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ROSELLA GRAY v. H.C. DUKE & SONS (08/17/89)

filed: August 17, 1989.


Appeal from the Judgment entered September 28, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3861 January Term, 1983.


Byron L. Milner, Philadelphia, for Duke & Sons, appellant (at 2945) and appellee (at 2946).

John F. Dougherty, Jr., Philadelphia, for Dairy Queen, appellant (at 2946) and appellee (at 2945).

Philip A. Ryan, Philadelphia, for Mast Development, appellee.

Cavanaugh, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 387 Pa. Super. Page 99]

These consolidated appeals are from the judgment entered below in an action for contribution. At appeal No. 2945 Phl 88, H.C. Duke & Sons, Inc. (Duke) contends that the trial court erred in denying its motion for judgment n.o.v. and a new trial on the grounds that the court (1) incorrectly submitted to the jury the question of apportionment of compensatory and punitive damages; (2) allowed a defendant's expert to testify as to the cause of the accident; and (3) refused to give a binding instruction that defendant Mast Development Company was negligent. At appeal No. 2946 Phl 88, Dairy Queen, Inc., International Dairy Queen, Inc., and American Dairy Queen, Inc., (collectively referred to herein as "Dairy Queen") also challenge the court's denial of their motion for judgment n.o.v. and a new trial on the issue of liability. For the reasons set forth below, we affirm.

The instant appeals arise from a contribution action that was instituted following the settlement of an underlying tort action filed by Rosella Gray. Rosella Gray was employed by a Dairy Queen franchise store located in King of Prussia. On October 8, 1981, Rosella Gray was operating a twin freezer ice cream machine, model number DR424 (DR424), when her right arm became entangled in the rotating auger shaft. As a result of the accident, Rosella Gray suffered severe and grave injuries requiring numerous

[ 387 Pa. Super. Page 100]

    extensive operations and continuous treatment to minimize her physical and psychological pain. Rosella Gray commenced an action against Duke, the manufacturer of the DR424, and Dairy Queen, the supplier. In the complaint, Rosella Gray asserted claims for negligence, products liability, and punitive damages against Duke but filed only a claim for negligence against Dairy Queen. Thereafter, Duke and Dairy Queen joined Mast Development Company (Mast), the original designer of the DR424, as an additional defendant.*fn1

Before the case proceeded to trial, Duke alone offered to settle with Rosella Gray for the sum of two million seven-hundred fifty thousand dollars ($2,750,000.00). The settlement offer was accepted and Rosella Gray signed a general release extinguishing her claims against all defendants. Duke subsequently commenced the instant action for contribution against Dairy Queen and Mast. At the conclusion of the trial, the jury returned a verdict finding in favor of Duke to the extent that Duke and Dairy Queen each were fifty percent (50%) negligent for the cause of Rosella Gray's injuries. In apportioning the settlement, the jury determined that six-hundred-eighty five thousand dollars ($685,000.00) represented compensatory damages and that the remainder of the settlement was attributable to punitive damages which could only be assessed against Duke. Additionally, the jury found in favor of Mast and against Duke on the ground that it was not causally liable for the injuries sustained by Rosella Gray. The court then molded the verdict to reflect the apportioning of liability and awarded Duke the sum of three-hundred-forty-two thousand five-hundred dollars ($342,500.00). Timely post-trial motions seeking judgment n.o.v. and a new trial were

[ 387 Pa. Super. Page 101]

    filed by Duke and Dairy Queen and later denied by the court.*fn2 Following the entry of judgment, these appeals ensued.

[ 387 Pa. Super. Page 102]



Appellant Duke contends that the trial court erred in denying its motion for a new trial on the ground that the apportionment of punitive damages was excessive and unfounded. Duke first argues that there was insufficient evidence relating to the issue of apportionment at trial to submit the question to the jury. According to Duke, the only evidence offered during trial relating to the distribution of compensatory and punitive damages was the uncontradicted testimony of its expert witness, the Honorable Paul J. Cody. Secondly, Duke argues that the court erred in submitting to the jury the responsibility of apportioning the settlement into compensatory and punitive damages between the joint tortfeasors without first providing the jury with specific guidelines to be followed in apportioning the damages. Without specific instructions, Duke claims that the only proper question for the jury was whether the settlement was reasonable. We disagree with these contentions.

Initially, we note that in reviewing an order denying a motion for a new trial, our court assesses "whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case." Sweitzer v. Dempster Systems, 372 Pa. Super. 449, 453, 539 A.2d 880, 881 (1988).

Duke's first argument is that there was insufficient evidence introduced at trial to merit submitting the issue of punitive damages to the jury. Pennsylvania has adopted Section 908 of the Restatement (Second) of Torts and its provisions governing punitive damages. Hoffman v. Memorial Osteopathic Hosp., 342 Pa. Super. 375, 383, 492 A.2d 1382, 1386-87 (1985) (citing Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358, 358 (1963); Medvecz v. Choi, 569 F.2d 1221 (3rd. Cir.1977)). Section 908 provides:

[ 387 Pa. Super. Page 103]

(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.

(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages the trier of fact can properly consider the character of the defendant's act, the nature and the extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Restatement (Second) of Torts ยง 908. See also DiSalle v. P.G. Pub. Co., 375 Pa. Super. 510, 544 A.2d 1345 (1988). It is within the province of the jury, as factfinder, to determine whether punitive damages should be awarded, and if so, the amount that should be awarded. See id., 375 Pa. Superior Ct. at 567, 544 A.2d at 1373. An award of punitive damages will be reduced on appeal only if we determine that the award is excessive under the facts of the individual case. Id.

At the trial, Duke called the Honorable Paul J. Cody as an expert witness.*fn3 The purpose of Judge Cody's testimony was to explain to the jury the mechanics of assessing an award of damages in negligence and product liability actions. During direct examination, Judge Cody testified that after reviewing the doctors' reports and medical expenses, he estimated that had Rosella Gray's case been tried before a jury, the compensatory damage value would ...

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