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CLIFFORD B. HILL v. COMMONWEALTH PENNSYLVANIA (03/15/89)

decided: March 15, 1989.

CLIFFORD B. HILL, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF CORRECTIONS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Clifford B. Hill, Jr. v. Pennsylvania Bureau of Corrections, No. 86-09947.

COUNSEL

Jerome J. Reitano, for appellant.

J. Matthew Wolfe, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellee.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig. Judge Barry concurs in the result only.

Author: Craig

[ 124 Pa. Commw. Page 173]

Clifford B. Hill, Jr. appeals from an order of the Court of Common Pleas of Montgomery County that denied Hill's motion for a new trial on the grounds of inadequacy of damages after a jury rendered a verdict in his favor in his negligence suit against the Bureau of Corrections (bureau) for personal injuries.

The issue is whether the trial judge abused her discretion by denying Hill's motion, where the jury found the bureau to be 100% liable for his injuries but awarded only $1800 damages beyond payment of his medical bills, which totaled $5,844.

Most of the material facts of this case are not in dispute. On May 12, 1984, Hill, an inmate of the State Correctional Institution at Graterford, was trying out for a prison baseball team. The practice session was taking place on the athletic field on the prison grounds. The field also was used for playing football in the fall. When the field was set up for football, goal posts were installed in holes in the field containing metal sleeves. When the goal posts were not in place, the holes were covered by caps that screwed snugly onto the sleeves but were not otherwise locked or secured.

As Hill was running to catch a fly ball hit toward him in the outfield, his left foot became caught in a goal post hole from which the cover had been removed. Hill fell backward to the ground, fracturing his ankle in three places. After some of the other ballplayers carried Hill from the field, he was taken to Montgomery Hospital. There Dr. Bruce Menkowitz diagnosed Hill as suffering

[ 124 Pa. Commw. Page 174]

    from a trimalleolar fracture of the left ankle. The next day Dr. Menkowitz performed open reduction internal fixation surgery on Hill's ankle, which involved making two separate incisions and securing the fractures with five metal screws and one plate. The doctor then applied a cast that covered most of Hill's leg.

After five days in the hospital, Hill returned to the institution, walking on crutches. He was not able to return to his job in the prison tailor shop for three weeks. Approximately six weeks after the operation, Hill's cast was removed. He continued to walk with crutches for a period of one month after that. Hill continued to complain of pain in the ankle for over a year, and the institution provided him with medication for pain. He was admitted to Wilkes-Barre Hospital in September of 1985 for surgical removal of the metal hardware.

A panel of arbitrators heard this case on October 6, 1986. The arbitrators awarded Hill damages in the amount of $17,341.74. The bureau appealed from that decision to the Court of Common Pleas of Montgomery County. The case was tried before a jury on July 20 and 21, 1987. The jury found the defendant bureau to be 100% negligent. They awarded Hill damages in the amount of his medical expenses plus an additional $1800.

Hill filed a motion for a new trial on damages and a motion for additur. By order of December 30, 1987, the trial judge denied the motion for a new trial, and Hill has appealed from that order.

Likelihood of Compromise

One principle relating to review of a small damages award is that compromise verdicts are expected and allowed. Elza v. Chovan, 396 Pa. 112, 115, 152 A.2d 238, 240 (1959). A compromise verdict is one where "the jury, in doubt as to defendant's negligence or plaintiff's freedom from contributory negligence, brings in a verdict for

[ 124 Pa. Commw. Page 175]

    the plaintiff but in a smaller amount than it would have if these questions had been free from doubt." Phelps v. Britton, Inc., 412 Pa. 55, 60 n.3, 192 A.2d 689, 692 n.3 (1963). Logically, when this issue is raised, a reviewing court should consider it first, because if the small award probably was the result of a permissible compromise, then the award was not intended to be "adequate" in the sense of being reasonably related to the damages proved.*fn1

Where, as here, a defendant resisting a motion for a new trial on the grounds of inadequacy argues that the small award may have resulted from compromise on the issue of liability, then the reviewing court must evaluate the likelihood of such a compromise. Courts routinely have done so. See, e.g., Hose v. Hake, 412 Pa. 10, 192 A.2d 339 (1963); McIntyre v. Clark, ...


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