J-A06044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KAYLA M. SUPANCIK, AN                 :   IN THE SUPERIOR COURT OF
 INCAPACITED PERSON, BY                :        PENNSYLVANIA
 ELIZABETH SUPANCIK, PLENARY           :
 GUARDIAN OF THE PERSON AND            :
 ESTATE, AND APRIL SUPANCIK,           :
 INDIVIDUALLY                          :
                                       :
                                       :
              v.                       :   No. 295 MDA 2018
                                       :
                                       :
 TYLER M. ROBINSON                     :
                                       :
                   Appellant           :

             Appeal from the Order Entered January 29, 2018
   In the Court of Common Pleas of Susquehanna County Civil Division at
                            No(s): 2011-374

 KAYLA M. SUPANCIK, AN                 :   IN THE SUPERIOR COURT OF
 INCAPACITED PERSON, BY                :        PENNSYLVANIA
 ELIZABETH SUPANCIK, PLENARY           :
 GUARDIAN OF THE PERSON AND            :
 ESTATE, AND APRIL SUPANCIK,           :
 INDIVIDUALLY                          :
                                       :
                   Appellants          :
                                       :   No. 358 MDA 2018
                                       :
              v.                       :
                                       :
                                       :
 TYLER M. ROBINSON                     :

             Appeal from the Order Entered January 19, 2018
   In the Court of Common Pleas of Susquehanna County Civil Division at
                            No(s): 2011-374


BEFORE:   OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                     FILED APRIL 05, 2019



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06044-19


       All parties in this appeal1 seek review of an order entered in the Court

of Common Pleas of Susquehanna County which grants a new trial in their

vehicular negligence action. The central claims of the plaintiffs below (the

Supanciks) are that the trial court erred in (a) setting aside the jury’s verdict

that the defendant, Tyler Robinson (Robinson), was negligent and (b) denying

their post-trial motions to prevail on the issue of liability as a matter of law.

Conversely, Robinson argues, inter alia, that the trial court erred in setting

aside the jury’s verdict as to factual cause and ordering that the case be

entirely retried. We affirm the trial court’s rulings in all respects.

                                               I.

                                               A.

       The undisputed facts of the subject auto accident are set forth in the

trial court’s opinion:

       On June 9, 2009, [Robinson] was operating his motor vehicle on
       State Route 92 (SR 92)[.] [He] was traveling in the south bound
       lane of SR 92. There were no adverse, environmental or road
       conditions. At some time near dusk, as Robinson was operating
       his motor vehicle, he observed [Kayla Supancik] and her father,
       Peter Supancik . . . stepping over a guardrail off the northerly side
       of SR 92, which would have been to the left side of SR 92 in


____________________________________________


1 Robinson filed a notice of appeal on February 14, 2018, in case 295 MDA
2018. The Supanciks filed a notice of appeal on February 26, 2018, in case
358 MDA 2018. The two appeals were consolidated in accordance with
Pennsylvania Rule of Appellate Procedure 2136, which governs cross appeals.
For the purposes of the briefing schedule, the Supanciks were deemed the
“Appellants” and Robinson was deemed the “Appellee.” To avoid confusion,
the parties will be referred to here by name.


                                           -2-
J-A06044-19


     Robinson’s field of vision. [Kayla] was 9 years of age at the time
     of the accident.

     When first observed by Robinson, [Kayla and Peter Supancik]
     were approximately 400 to 500 feet away from Robinson’s
     oncoming motor vehicle. [Kayla and Peter] were standing very
     close to the roadway surface of SR 92. While not immediately
     apparent to Robinson, [Kayla’s] little sister was standing across
     the road from [Kayla and her father]. Robinson was eventually
     able to observe what he described as a 2 to 3-year-old child
     [Kayla’s sister] standing unaccompanied in her driveway and in
     close proximity to the southbound lane of SR 92, which would
     have been to the right of Robinson’s field of vision. Upon
     observing [Kayla and her father], Robinson slowed his vehicle
     down to 35 or 40 miles per hour.

     Robinson estimated that he continued to watch [them] for another
     8 to 10 seconds as he approached them at his reduced speed.
     When Robinson’s vehicle was approximately 70 to 100 feet from
     [Kayla and her father, Kayla] left her position near the guardrail
     off the eastern side of SR 92, cross through the northbound lane
     of SR 92, and entered the southbound lane of SR 92 into the path
     of Robinson’s motor vehicle. Robinson attempted to brake but
     was unable to avoid striking [Kayla] with his motor vehicle.

     Robinson attempted to veer his motor vehicle to the right but
     could not take further evasive action without striking [Kayla’s]
     little sister who was standing close to the roadway in a driveway
     area to the westerly side of SR 92. Based upon expert reports, it
     was determined that Robinson was traveling 40 miles per hour
     prior to braking.

     It was further determined that if Robinson had been traveling 32
     miles per hour, then [Kayla] would have been able to run safely
     across the road without being struck by Robinson’s breaking
     motor vehicle. It was also determined that if Robinson had slowed
     to 20 miles per hour he would have been able to successfully break
     prior to the point of impact with [Kayla].

Trial Court Opinion, 01/19/18, at 1-2.




                                    -3-
J-A06044-19


      At the close of evidence after a five-day trial, the jury was instructed to

determine whether Robinson was “negligent.” Neither party objected to the

following jury instructions on negligence:

      A person must act in a reasonably careful manner to avoid injuring
      others.

      The care required varies according to the circumstances and the
      degree of danger at a particular time.

      A driver owes a duty of care to a pedestrian who is attempting to
      cross a public highway. Likewise, a pedestrian has a duty to
      exercise reasonable care prior to attempting to cross a highway.

      As to a child pedestrian, a driver has a higher standard of care
      and is required to give due consideration to the fact that a child
      does not ordinarily exercise the same degree of caution for their
      (sic) own safety that an adult pedestrian normally would.

      The degree of care owed to a child pedestrian is determined
      by the following factors:

            (1) Whether the child when first observed was located
            in a place of danger or a place of safety;

            (2) If the child was in a place of danger, whether the
            driver had sufficient time to observe the child and react
            to the situation so as to avoid striking the child;

            (3) If when first observed the child was in a place of
            safety, whether there was a reasonable apprehension
            that the child might run into a place of danger; and

            (4) If there was a reasonable apprehension that the
            child might run from a place of safety into a place of
            danger, whether the driver had sufficient time to
            observe the child and react to the situation so as to
            avoid striking the child.

      The driver of a motor vehicle is not an insurer of the safety of a
      child. If a child should come suddenly into the path of the motor
      vehicle without warning so that an attentive driver who is

                                      -4-
J-A06044-19


     exercising due care under the circumstances could not have
     avoided the collision, then the driver is not negligent.

     If the driver of a motor vehicle has sufficient time to
     observe a child in a place of danger so as to allow the driver
     who is exercising due care a reasonable opportunity to
     avoid striking the child, then the driver is negligent.

     If the driver of a motor vehicle observes a child in a place of safety
     and there is a reasonable apprehension that the child will enter a
     place of danger, but there is not sufficient time to observe the
     child so as to allow the driver who is exercising due care a
     reasonable opportunity to avoid striking the child, then the driver
     is not negligent.

     If the driver of a motor vehicle observes a child in a place
     of safety and there is a reasonable apprehension that the
     child will enter a place of danger, and there is sufficient
     time to observe the child so as to allow the driver who is
     exercising due care a reasonable opportunity to avoid
     striking the child, then the driver is negligent.

     Where there is a reasonable apprehension that a child will leave a
     place of safety and enter a place of danger, a driver has a duty to
     bring his or her motor vehicle under such control that it can be
     stopped on the shortest possible notice of danger.

     You must decide how a reasonably careful person would
     act under the circumstances established by the evidence in
     this case.

     A person who does something a reasonably careful person would
     not do under the circumstances is negligent.

     A person also can be negligent by failing to act.

     A person who fails to do something a reasonably careful person
     would do under the circumstances is negligent.

Trial Transcript, 10/17/17, at 200-02 (emphases added).

     The corresponding interrogatory on the jury’s verdict slip asked whether

Robinson was negligent. The jury eventually determined that he was. What

                                     -5-
J-A06044-19


came next is the crux of this appeal – the jury also found that Robinson’s

negligent conduct was not a “factual cause” of Kayla’s injuries.

      The instructions given to the jury on “factual cause” had considerable

overlap with those in the negligence charge:

      In order for Kayla . . . to recover in this case . . . Robinson’s
      negligent conduct must have been a factual cause in bringing
      about harm. Conduct is a factual cause of the harm when
      the harm would not have occurred absent the conduct. To
      be a factual cause, the conduct must have been an actual,
      real factor in causing the harm, even if the result is unusual
      or unexpected. A factual cause cannot be an imaginary or
      fanciful factor having no connection or only an insignificant
      connection with the harm.

      To be a factual cause . . . Robinson’s conduct need not be the only
      factual cause. The fact that some other causes concur with . . .
      Robinson’s negligence in producing an injury does not relieve
      [him] from liability as long as his own negligence is a factual cause
      of the injury.

Trial Transcript, 10/17/17, at 202 (emphases added).

      By finding that Robinson’s negligence was not the factual cause of

Kayla’s injuries, the jury did not impose any damages. It also did not answer

the remaining questions on the verdict slip, including whether Kayla was

contributorily negligent.




                                      -6-
J-A06044-19


                                               B.

       The    Supanciks      moved     for     a    directed   verdict   and   judgment

notwithstanding the verdict (JNOV)2 as to factual cause. They argued that

they were entitled to a new trial as to damages alone, with liability decided in

their favor because the verdict on factual cause was against the weight of the

evidence, inconsistent with the negligence verdict, and the result of jury

confusion. The Supanciks asserted that even though the jury never decided

the issue of Kayla’s contributory negligence, they should still have won a

verdict on factual cause as a matter of law. In the alternative, the Supanciks

moved for a new trial on all issues.

       As the prevailing party, Robinson contended that the negligence and

factual cause portions of the verdict were consistent and supported by the

evidence. He interpreted the verdict as a reflection of the jury’s intent to find

him not liable. However, the trial court set aside the verdict of no factual



____________________________________________


2 JNOV is only proper in two situations. First, the movant may be entitled to
it if a court reviews the record and concludes that the law requires a verdict
in his favor, even when resolving all factual inferences against him; second,
the court may review the record evidence and find that a verdict for the
movant was “beyond peradventure.” Mirizio v. Joseph, 4 A.3d 1073, 1079
(Pa. Super. 2010). This standard is intended to prohibit courts from deciding
a disputed issue of material fact. See Renninger v. A & R Machine Shop,
163 A.3d 988, 995 (Pa. Super. 2017). Further, a new trial as to liability should
only be granted where (1) the issue is not “intertwined” with the issue of
damages, and (2) liability has been “fairly determined” or is “free from doubt.”
Kraner v. Kraner, 841 A.2d 141, 147 (Pa. Super. 2004) (citing Kiser v.
Schulte, 648 A.2d 1, 8 (Pa. 1994)).


                                             -7-
J-A06044-19


cause. It reasoned that where “there is no dispute that an accident caused

physical injury to a plaintiff and the jury concludes that the defendant was

negligent, then the weight of the evidence requires a finding that the

defendant’s negligence was the factual cause of the plaintiff’s injuries.” Trial

Court Opinion, 01/19/18, at 10-11.

      The trial court also denied the Supanciks’ motions for JNOV and directed

verdict, which was based on their contention that the negligence finding

determined that Robinson’s conduct was a factual cause of the accident as a

matter of law. The trial court instead set aside the finding of negligence due

to “serious questions as to how the verdict was reached.” Id. at 14-15.

      The trial court explained that during deliberations, the jury had

repeatedly asked about the definition of negligence. At one point, the jury

even sent a note indicating that it was deadlocked. It was only after the trial

court ordered the jury to continue deliberating that it found Robinson

negligent. The trial court determined that the jury’s decision to find Robinson

negligent but not a factual cause had to be a “compromise verdict.” Id. at

14. Because the verdict was inconsistent, the trial court ordered a new trial:

      Given that the record fails to disclose that the verdict was "fairly
      determined" and "free from doubt," and where the record actually
      raises serious questions as to how the verdict was reached, this
      court cannot enter JNOV as to the liability question. Instead, the
      matter will proceed to a new trial on all issues.




                                     -8-
J-A06044-19


Id. at 14-15.3 Both the Supanciks and Robinson appealed.4

                                               II.

       The parties in this case offer conflicting interpretations of the jury’s

verdict that Robinson was negligent but that his negligence was not the factual

cause of Kayla’s injuries. The heart of Robinson’s argument is that he could

have been both negligent and not the factual cause of the accident if another

party had been completely responsible. He asserts that he could have driven

negligently without his conduct being a legal cause of the accident.

       The Supanciks argue that the jury necessarily determined Robinson’s

liability in its negligence verdict making the separate verdict on factual cause

superfluous.     In short, the Supanciks and Robinson each claim that the

respective verdicts in their favor must take precedence over the other.

       The instructions and verdict slips provided to the jury in this case are

central to the disposition of the present appeal. See Maya v. Johnson &



____________________________________________


3 “Trial courts have broad discretion to grant or deny a new trial.” Harman
ex rel. Harman v. Borah, 756 A.2d 1116, 1121–22 (Pa. 2000).
Circumstances which justify the exercise of this discretion include when “the
original trial, because of taint, unfairness or error, produces something other
than a just and fair result, which, after all, is the primary goal of all legal
proceedings.” Id.

4 The trial court also denied the Supanciks’ related post-trial claims that
Robinson’s liability should have been decided as a matter of law and that the
issue of Kayla’s contributory negligence should not have been presented to
the jury. The trial court also denied without prejudice Robinson’s evidentiary
claims, finding that they could only be addressed at the new trial.


                                           -9-
J-A06044-19


Johnson, 97 A.3d 1203, 1222 (Pa. Super. 2014) (“The law presumes that the

jury will follow the instructions of the court.”). Here, the jury was instructed

in part that a driver of a motor vehicle “is negligent” when:

            [He has] sufficient time to observe a child in a place of
             danger so as to allow the driver who is exercising due care
             a reasonable opportunity to avoid striking the child[.]

            [He] observes a child in a place of safety and there is a
             reasonable apprehension that the child will enter a place of
             danger, and there is sufficient time to observe the child so
             as to allow the driver who is exercising due care a
             reasonable opportunity to avoid striking the child[.]

Trial Transcript, 10/17/17, at 200-02. Further, the jury had to decide whether

Robinson was negligent based on “the circumstances established by the

evidence in this case.” Id. The parties did not dispute that all of Kayla’s

injuries resulted from an accident involving a vehicle operated by Robinson.

      The jury marked down Robinson as negligent in the verdict slip.        As

framed by the wording of the above instructions, the jury found that Robinson

had a chance to avoid striking Kayla with his vehicle, but did strike her

because he failed to exercise due care. However, the jury was also given

a separate charge on factual cause which instructed that the element is

satisfied if “the harm would not have occurred absent the conduct,” and “the

conduct [was] an actual, real factor in causing the harm.” Id. at 202. The

jury’s finding that Robinson was not the factual cause cannot be reconciled

with its finding that his negligent driving caused the accident.




                                     - 10 -
J-A06044-19


       The instructions and the jury’s understandable confusion resulted in an

inconsistent verdict as to liability. The trial court could not decide that issue

in favor of either party because “a substantial conflict” existed and the trial

court would have abused its discretion by settling that jury question in the

absence of an adequate verdict. In light of the jury’s inconsistent findings,

the trial court granted the only remedy it could, an entirely new trial.5

Gagliano v. Ditzler, 263 A.2d 319, 320 (Pa. 1970) (affirming order granting

a new trial in a negligence action because liability was in dispute and “an

apparently inadequate verdict was returned.”).6

       Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/05/2019

____________________________________________


5 Robinson argues that since the Supanciks agreed to the instructions and
verdict slips provided to the jury, they were estopped from seeking to set
aside the factual cause verdict. However, the Supanciks clearly sought to
establish Robinson’s liability as a matter of law throughout the trial
proceedings and on appeal.        The Supanciks did not acquiesce to an
inconsistent verdict by agreeing to instructions and verdict slips which made
that result possible.

6 Because we affirm the trial court’s order granting a new trial, we need not
reach the other issues the parties raise in support of their respective appeals.

                                          - 11 -
