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BETTY VILLAUME AND FRED VILLAUME v. EDWARD KAUFMAN AND JANE KAUFMAN (11/21/88)

filed: November 21, 1988.

BETTY VILLAUME AND FRED VILLAUME
v.
EDWARD KAUFMAN AND JANE KAUFMAN, APPELLANTS



Appeal from the Order entered January 20, 1988, Court of Common Pleas, Monroe County, Civil Division at NO. 2058, 1985.

COUNSEL

Joanne Kelhart, Bethlehem, for appellants.

Wieslaw T. Niemoczynski, Stroudsburg, for appellees.

Olszewski, Del Sole and Johnson, JJ.

Author: Johnson

[ 379 Pa. Super. Page 563]

This is an appeal from an order granting appellees Betty Villaume and Fred Villaume's motion for a judgment notwithstanding the verdict (judgment n.o.v.) and granting a new trial on damages. We reverse and reinstate the jury verdict.

A doberman pinscher owned by appellants Edward and Jane Kaufman entered the Villaumes' property and attacked the Villaumes' shetland sheepdog. The doberman, which had been kept chained to a revolving pole, was wearing his collar and was dragging his unbroken chain. Betty Villaume grabbed the doberman by the collar and attempted to pull him away from her dog. The fight and Betty Villaume's intermittent efforts to halt it continued for about fifteen minutes, at which point Jane Kaufman entered the fray and squirted the dogs with water from the lawn sprinkler. The fight stopped immediately. Betty Villaume sustained a dog bite on her left thigh and a broken finger on her right hand.

The Villaumes sued the Kaufmans, alleging that they were negligent in allowing the doberman to run free in violation of the Dog Law, 3 P.S. ยง 459-305.*fn1 They claimed that this negligence caused physical and mental injury to Betty Villaume and derivative injury to her husband. The case was tried before a jury. Following the close of evidence, the trial court denied the Villaumes' oral motion for a directed verdict on the issue of liability. The jury returned a verdict in favor of the defendant Kaufmans.

Following the verdict, the Villaumes filed post-trial motions for judgment n.o.v. and for a new trial. By order of

[ 379 Pa. Super. Page 564]

January 20, 1988, the Honorable Ronald E. Vican granted the motion. The trial court's opinion of the same date stated that the doberman's presence outside the Kaufman premises constituted negligence per se under Miller v. Hurst, 302 Pa. Super. 235, 448 A.2d 614 (1982) because it was a clear violation of the Dog Law. Therefore, the court wrote, violation of the Dog Law was the proximate cause of the Villaumes' injuries, and further, the Villaumes could not be held contributorily negligent for the manner in which they reacted to an emergency situation. Because the jury had returned a verdict in favor of the Kaufmans, thus making no assessment of damages, the court granted a new trial on the issue of damages alone. The Kaufmans' motion for reconsideration was filed and denied. This appeal followed.

In articulating a proper standard of review for this case, we recognize that the granting of a new trial for assessment of damages was an incident of the granting of the motion for a judgment n.o.v. in favor of the Villaumes. In this case, the trial court found the authority to override the jury verdict and to substitute its own findings on the basis of its reading of Miller v. Hurst, supra. Generally speaking, the standard of review of a trial court's grant of a motion for a new trial is whether the trial court palpably and clearly abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987). However, when the trial court gives a single reason for its grant of a new trial, its discretion is not at issue, but rather the validity of its legal justification is subject to review. Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 523 A.2d 723 (1987). See Boscia v. Massaro, 365 Pa. Super. 271, 529 A.2d 504 (1987).

Because the trial court based its decision upon a single legal rationale, its reading of Miller v. Hurst, we may review the validity of this legal justification. The trial court misread and misapplied Miller v. Hurst, supra. ...


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