Appeal from the Order entered September 23, 1982 in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 78-19684, Issue No. 107950
Richard K. Willman, Pittsburgh, for appellant in No. 1322 and for appellee in No. 1323.
William R. Caroselli, Pittsburgh, for appellant in No. 1323 and for appellee in No. 1322.
Patrick R. Riley, Pittsburgh, for Owens, appellee.
Kathleen S. McAllister, Pittsburgh, for Celotec, appellee.
Cercone, President Judge, and Spaeth, Hester, Cavanaugh, Wickersham, Wieand and Hoffman, JJ.
[ 349 Pa. Super. Page 49]
This is an asbestosis case. It is before us on remand from the Supreme Court of Pennsylvania. We had reversed the trial court's order denying appellant's post-trial motions and had ordered a new trial on damages. Martin v. Johns-Manville Corp., 322 Pa. Super. 348, 469 A.2d 655 (1983). The Supreme Court reversed and remanded with instructions that we consider an issue that we had found it unnecessary to decide: Whether the trial court erred in instructing the jury that it could reduce any award of damages for appellant's disability by the percentage of his disability due to cigarette smoking. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985).*fn1 On this issue we affirm.
In 1978 appellant, who had been an asbestos worker for thirty-nine years, became unable to work. His family physician, Arthur R. Koenig, M.D., had previously diagnosed appellant as having emphysema. The causes, he thought, were appellant's exposure to asbestos products and his cigarette smoking. N.T. Vol. III at 184-86. Appellant became a smoker in about 1941. N.T. Vol. I at 349. His smoking increased over the years and in the 1960's and 1970's he was smoking two packs of cigarettes per day. Id. at 350.
On April 16, 1978, appellant filed a complaint alleging that the defendants who had manufactured the asbestos products that he had worked with over the years were strictly liable for his disability on the theory that they had failed to warn of the dangerous propensities of those products. The case was tried to a jury from November 9 to 24, 1981. Appellant states in his brief that "loss of past and future earning capacity taken to a work expectancy of sixty-five years of age was in excess of $177,000." Brief
[ 349 Pa. Super. Page 50]
for Appellant at 9. See N.T. Vol. III at 134-37.*fn2 The jury awarded appellant $67,000.
Appellant argues that there was no factual basis for the trial court to charge the jury that it could reduce the amount of any award of damages by the amount of appellant's disability due to his cigarette smoking. The trial court's charge in this regard was as follows:
If after considering all of the evidence you find that Martin's condition was solely due to his smoking cigarettes, you would not award him any damages. If, however, you find that his condition was solely due to exposure to asbestos, then you would award him the full amount as you determine those damages to be. If, however, you find that his condition is due both to his cigarette smoking and to his exposure to asbestos, then you first determine what the total amount of damages are, and then the next thing you do is determine what percent of his condition is due to cigarette smoking, and then you will reduce the total amount by the percentage that you find is due to cigarette smoking.
In its opinion the trial court cites Section 433A of the Restatement (Second) of Torts in support of its charge. That section provides:
(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.
Restatement (Second) of Torts § 433A (1965).
It was for the trial court, as an initial matter, to determine whether the evidence permitted apportionment:
[ 349 Pa. Super. Page 51]
It is the function of the court to determine
(b) whether the harm to the plaintiff is capable of apportionment among ...