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STARLINGS v. SKI ROUNDTOP CORP.

July 8, 1980

Herbert G. STARLINGS, Plaintiff,
v.
SKI ROUNDTOP CORPORATION t/d/b/a Ski Liberty and the Garcia Corporation, Defendants.



The opinion of the court was delivered by: RAMBO

MEMORANDUM

On January 26, 1977, the plaintiff was injured while skiing at Ski Liberty, a ski area located in Adams County, Pennsylvania. The instant action was filed in the federal court on the basis of diversity. Trial commenced on April 7, 1980. On April 8, 1980, the jury returned a verdict in favor of the plaintiff in the amount of $ 100,000. Judgment on the verdict was entered on April 9, 1980. Defendant timely filed post-trial motions, which include a motion for judgment notwithstanding the verdict, a motion for a new trial or in the alternative, for a remittitur of the damages. The defendant has withdrawn its motion for judgment notwithstanding the verdict.

 The defendant's request for a new trial is twofold:

 
1. the jury failed to find negligence on the part of the plaintiff; and
 
2. the court erred in permitting the jury to consider as part of the damage claim evidence of plaintiff's increased risk of arthritis.

 The standard applied to a motion for a new trial is much different than that applied to a motion for judgment notwithstanding the verdict. The court in Keystone Floor Products Co. v. Beattie Mfg. Co., 432 F. Supp. 869 (E.D.Pa.1977), clearly and succinctly described the distinction as follows:

 
In considering defendant's motion for judgment notwithstanding the verdict it is the Court's function to determine whether there is substantial evidence in support of the jury's verdict. A judgment n. o. v. may not be granted unless, as a matter of law, it is found that plaintiff failed to present a case for the jury, and that a verdict in defendant's favor should have been directed at the end of the trial. Neville Chemical Company v. Union Carbide Corp. (Neville), 422 F.2d 1205, 1210 (3d Cir. 1970); Gatenby v. Altoona Aviation Corporation (Gatenby), 407 F.2d 443 (3d Cir. 1968). Substantial evidence, that is, legally sufficient evidence, is evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions. Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969); Smith v. B. P. Tanker Company, Ltd., 395 F. Supp. 582 (E.D.Pa.1975). In making this determination the trial judge must view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Thomas v. E. J. Korvette, Inc., 476 F.2d 471 (3d Cir. 1973).
 
On the other hand, in considering a motion for new trial the trial judge's discretion goes further than a mere inquiry as to the sufficiency of the evidence. Even where there is substantial evidence the trial judge may set aside a verdict for the reason that it is against the clear weight of the evidence, or that damages are excessive, or that substantial errors occurred in the admission or rejection of evidence. Neville, supra at 1221; Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir. 1963); Lind v. Schenley Industries, Inc. (Lind), 278 F.2d 79, 87 (3d Cir. 1960); Wright & Miller, Federal Practice and Procedure : Civil ยง 2805.

 Although the trial judge's discretion in determining a motion for a new trial goes further than "mere inquiry as to sufficiency of the evidence", it is not limitless. In Tennant v. Peoria and Pekin Union Railway Co., 321 U.S. 29, 35, 64 S. Ct. 409, 412, 88 L. Ed. 520 (1944), the Court held that although a trial court may have come to a different conclusion, trial judges are not free to reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions.

 Addressing more particularly the issue of witness credibility, the court in Lind, supra, quoted with apparent approval an excerpt from Professor Moore's work, which states:

 
"Since the credibility of witnesses is peculiarly for the jury it is an invasion of the jury's province to grant a new trial merely because the evidence was sharply in conflict. The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts, and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not." Lind, supra at 97. (footnote omitted) (emphasis added).

 In the case sub judice, there were conflicting accounts about the accident. The jury weighed the evidence and the credibility of the witnesses and rendered its verdict accordingly. This court is satisfied that sufficient probative evidence supported the jury's finding on liability. Defendant's request for a new trial, with respect to liability, will be denied.

 Defendant's second basis for his motion for a new trial is that the court allegedly erred in permitting the jury to consider, as part of the damage claim, testimony on plaintiff's increased risk of arthritis. The pertinent testimony of Dr. William Smulyan is as follows:

 
Q You stated, Doctor, that you could either hear or feel some clicking or popping ...

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