Takes v. Metropolitan Edison Co.

655 A.2d 138, 440 Pa. Super. 101, 1995 Pa. Super. LEXIS 366

• Court: Superior Court of Pennsylvania
• Decided: February 22, 1995
• Status: Published

Opinions

CAVANAUGH, Judge:

In this case the appellees, Takes, were awarded verdicts for compensatory damages totaling $1,460,414, including $500,000 for pain and suffering for Mr. Takes and $150,000 loss of consortium damages for Mrs. Takes. An award of $3,000,000 was made for punitive damages.¹ A core issue in the post-trial motions and on appeal in this court is the propriety of the court’s charge and a special interrogatory given to the jury as they relate to the definition of punitive damages — that is, whether the court improperly allowed the jury to consider negligence standards in their determination of entitlement to punitive damages. The trial court (which denied all post-verdict motions by appellant, Metropolitan Edison) determined that the appellant had preserved the punitive damages issue for its post-trial review, but found that there was no error in the charge or jury interrogatory.

Before considering the issues on appeal, we must determine whether the punitive damage definition issue has been preserved for our consideration. The decision in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) was inspired, at least in part, by an effort to motivate trial counsel to be diligent to assist the court in preventing error at the trial stage where it could be corrected. In that pivotal case, the supreme court eliminated the usage of the “basic and fundamental error” doctrine as a means of achieving appellate court review of trial error. The court made no decision as to the specificity necessary to preserve an objection to trial court error and offered no suggestion that the finding on the issue preservation should be influenced in a given case by concerns of judicial economy.

Since we will conclude that the trial court committed error in that it improperly permitted the jury to consider negligence concepts in the determination of the right to punitive damages, we examine the present record to see if the appellant has waived any appellate review of this issue. On the morning of February 26, the court met in chambers with counsel to discuss the charge and verdict sheet. There was an extended discussion with respect to punitive damages. Appellant’s attorney argued strenuously against any punitive damages charge and, in the alternative, argued that, if given at all, it should be restricted to a situation wherein appellant was urged to do his work under known dangerous circumstances, and in support thereof, at the conclusion of an extended three-page argument, concluded thusly:

Therefore, Judge, taking that position, since I think the only scenario that makes it is they should be charging this way — and let me finish just this part — if you allow the jury to wander around in the fact combination with this blanket charge: do you find they acted in a negligent, willful and reckless manner is prejudicial to the defense in this instance — because it suggests that the Court thinks any combination of the facts that they would choose could infer wanton and reckless negligence from the those [sic] facts and that’s just not the case.

[emphasis added]

Thus, it is clear that counsel verbalized an objection to a charge which would permit elucidation of negligence concepts in the punitive damages charge.

Later, as the court was attempting to move through exhibit evidence and a final collation of jury interrogatories, counsel stated:

MR. TAYLOR: Your Honor, I suppose my objection to the Court’s decision to give the question of punitive damages is saved by my objection at this point for all the reasons that I have advanced.

During the course of the charge:

THE COURT: I will do that.

MR. TAYLOR: My only objection, your Honor, is I don’t think that you have defined exactly the extent that you’ve got to go to show reckless, [sic]

And then, during and at the conclusion of the charge which included this language:

A person’s conduct is outrageous, and included among that would be reckless, negligent, willful and wanton, when that person acts with a bad motive or when he acts with reckless indifference to the interests of others. That is the definition with which we approach that issue.

(emphasis added)

(In response, to request for additions to charge at conclusion):

MR. TAYLOR: Your Honor, I restate the Defendant’s objection to the Court’s charging on reckless and intentional and punitive damages.

In order to appreciate the danger inherent in any attempt to undertake an independent and subjective reconstruction of the record in order to discover the critical thought processes of the trial court and trial counsel, we must first examine a crucial excerpt from the trial court opinion. The court stated:

5¡c * * * sjs *

To fully appraise the breadth of defendant’s objection as preserved, the following record must also be addressed:

MR. TAYLOR: What happens to my proposition that the application of the reckless is limited to a fact situation? (That recklessness could be found only if Met Ed personnel knew the capacitor was energized and deliberately said it was not.)

THE COURT: I’m thinking. I’m not going to get into that any more than I want the subparts and the negligence question (Restatement § 500 discussion) of Met Ed. And if they find it I think — if I put it (punitives) in there and it’s held, it’s (recklessness) going to be held on the basis of the four corners of the case, not on a particular factual issue. And if the court finds that the scenario which is defined by the evidence at its worst is that MetEd does not support recklessness, then the punatives (sic) get struck. If the entire four corners of the evidence say yes, that it does sustain punitives (sic), then you’re stuck.

MR. TAYLOR: I have a point for charge that frames the issue that satisfies that (deliberate misrepresentation of energized state as) the only basis on which can find, and that will protect it, but I would take exception.

THE COURT: All right. Defendant says that not only does the Defendant object to the submission under these facts of the issue of recklessness to the jury, but more so that, if it were to be submitted, it could be submitted only on the limited basis that is defined in the Northampton County case; namely, that there had to be a positive instruction by Met-Ed employees that the capacitor was de-energized at the time that this Plaintiff was painting it, when, in fact, it was energized. Am I correct?

MR. TAYLOR: Yes, Judge.

THE COURT: And if I submit the reckless question, I am not going to use that, and your exceptions [sic] noted. I would submit it in the standard general form. (N.T. February 26, 1992, pp. 661-663).

Thus it is clear Met Ed’s primary objection expressed at trial and intended to be preserved revolved around Met Ed’s contention that punitive damages would not lie absent a finding by the jury that Met Ed’s agent knowingly told the plaintiff that the capacitor was de-energized when he knew it was not. The court rejected that contention. (N.T. Feb. 26, 1992, pp. 661-662). Having determined that Met Ed preserved its objections to the jury charge on punitive damages, as well as to the jury interrogatory concerning punitive damages, we now address the substantive issues raised by Met Ed.

* * * # * *

Accordingly, we have the trial court’s own conclusion from the record before it.

Although the exact meaning of the exchange between Mr. Taylor and the court is somewhat obscure, it is clear that the trial court recalled this as a broad preservation by counsel of objections to errors and shortcomings in the charge and jury interrogatory on punitive damages.² It would be an inappropriate function of a reviewing court to substitute its own subjective interpretation of the record in order to find waiver when it was “clear” to the trial court that the objection as to punitive damages was “preserved”.

Similarly, when the record itself is sufficient to demonstrate preservation of an issue (as is the present situation), it would be inappropriate for us as a reviewing court to speculate as to the subjective thought processes of counsel. The wisdom of the Dilliplaine rule is that it is a rule of fairness which discourages gamesmanship as a triál tactic. A party may not remain silent and take his chances on a verdict and then complain that it is adverse. Carter by Carter v. United States Steel Corp., 529 Pa. 409, 604 A.2d 1010 (1992), reargument denied, certiorari denied, 113 S.Ct. 186. In enforcing this policy, we have not required unnecessary precision of language in order to fairly find preservation. Caldwell v. City of Philadelphia, 358 Pa.Super. 406, 517 A.2d 1296 (1986), appeal denied, 517 Pa. 597, 535 A.2d 1056 (1987) (no waiver by reason of failure to use term “special relationship” in charge request); Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 527 A.2d 1012 (1987) (challenge to charge, preserved by, inter alia, mention of issue during inchambers conference); Morganstein v. House, 377 Pa.Super. 512, 547 A.2d 1180 (1988), appeal dismissed, 525 Pa. 498, 581 A.2d 1377 (1990) (challenge to substantive portion of jury charge preserved by objection that “it was confusing”); Brancato v. Kroger Co., Inc., 312 Pa.Super. 448, 458 A.2d 1377 (1983) (finding no waiver by reason of lack of specific exception to error in charge.)

An examination of authorities on the issue of waiver in Pennsylvania and a fair and objective review of the present record lead inescapably to the conclusion that the trial court rightly concluded that appellant had not waived any objection to the content of the jury instruction concerning the incorporation of negligence concepts as a basis for the award of punitive damages. An added reason is that a certain deference should be paid to the trial court’s determination on the issue of waiver since it is the trial court, and none other, who is in a position to judge the extent to which counsel was encouraged or discouraged from making highly detailed objections on the record during the course of time-pressured and highly technical discussions concerning the proposed charge in a major case. It is also the trial court which can best determine when an objection, somewhat general with terms, is mutually understood to encompass more specific objections which might be made as part thereof.

We conclude that the record in this case objectively demonstrates that the punitive damages definition issue was preserved by objections at trial, by inclusion in post-verdict motions, and by assertion in the present appeal.

One additional postulate merits discussion. In support of his waiver, appellant has cited James v. Nolan, 418 Pa.Super. 425, 614 A.2d 709 (1992) and Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990), appeal denied, 527 Pa. 621, 592 A.2d 42 (1991) for the proposition that an appellate court may overlook a possibly valid claim of trial waiver when the trial court on post-trial motions chooses to address the issue. The counter-argument is that deference shown in Nolan and Brooks is not appropriate here since in those cases, the excused waiver resulted in consideration of an issue which did not necessitate reversal, thus defining Dilliplaine in this area as a rule of judicial expediency. As set forth above, we conclude that there was effective preservation of the punitive damages error at trial and, therefore, it is unnecessary to find excused waiver as in Nolan and Brooks. Moreover, our courts have frequently countenanced rejection of a waiver argument where the result is reversal or the award of a new trial. Loos and Dilworth v. Quaker State Oil Refining Corp., 347 Pa.Super. 477, 500 A.2d 1155 (1985); See also, Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 527 A.2d 1012 (1987) (waiver argument rejected — new trial granted) Caldwell v. City of Philadelphia, 358 Pa.Super. 406, 517 A.2d 1296 (1986), appeal denied, 517 Pa. 597, 535 A.2d 1056 (1987) (trial court reversed); Bozzo v. Electric Weld Division, 283 Pa.Super. 35, 423 A.2d 702 (1980), affirmed, 495 Pa. 617, 435 A.2d 176 (1981) (waiver argument rejected — reversed and new trial awarded); Morganstein v. House, 377 Pa.Super. 512, 547 A.2d 1180 (1988), appeal dismissed 525 Pa. 498, 581 A.2d 1377 (1990) (waiver rejected and new trial granted); Cagnoli v. Bonnell, 531 Pa. 199, 611 A.2d 1194 (1992) (waiver rejected— judgment on pleadings reversed — remand for trial); Blum v. Merrell Dow Pharmaceuticals, 385 Pa.Super. 151, 560 A.2d 212 (1989), affirmed, 534 Pa. 97, 626 A.2d 537 (1993) (waiver argument rejected — reversed—new trial granted); Boscia v. Massaro, 365 Pa.Super. 271, 529 A.2d 504 (1987), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988) (no waiver found— new trial award affirmed). See also, Hall v. Acme Markets, 110 Pa.Cmwlth. 199, 532 A.2d 894 (1987) Summit Fasteners v. Harleysville National, 410 Pa.Super. 56, 599 A.2d 203 (1991).

We conclude that the issue of the propriety of the punitive damage charge has been duly preserved for our consideration. We proceed to the merits.

Appellant/defendant Metropolitan Edison is a utility which supplies electricity to eastern Pennsylvania. In the fall of 1987, Metropolitan Edison decided to have several of its electrical substations painted. Appellee/plaintiff Stephen Takes had thirty years’ experience as an industrial painter, including experience painting electrical power stations in western Pennsylvania. Mr. Takes, through his company El Greco Painting, submitted the lowest bid for painting a number of de-energized Metropolitan Edison substations in the Easton area. The one substation which Metropolitan Edison could not de-energize was awarded to a different contractor; Mr. Takes only bid on painting de-energized equipment.

Metropolitan Edison awarded Mr. Takes the contract on the de-energized substations, and painting began in October of 1987. Mr. Takes and his crew had completed five of the substations when they started work on the Dock Street substation in Easton. Unbeknownst to Mr. Takes, the substation had been de-energized except for a 4,800-volt capacitor. The parties disagreed as to whether Mr. Takes was warned about the live capacitor, but the structure was not roped off, nor were any warning signs posted. Mr. Takes had climbed the capacitor’s structural housing and was painting it when an enormous electric shock knocked him off of his perch. He fell ten feet, hitting the ground head first. Fortunately, he was wearing his hardhat.

Mr. Takes suffered serious injuries from the electric shock and fall. The current destroyed the middle finger of his left hand, which had to be amputated; it also left black, leathery entrance and exit wounds on both sides of his body. The fall broke two of his ribs and fractured his scapula. Mr. Takes sustained other injuries as well, and now suffers from severe depression and Post-Traumatic Stress Syndrome.

We first address an evidentiary ruling which Metropolitan Edison challenges.

I.

Metropolitan Edison tried to establish comparative negligence by showing that the capacitor was humming and vibrating, so Mr. Takes should have known it was energized and not have climbed its housing. The jury was taken to view the Dock Street substation, but in its fully energized state, rather than with all the equipment de-energized except for the one capacitor. Dr. Eugene Bartel, an electrical engineer and the Takes’ expert, testified that the capacitor was quiet. Metropolitan Edison rebutted his testimony with that of its company foreman, Lovene Heller, who described how the capacitor naturally hummed and vibrated when energized.

Metropolitan Edison wished to bolster this claim with more expert testimony. Metropolitan Edison asked its expert, Dr. Terence Hockenberry, whether he had observed the Dock Street capacitor humming and vibrating. The trial court sustained plaintiffs’ objection, ruling that Dr. Hockenberry’s answer would have been both cumulative and beyond the scope of his report.

Evidentiary rulings are committed to the sound discretion of the trial court, and will not be overruled absent an abuse of discretion or error of law. Movie Distributors Liquidating Trust v. Reliance Ins. Co., 407 Pa.Super. 588, 595 A.2d 1302 (1991), alloc. denied, 529 Pa. 658, 604 A.2d 249 (1992). The expert report focused on Mr. Takes’ adherence to the pre-determined work plan, and what steps he could have taken to avoid electrocution. Despite its high degree of detail, the report made no mention of capacitor rattle and hum. The trial court ruled from the bench that the proposed expert testimony would have gone beyond the report’s fair scope. N.T. 2/24/92 at 449-453; trial court opinion 2/26/93 at 19-20. In considering Metropolitan Edison’s post-trial motions, the trial court also held that the proposed expert testimony would have only duplicated Mr. Heller’s similar testimony.

Metropolitan Edison argues that Dr. Hockenberry’s testimony would not have been cumulative, because his credentials are stronger than Mr. Heller’s. We are inclined to agree. Without Dr. Hockenberry’s testimony, Metropolitan Edison had to rebut the Takes’ expert with testimony of their own power station foreman. While we would not disparage Mr. Heller’s expertise and personal knowledge of the Dock Street capacitor, we must acknowledge that a jury might give more weight to an expert with a Ph.D. in electrical engineering. Thus, Dr. Hockenberry’s testimony would not have merely duplicated Mr. Heller’s; its greater weight made it different.

We do agree with the trial court, however, that the testimony would have gone beyond the fair scope of Dr. Hockenberry’s expert report. The report was produced in response to the Takes’ discovery interrogatories, which asked: 1) who Metropolitan Edison intended to use as an expert; 2) his qualifications; and 3) a “description of the test or experiment relative to which he will testify.” Plaintiffs interrogatories nos. 45 and 46.

Metropolitan Edison acknowledges that rule 4003.5(c) limited Dr. Hockenberry’s live testimony to the fair scope of his expert report. See PaR.C.P. 4003.5(c), 42 Pa.C.S.A. This same rule states that an expert “shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.” Id. Explanatory note six advises parties to make broad discovery inquiries in order to force all of the expert’s proposed testimony into the report, and prevent surprise at trial. Metropolitan Edison argues that the Takes’ interrogatories were too narrow, so Dr. Hockenberry should have been permitted to testify regarding other relevant issues not mentioned in his report, such as the capacitor’s noise and vibrations.

While the Takes’ interrogatories did not parrot the language of rule 4003.5(a)(1), we think that they were broad enough.

At trial Dr. Hockenberry was asked,

Q. Now, Doctor, did you also at my request today — and I think previously — did you go to the substation and did you may note of what noise or what vibrations that that capacitor made when it was energized?

A. Yes.

Q. Now, we’re talking about the capacitor shown in the pictures and the capacitor upon which Mr. Takes was injured.

[Plaintiffs counsel]: I’m going to object to this, your Honor. It’s outside the fair scope of the report.

N.T. 3/24/92 at 449-450. At this point, the court held a sidebar conference and sustained the objection.

.The question put to Dr. Hockenberry was whether he observed if the energized capacitor made noise or vibrated. The act of observing a disputed phenomenon and noting the results is a test or experiment, albeit a simple one. It therefore fell within the ambit of the Takes’ interrogatories, and Dr. Hockenberry was bound to mention it in his report if he wanted to be able to testify about it at trial. Since the report made no mention of capacitor rattle and hum, the proposed testimony would have gone beyond its fair scope and the objection was properly sustained.

II.

We now turn to the issues involving the punitive damage award. Metropolitan Edison argues that the trial court erred in: 1) allowing the issue of punitive damages to go to the jury; 2) not restricting the application of punitive damages to a particular fact situation; and 3) instructing the jury that punitive damages could be imposed for negligent or grossly negligent conduct, when nothing less than outrageous conduct (ie., conduct evidencing reckless indifference) will do.³ The Takes respond that the alleged errors were either decided correctly or waived.

A.

Metropolitan Edison argues that the issue of punitive damages should never have gone to the jury. It is well settled that punitive damages will lie only in cases of outrageous behavior, where defendant’s egregious conduct shows either an evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Restatement (Second) of Torts, § 908(2). Neither mere negligence, nor even gross negligence, shows sufficient culpability to justify a punitive damage award. SHV Coal v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991); Smith v. Celotex Corp., 387 Pa.Super. 340, 564 A.2d 209 (1989). Rather, “[p]unitive damages are proper when a person’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.” SHV Coal, supra at 493, 587 A.2d at 704.

We agree with the trial court’s decision to submit the issue of punitive damages to the jury. Given the extreme danger inherent in the generation and transmission of high voltage electric current, Metropolitan Edison owed Mr. Takes the highest duty of care our law imposes. Meehan v. Philadelphia Electric Co., 424 Pa. 51, 53-55, 225 A.2d 900, 902 (1967). Metropolitan Edison does not contend that it was unaware of the capacitor’s energized state when Mr. Takes and his crew began painting the substation. Cf. Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 425-426, 565 A.2d 1170, 1182 (1989) (“If the defendant actually does not realize the high degree of risk involved, even though a reasonable man in his position would, the mental state required for the imposition of punitive damages under Pennsylvania law is not present.”). Rather, Metropolitan Edison was indifferent to a known risk of enormous magnitude. Such conduct shows a higher degree of culpability than subjective ignorance, and can support a punitive damages award. See SHV Coal, supra at 493-495, 587 A.2d at 704 (citing Restatement (Second) of Torts, § 500, comment a).

B.

In the alternative, Metropolitan Edison sought a jury instruction that punitive damages would only be proper if its employees knew that the capacitor was energized, but told Mr. Takes it was de-energized and safe to paint. N.T. 2/26/92 at 654-657. If the jury believed Mr. Takes’ trial testimony to this effect, it would support the imposition of punitive damages. Metropolitan Edison sought to prove that Mr. Takes ignored its warnings about the capacitor, so even if the jury found the utility negligent it would have no basis for awarding punitive damages. If the jury had to believe one or the other version of events, then Metropolitan Edison’s request for a fact-specific instruction would make sense. .

Metropolitan Edison’s theory is flawed, though, because it presumes that the jury had to choose one story or the other, when the evidence presented could have supported other fact situations which outrage. Here, the jury might have given less credence to both Mr. Takes’ and the utility’s oral testimony, and chosen to rely more on the extensive documentary evidence. This evidence established that through the contracting process and from the work specifications, Mr. Takes was led to believe that the entire substation would be deenergized for painting. In less hazardous circumstances a failure to warn might establish no more than mere negligence. With a live, 5-kilovolt capacitor on the premises, a jury could certainly find the sort of reckless indifference which calls for a punitive damage award. Hence, we agree with the trial court that the punitive damage instructions need not have been framed by Metropolitan Edison’s intentional misrepresentation theory, since other, reasonable views of the evidence could support a punitive damage award.

C.

Metropolitan Edison finally argues that the trial court misstated the law on punitive damages in its jury charge and in the verdict interrogatories. We agree that the court erred in introducing negligence concepts into the punitive damage issue.

Verdict interrogatory number nine dealt with punitive damages. During the court’s instruction on the general principles of punitive damages, the following exchanges took place:

[The Court, charging the jury]: ... The amount of punitive damages awarded must not be the result of passion or prejudice against Metropolitan Edison on the part of the jury. The sole purpose of punitive damages and the only purpose for which you may make such an award, if you were to make such an award and set an amount of punitive damages, is to punish Metropolitan Edison’s outrageous conduct, if you were to find it as such, and to deter Metropolitan Edison and others from commission of like acts.

Question number nine asks that very question: Do you find that Metropolitan Edison acted in a grossly negligent, reckless, willful or wanton manner in causing injuries to Mr. Takes, and if you do, what damages do you find? Gentlemen, are there any suggested corrections to the punitive damages, additions or corrections to the punitive damages instruction?

AT SIDE BAR:

[Defense counsel]: Just to that page, your Honor?

THE COURT: Yes, just to that page.

[Plaintiffs’ counsel]: Your Honor, I would like you to request the court to charge the standard jury instruction on punitive damages, 1400.

THE COURT: I will do that.

[Defense counsel]: My only objection, your Honor, is I don’t think that you have defined exactly the extent that you’ve got to go to show reckless.

THE COURT: A person’s conduct is outrageous when he acts with a bad motive, or when he acts with a reckless indifference, and I’m about to charge that.

[Defense counsel]: Fine, Judge.

IN OPEN COURT:

[The Court, continuing to charge the jury]: ... A person’s conduct is outrageous, and included among that would be reckless, negligent, willful or wanton, when that person acts with a bad motive or when he acts with reckless indifference to the interests of others. That is the definition with which we approach the issue.

Id. at 832-834 (emphasis added).

The jury later returned with its verdict for the Takes. The verdict slip read:

QUESTION 9:

Do you find that Metropolitan Edison acted in a grossly negligent, reckless, willful or wanton manner in causing injuries to Mr. Takes?

Yes JX_

No_

If you answer “Yes” proceed to Question No. 10. Otherwise, return to the courtroom.

QUESTION 10: (Answer only if you answered “Yes” to Question No. 9)

State the amount of punitive damages you award for plaintiff against defendant:

Steve Takes $3,000,000.00

Catherine Takes $_00.00

R. 44, Verdict Slip (emphasis added). The verdict was read in open court.

[Court clerk]: Question number nine: Do you find that Metropolitan Edison acted in a grossly negligent, reckless, willful or wanton manner in causing injuries to Mr. Takes?

[The jury foreperson]: Yes, we do.

[Court clerk]: Question ten: State the amount of punitive damages you award for Plaintiff against Defendant?

[Jury foreperson]: Three million dollars.

We have rejected argument that any mistake was waived by Metropolitan Edison’s failure to object at trial. In the alternative, the Takes argue that the charge and interrogatories were a correct statement of the law.

The trial court’s charge and verdict interrogatories did not correctly state Pennsylvania law, though.⁴ Our high court has specifically held that punitive damages may not be awarded for negligent, or even grossly negligent conduct. SHV Coal, supra at 495, 587 A.2d at 705; see also Smith, supra at 345, 564 A.2d at 211. We have defined outrageousness as “willful, wanton or reckless conduct.” SHV Coal, supra at 493, 587, A.2d at 704. Verdict interrogatory number nine would have been a fair statement of the law if it had asked “Do you find that Metropolitan Edison acted in a reckless, willful or wanton manner in causing injuries to Mr. Takes?” The trial court misinstructed the jury by conjunctively adding the qualifier “grossly negligent” to describe the manner of conduct which could support punitive damages.

Likewise, the trial court almost quoted the standard jury instruction in defining outrageousness at defense counsel’s request. This instruction uses the definition from the Restatement of Torts: “A person’s conduct is outrageous when he acts with a bad motive or when he acts with reckless indifference to the interests of others.” Restatement (Second) of Torts § 908(2), quoted in Pennsylvania Suggested Standard Civil Jury Instruction 14.00 (Pennsylvania Bar Institute, 1984). The trial court chose to expand upon the definition by adding some adjectives to describe outrageousness. The terms “reckless,” “willful” and “wanton” all correctly apply, but not the term “negligent.”⁵ Thus, by telling the jury that a “person’s conduct is outrageous, and included among that would be reckless, negligent, willful or wanton, when that person acts with a bad motive or when he acts with reckless indifference to the interests of others,” the trial court again misstated the law. See N.T. 2/26/92 at 834.

In addressing Metropolitan Edison’s challenge, the trial court first rejected the suggestion that its instruction permitted the jury to award punitive damages based on merely negligent conduct. Basically, the court held that plain words of interrogatory number nine required the jury to find at least grossly negligent conduct before awarding punitive damages. The court then concluded that “the jury was permitted to award damages had they concluded that the grossly negligent conduct rose to the level of outrageousness under the court’s instruction.” The Takes advance a similar argument.

Unfortunately, the plain language of verdict interrogatory number nine allowed the jury to award punitive damages upon finding nothing more than grossly negligent conduct. We cannot rely on the court’s oral explanation of outrageous conduct to correct the mis-worded interrogatory, because that too mistakenly incorporated the concept of negligence. The trial court never instructed the jury that negligent or grossly negligent conduct must rise to the level of outrageousness in order to support a punitive damages award.

Nor can we regard these language slips as harmless error. A lay juror might not appreciate the subtle distinctions our law gives to culpability terms such as negligent, reckless, willful and intentional. These are terms of art - which describe a hierarchy of mental states. See, e.g., 18 Pa.C.S.A. § 302 (defining culpability requirements for criminal laws). One might therefore posit that this entire issue, which lawyers and judges take so seriously, would not make much difference to a lay juror, and not have affected the outcome of the trial. Such a stance would be too cavalier. In this case, it was crucial for the jury to understand that it could award compensatory damages for negligent conduct, but a punitive damage award required something worse than negligence, or even gross negligence: outrageous conduct. The court carefully explained the concept of negligence to the jury in charging on the first five interrogatories which covered Metropolitan Edison’s negligence and Mr. Takes’ comparative negligence. If the jury imported this concept of ordinary negligence into its punitive damage considerations, as the court’s instructions invited it to do, then we must acknowledge the possibility that Metropolitan Edison could have been improperly penalized. Such error would mandate a new trial. See Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988) (a new trial will be granted for an erroneous jury charge, even where the extent of the prejudice cannot be precisely determined).

We have concluded that there was no error which infected the jury award of damages to appellees on the basis of negligence, but that there was error which requires vacation of the award of punitive damages. We further conclude that it would be unfair to subject appellees to retrial on the compensatory damage award because of the error which affected the award for punitive damages and, thus, we award a new trial as to punitive damages only. We recognize that entitlement to punitive damages will require a specially constructed retrial where the jury will hear evidence of the facts and be duly instructed as to the issue of entitlement to and amount of punitive damages. To do otherwise would unreasonably subject appellees to retrial of the compensatory damage claim which we conclude has already been fairly won.⁶

Verdict and judgment for compensatory damages affirmed.

Verdict and judgment for punitive damages reversed and vacated.

New trial awarded for punitive damages only.

OLSZEWSKI, J., files a dissenting opinion in which CIRILLO, and POPOVICH, JJ., join.

1 . The award for delay damages brings the total to $4,975,730.35.

2 . We have examined the original record and find that, in quoting the excerpt from the record in his opinion reproduced above, the court engaged in a degree of paraphrasing from the exact terminology to be found in the original record.

3 . Metropolitan Edison also contends that the punitive damage award was excessive, and denied the utility due process of law. Metropolitan Edison does not develop or support these contentions at all. We will therefore note that the punitive damage award, while large, was only about twice the amount of the compensatory damage award — hardly an unreasonable relationship. Cf. Kirkbride v. Lisbon Contractors, 521 Pa. 97, 102-104, 555 A.2d 800, 803-804 (1989) (punitive damages need not bear any relationship to compensatory damages, but may be reduced where they shock the court’s conscience). Since Metropolitan Edison has not offered any basis for a remittitur of the punitive damage award, we will not arbitrarily eliminate or reduce it.

4 . Whether the jury was accurately instructed is a question of law, which we review de novo. Morrison v. Dept. of Public Welfare, 538 Pa. 122, 132, 646 A.2d 565, 570-571 n. 8 (1994).

5 . The comments to the suggested instruction note that older versions used a string of adjectives to define outrageous conduct: “malicious, wanton, reckless, willful, or oppressive.” These multiple qualifiers, while correct, were likely to confuse juries. The Subcommittee on Civil Jury Instructions therefore adopted the Restatement’s more concise language.

We do not mean to suggest that judges should never go beyond quoting the suggested standard instructions for fear of making a mistake which could taint the verdict. Recent research indicates that pattern instructions can be incomprehensible to the lay juror, and judges should make an effort to explain the law in plain English. See Shari s. Diamond, Instructions Frequently Baffle Jurors; Although the Vast Majority of Jurors Say They Follow What the Court Tells Them, Studies Show Instructions Are Often Misunderstood, National Law Journal, p. Cl, 6/6/94. The law must still be accurately stated, though.

6 . Appellant also claims that the compensatory and punitive damage awards were impermissably excessive. In view of our disposition, we need not address the argument as to punitive damages. (See, however, Footnote 3 supra). The claim as to compensatory damages is stated only in general terms and is not supported by any principled argumentation. We do not find the compensatory damages to be excessive.