Lombardo v. DeLeon

828 A.2d 372, 2003 Pa. Super. 231, 2003 Pa. Super. LEXIS 1764
CourtSuperior Court of Pennsylvania
DecidedJune 17, 2003
StatusPublished
Cited by13 cases

This text of 828 A.2d 372 (Lombardo v. DeLeon) 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
Lombardo v. DeLeon, 828 A.2d 372, 2003 Pa. Super. 231, 2003 Pa. Super. LEXIS 1764 (Pa. Ct. App. 2003).

Opinions

KLEIN, J.:

¶ 1 This is an appeal from an order granting a new trial, limited to damages, after a jury returned a verdict awarding no damages to the plaintiffs-appellees. The lower court found that its conscience was shocked by the award of zero damages where the parties had stipulated that the defendant-appellant was negligent in causing a rear-end motor vehicle collision and where the jury determined that the injuries sustained were substantially caused by that negligence. We affirm in part and reverse in part. We agree with the trial court that there were soft tissue injuries that were compensable. However, we limit the new trial to damages for the soft tissue injuries that were undisputed. We do not permit a new trial regarding the herniated disc and other injuries that were disputed by defense experts.

¶ 2 The accident in question took place on August 27, 1998. Stefano Lombardo was driving his car with his son, Domenico, in the front passenger seat. The Lombar-do vehicle was stopped at a red light behind several other vehicles when Barbara DeLeon’s vehicle rear-ended the Lombar-do’s vehicle. Stefano Lombardo was pushed forward and backward during the collision. He sustained a bump on the top of his head. Domenico was also jostled about the car after impact. Both Lombar-dos were taken to an emergency room, examined, treated, and released. They then sought medical care four days later from an orthopaedist, Dr. Emil Dilorio, who referred them to a chiropractor, Dr. Kurt Brzezinski.

¶ 3 When Stefano first went to Dr. DiIorio, he complained of a stiff neck, headache and pain in his back. Stefano treated ■with Dr. Brzezinski periodically for a period of four months. Although Stefano, a self-employed owner of several Italian/pizza restaurants, never stopped working entirely, he modified his work schedule and duties when he was physically unable to perform certain work functions due to pain in his neck and back. Specifically, he found he could not roll out and toss pizza [374]*374dough without experiencing pain, so he attempted to refrain from this activity when there were other workers available to perform it. He limited himself to supervisory duties except for the one. or two hours during lunch when he did “hands-on” work. When he experienced periodic pain in his back or neck, he again sought a course of treatment with Dr. Brzezinski.

¶ 4 Domenico, 19 years old at the time- of the accident, studied culinary arts in the United States and trained as a chef in Italy. In August 1998, he was working full-time in one of the family’s restaurants before going to Italy to- study for six months in January 1999. • Both Domenico and his father testified that Domenico was not able to perform his pre-accident work duties as an executive chef such as prolonged chopping and mincing, picking up heavy saucepans, and moving about the kitchen with agility. Domenico continued to work in the restaurants, but primarily in supervisory and managerial positions rather than as a chef or cook.

¶ 5 The decision to grant a new trial lies within the discretion of the trial court. Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998). An appellate court will not reverse a trial court’s decision regarding the grant or refusal of a new trial absent an abuse of discretion, Davis v. Mullen, 565 Pa. 386, 773 A.2d 764, 766 (2001), or an error of law. Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579, 586 (Pa.Super.2002) (en banc); Andrews v. Jackson, 800 A.2d 959, 962 (Pa.Super.2002). As this Court has stated:

Because an appellate court, by its nature, stands on a different plane than a trial court, we are not empowered to merely substitute our opinion concerning the weight of the evidence for that of the trial judge. Instead, the focus of appellate review is on whether the trial judge has palpably abused his discretion, as opposed to whether the appellate court can find support in the record for the jury’s verdict.

Zeffiro v. Gillen, 788 A.2d 1009, 1012 (Pa.Super.2001) (citations omitted).

¶ 6 The trial court should grant a new trial only where the verdict is so contrary to the evidence as to shock one’s sense of justice and not where the evidence is conflicting or where the trial judge would have reached a different conclusion on the same facts. Davis, 773 A.2d at 766.

¶ 7 This court has recently surveyed the law pertaining to zero-damage awards as follows:

Where there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injury to the plaintiff, the jury may not find the defendant’s negligence was not a substantial factor in bringing about at least some of plaintiffs injuries. Such a verdict is contrary to the weight of the evidence adduced at trial. In other words, “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.”
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[W]e conclude the jury must find the accident was a substantial cause of at least some injury, where both parties’ medical experts agree the accident caused' some injury. While the jury may then find the injuries caused by the accident were incidental or non-compen-sable and deny damages on that basis, the jury may not simply find the accident did not “cause” an injury, where both parties’ medical experts have testified to the contrary.

[375]*375Andrews, supra at 962, 964 (citations omitted) (emphasis in original).

¶ 8 Here the jury did not disregard uncontradicted medical testimony. It found that the injuries sustained were caused by the negligence of appellee. After finding that the injuries were caused by the accident, the jury found that they were non-compensable, and it denied the award of damages. The issue here is whether the jury’s verdict, finding that any pain and suffering related to the injuries was not compensable should have been upheld by the lower court.

¶ 9 The existence of compensable pain is, “an issue of credibility and juries must believe that plaintiffs suffered pain before they compensate for that pain.” Davis, 773 A.2d at 769. A jury is not required to award a plaintiff any amount of money if it believes that the injury plaintiff has suffered in an accident is insignificant. Majczyk v. Oesch, 789 A.2d 717, 724. “Insignificant” means the jury could have concluded that any injury plaintiff suffered did not result in compensable pain and suffering. Id. at 726. While 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.” Id. at 724.

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Cite This Page — Counsel Stack

Bluebook (online)
828 A.2d 372, 2003 Pa. Super. 231, 2003 Pa. Super. LEXIS 1764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lombardo-v-deleon-pasuperct-2003.