No. 1653 PHILADELPHIA, 1982, Appeal from Judgment entered in the Court of Common Pleas, Civil Division, of Columbia County, No. 976 of 1981.
Gailey C. Keller, Bloomsburg, for appellants.
David C. Dickson, Jr., Berwick, for appellee.
Rowley, Hester and Roberts, JJ. Rowley, J., concurred in the result.
[ 329 Pa. Super. Page 374]
This appeal was taken from an Order of Court, dated May 24, 1982, denying appellants' motion for a new trial. Appellants allege that the jury verdict entered in their trespass action was inadequate. The jury returned a verdict in favor of appellant Robert A. Deitrick and against appellee Ricky D. Karnes in the amount of $500.00; however, no amount was awarded appellant Jane S. Deitrick pursuant to her claim for loss of consortium.
Appellants' trespass action arose from a boating accident in the Delaware Bay on May 20, 1980. Appellant Robert A. Deitrick, appellee Karnes and two other gentlemen, Steven Sitler and Terry Payne, travelled from their Pennsylvania residences to Deitrick's Delaware cottage on May 18, 1980 for a fishing vacation. At 7:30 a.m. on May 20th, the foursome left the cottage in appellee's sixteen-foot fiberglass motor boat for a fishing spot fourteen miles into the Delaware Bay.
At 1:00 p.m., following three and one-half hours of fishing, the men decided to return to Deitrick's cottage. Appellee operated the boat from the right front seat, and Deitrick sat alongside him. Sitler and Payne occupied the two rear-facing seats located directly behind the front seats.
[ 329 Pa. Super. Page 375]
Appellee was operating the boat at twenty miles per hour. That speed enabled the boat to reach a "planing" or a level position. All members of the fishing party agreed that the water surface was "very smooth".
Shortly after commencing their return trip, Deitrick observed three "rolls" in the water one hundred and fifty to two hundred yards in front of the boat and within its path. These "rolls" were created by the incoming tide striking a subsurface bank. The bank extended from a depth of thirty feet to a depth of one hundred feet. It was created by the excavation of a shipping lane in the bay. The "rolls" were unlike waves insofar as they were stationary at positions above the subsurface bank.
Deitrick requested that appellee stop the engine, but appellee did not hear. Deitrick repeated his request and gestured to gain appellee's attention. Appellee heard Deitrick; however, he did not reach the throttle in time to cut the engine prior to encountering the first "roll". The boat climbed to the top of the "roll" and plunged ten to twelve feet through an air space to the lower water level. This sudden and violent drop hurled Deitrick from his seat into the boat's canvas canopy. When the boat touched water again, Deitrick settled onto the floor, twisted around his seat. Although they were tossed about the boat just as violently, the other men were not seriously injured. Deitrick, however, suffered a fractured lumbar vertebra.
Appellants maintain that the five-hundred-dollar verdict entered on behalf of Robert Deitrick and the verdict denying compensation to Jane Deitrick for loss of consortium were grossly inadequate. We agree; therefore, the Order will be reversed and the case remanded for new trial on the issue of damages only.
The amount of the verdict is an issue for the jury; it will rarely be held inadequate on appeal. Our Pennsylvania Supreme Court, in Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959), ...