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Kindermann v. Cunningham

Superior Court of Pennsylvania

February 11, 2015


 Argued,  March 18, 2014

Appeal from the Order Entered May 16, 2013. In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): 110900205.

Steven E. Wolfe, Holland, for appellants.

Carol A. VanderWoude, Philadelphia, for appellee.



Page 192


Paul Kindermann, Jr. and his wife, Karen Kindermann, appeal from the May 16, 2013 order entered in Mr. Kindermann's favor in a negligence action that Appellants brought to recover damages caused by an ankle injury Mr. Kindermann sustained in a boating accident. The jury found Mr. Kindermann and Joseph Cunningham, the operator of the boat, each fifty percent negligent and the trial court molded the $10,000 verdict to $5,000, reflecting Mr. Kindermann's comparative negligence. No amount was awarded for Mrs. Kindermann's loss of consortium. The Kindermanns appeal from the trial court's refusal to order a new trial limited to damages. After thorough review, we affirm.

The trial court summarized the pertinent facts as follows:

Paul Kinderman[n] (Kinderman[n]), who lives in Bristol, Pennsylvania, with his wife Karen (Karen), accepted an invitation to go fishing on defendant Joseph Cunningham's boat off of Cape May, New Jersey. In addition to Kinderman[n] and Cunningham, there were three other passengers: Carl Kinderman[n] (Paul's uncle), Michael Brennan and Frank Grecco. While out on the water the boat encountered the wake of a large car carrier ship going in the opposite direction. Joseph Cunningham who was piloting the boat, shouted, " Hold on," and Kinderman[n], who was sitting on a storage box affixed to the deck near the front of the boat, was thrust into the air and landed on the deck. He suffered two broken bones in his right ankle requiring surgery that involved inserting a plate and screws. He was disabled and out of work for about fourteen weeks when he was released to work without restriction.

Trial Court Opinion, 10/2/13, at 2 (citations to record omitted).

The Kindermanns commenced the within action against Mr. Cunningham on September 6, 2011. At the jury trial commencing April 30, 2013, liability was hotly contested. The factual witnesses presented conflicting accounts of the events, upon which the expert witnesses relied to form their opinions, leading up to Mr. Kindermann's injury. Mr. Kindermann's medical bills were stipulated to be $28,541.15; his lost wages totaled $8,872.50. On May 2, 2013, the jury returned a verdict finding Mr. Kindermann fifty percent negligent and Mr. Cunningham fifty percent negligent, and awarding damages in the amount of $10,000 for Mr. Kindermann and zero dollars for Mrs. Kindermann on her consortium claim. The court molded the verdict to $5,000 to reflect Mr. Kindermann's negligence.

The Kindermanns filed a timely motion for post-trial relief seeking either judgment notwithstanding the verdict (" n.o.v'). or a new trial limited to damages only. The trial court denied the motion, and this appeal followed. On appeal, the Kindermanns raise four issues, all of which challenge the trial court's failure to award a new trial limited to damages. They contend that the damages were arbitrary and

Page 193

contrary to undisputed evidence and the court's charge. They also maintain that the verdict was shockingly insufficient given Mr. and Mrs. Kindermann's uncontested injuries and losses.

We have long-recognized that

" Trial courts have broad discretion to grant or deny a new trial . . . [and,] absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial." Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1121-1122 (Pa. 2000) (internal quotations and citations omitted). In addition, " [t]he trial court's decision whether to limit a new trial to a particular issue or grant a new trial as to all issues will not be reversed absent an abuse of discretion." Chiaverini v. Sewickley Valley Hosp., 409 Pa.Super. 630, 598 A.2d 1021, 1024 (Pa. Super. 1991).

Banohashim v. R.S. Enters., LLC, 2013 PA Super 257, 77 A.3d 14, 22-23 (Pa.Super. 2013).

Where, as here, the Kindermanns sought a new trial as to damages only, other principles govern our review. Our High Court has held,

" new trials may be limited to specific issues only when this procedure will be fair to both parties. Where the question of negligence or contributory negligence is not free from doubt, it is an abuse of discretion for the trial judge to grant a new trial on the issue of damages alone." Gagliano v. Ditzler, 437 Pa. 230, 263 A.2d 319, 320 (Pa. 1970) (internal quotations and citations omitted); Nogowski v. Alemo-Hammad, 456 Pa.Super. 750, 691 A.2d 950, 958 (Pa. Super. 1997) (internal quotations and citations omitted). Specifically: a trial court may grant a new trial limited to the issue of damages only where (1) the question of liability is not intertwined with the question of damages, and (2) the issue of liability is either (a) not contested or (b) has been fairly determined so that no substantial complaint can be made with respect thereto. Gagliano, 263 A.2d at 320; see also Mirabel v. Morales, 2012 PA Super 241, 57 A.3d 144, 152 (Pa. Super. 2012).

Banohashim, supra at 23.

The trial court characterized this as " a close case[,]" one which arose out of an accident involving [a] mix of family, friends and acquaintances who were out fishing on a recreational boat on a clear, otherwise uneventful day and in which no other passenger on the boat claimed either injury or fear of injury." Trial Court Opinion, 10/2/13, at 10. Although the award was " low enough to raise an eyebrow," the court did not find it shocking. Id. at 8. Furthermore, it bore some relationship to the evidence, and the award did not defy " common sense or logic." Id. at 10. The court concluded that liability had been fairly determined and that the $10,000 verdict was a compromise verdict that should not be disturbed on appeal. Id. at 10 n.1. It reasoned that since Mrs. Kindermann's consortium claim was derivative of her husband's claim, it was " subject to the same compromises for lack of evidentiary integrity as the husband's claim. Beswick v. Maguire, 2000 PA Super 60, 748 A.2d 701, 705 (Pa.Super. 2000) ( en banc )." Id.

The Kindermanns largely ignore the trial court's characterization of the verdict as one involving a compromise. Instead, they argue that the jury's award of $10,000 in damages to Mr. Kindermann is " shocking, arbitrary, contrary to the evidence to the law" since it represents " a mere 27% of his total stipulated and uncontested economic damages of $37,413.65[.]" Appellants' Brief at 22. Furthermore, they rely upon Burnhauser v. Bumberger, 2000 PA Super 23, 745 A.2d 1256 (Pa.Super. 2000), ...

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