvania, 1999)
Brodhead v. Brentwood Ornamental Iron Co.
255 A.2d 120 (Supreme Court of Pennsylvania, 1969)
Holland v. Zelnick
478 A.2d 885 (Supreme Court of Pennsylvania, 1984)
Mano v. Madden
738 A.2d 493 (Superior Court of Pennsylvania, 1999)
Aiello v. Southeastern Pennsylvania Transportation Authority
687 A.2d 399 (Commonwealth Court of Pennsylvania, 1996)
Beardslee v. Columbia Township
41 A. 617 (Supreme Court of Pennsylvania, 1898)

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Bluebook (online)
46 Pa. D. & C.4th 559, 2000 Pa. Dist. & Cnty. Dec. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitzmiller-v-zeitner-pactcompllehigh-2000.