J-A04033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ERIKA STEUDLER                          :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 1407 EDA 2018
 KIRKLAND KEATING                        :

             Appeal from the Judgment Entered April 20, 2018
              In the Court of Common Pleas of Monroe County
           Civil Division at No(s): 8795 CV 2013, 8856 CV 2013



 MARIA CAMACHO, ADMINISTRATRIX           :   IN THE SUPERIOR COURT OF
 TO THE ESTATE OF VICTOR ANGEL           :        PENNSYLVANIA
 RESTO,                                  :
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :   No. 1427 EDA 2018
                                         :
 KIRKLAND KEATING                        :

             Appeal from the Judgment Entered April 20, 2018
              In the Court of Common Pleas of Monroe County
           Civil Division at No(s): 8795-CV-2013, 8856-CV-2013


BEFORE:    LAZARUS, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                          FILED MARCH 06, 2019

      These are consolidated appeals filed by plaintiffs Erika Steudler and

Maria Camacho, Administratrix of the Estate of Victor Angel Resto (Decedent)

(collectively, Plaintiffs) from judgments entered by the Court of Common Pleas


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A04033-19


of Monroe County in favor of the defendant Kirkland Keating (Defendant) on

jury verdicts in a personal injury action and a wrongful death and survival

action. For the reasons set forth below, we affirm.

      The two actions arose out of a vehicle-pedestrian collision that occurred

at approximately 10:00 p.m. on October 19, 2011 when Steudler and

Decedent were walking together along an unlit road. Defendant’s sport utility

vehicle (SUV) hit Decedent and he later died from his injuries. Defendant’s

SUV did not collide with Steudler.

      The two actions were consolidated in the trial court and tried together

in November 2017. At trial, Steudler, Defendant and the police officer who

came to the scene of the accident testified.       In addition, Plaintiffs and

Defendant called accident reconstruction expert witnesses. The time of the

collision was undisputed and it was undisputed that Decedent and Steudler

were walking in the dark without any flashlight on the same side of a two-lane

road as vehicles traveling the same direction, with their backs to approaching

traffic. N.T., 11/28/17, at 50, 55, 106-08, 119. Other facts concerning where

Decedent and Steudler were walking, Defendant’s driving, and the weather

and visibility conditions at the time of the accident were disputed. Defendant

testified that he was driving on the road between the yellow and white lines

when he hit Decedent. Id. at 185-87. Defendant testified that he did not see

Decedent before the accident and that the passenger side of the front of his

SUV collided with Decedent. Id. at 151, 154-57. Defendant and the police


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officer both testified that the road where the accident occurred was a dark

road without significant street lights and that it was raining heavily at the

accident scene.   Id. at 148-52, 158, 182-83, 214-16.         The police officer

testified that Decedent was wearing dark clothing. Id. at 221-22. The police

officer also testified that he found no tire marks or other markings indicating

that Defendant’s vehicle went off the road, that he found one of Decedent’s

shoes lying partially on the white line of the road, and that the collision threw

Decedent to the right, away from the road. Id. at 206-07, 211, 220-21, 226-

27, 230. Defendant’s expert opined that Decedent was walking on the road

itself at the time of the accident, based on Steudler’s testimony as to how she

and Decedent were walking and the width of the shoulder where Defendant

and the police officer testified that the accident occurred. N.T., 11/29/17, at

118-19, 122-25.

      The cases were submitted to the jury on verdict sheets that asked the

jury to determine first, whether Defendant was negligent; second, whether

Defendant’s negligence was “a factual cause in bringing about harm to”

Steudler or Decedent; and then to address comparative negligence and

damages only if the answers to both of those first two questions were “yes.”

Trial Court Record Item 112 Ex. A; N.T., 11/29/17, at 247-50. The jury was

also instructed that Plaintiffs, if they proved that Defendant was negligent,

had the additional burden of proving that Defendant’s negligence caused their

harm. N.T., 11/29/17, at 232, 241-43. Plaintiffs made no objection to this


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instruction or to the verdict sheets and did not contend when the cases were

sent to the jury that causation was undisputed or that the jury was required

to find causation if it found negligence. Id. at 158-68, 253.

       The jury returned unanimous verdicts finding that Defendant was

negligent, but that his negligence did not cause harm to Decedent and

Steudler, and, in accordance with the trial court’s instructions, the jury did not

answer the other questions on the verdict sheet. N.T., 11/29/17, at 254-56;

Trial Court Record Item 112 Ex. A. Plaintiffs filed timely post-trial motions

seeking a new trial. The trial court denied the post-trial motions and entered

judgment on the jury verdict in both cases. These appeals from the judgments

on the jury verdicts followed.

       In this Court, Plaintiffs argue that the trial court was required to grant

a new trial on the ground that the verdicts were against the weight of the

evidence.1 We do not agree.

       Our review of the denial of a motion for a new trial based on weight of

the evidence is limited. We review whether the trial court abused its discretion

in denying a new trial, not whether the verdict, in this Court’s opinion, is

against the weight of the evidence. Corvin v. Tihansky, 184 A.3d 986, 992




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1 While Decedent’s Estate lists three issues in its statement of the questions
involved, all are arguments that a new trial was required because the verdict
that Defendant was negligent but that his negligence was non-causal was
contrary to the evidence.

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(Pa. Super. 2018); In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super.

2013) (en banc).

      Because the trial judge has had the opportunity to hear and see
      the evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge …. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict
      was or was not against the weight of the evidence ….

Corvin, 184 A.3d at 992 (quoting Phillips v. Lock, 86 A.3d 906 (Pa. Super.

2014)). The trial court here thoroughly considered whether the jury’s verdicts

were against the weight of the evidence and concluded that they were not

because the issues of both negligence and causation were disputed and the

evidence was conflicting. Trial Court Opinion at 3-13.

      Plaintiffs argue that the jury could not have reasonably found that

Defendant’s negligence was non-causal because it was undisputed that the

accident fatally injured Decedent and that Steudler suffered some emotional

distress from the accident. A verdict for the defendant on causation grounds

can be set aside as contrary to the weight of the evidence where the evidence

at trial was undisputed that defendant’s negligence caused some injury to the

plaintiff or where the jury finds the defendant negligent, there was no

evidence of any other possible cause of the accident, and it was undisputed

that the accident injured plaintiff. Bostanic v. Barker-Barto, 936 A.2d 1084,

1088 (Pa. Super. 2007) (defendant’s expert conceded liability for the

accident); Kraner v. Kraner, 841 A.2d 141, 143-46 (Pa. Super. 2004) (jury

found defendant driver negligent in single-vehicle accident and it was

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undisputed that plaintiff passenger suffered some injury in that accident);

Smith v. Putter, 832 A.2d 1094, 1096, 1098-99 (Pa. Super. 2003)

(defendant conceded that he negligently ran a stop sign and hit plaintiff’s

vehicle and some injury from collision was undisputed); Campagna v.

Rogan, 829 A.2d 322, 324, 328-30 (Pa. Super. 2003) (jury found that

defendant was negligent, defendant conceded that he caused the accident,

and defendant’s medical expert conceded that plaintiff suffered some injury in

the accident); Andrews v. Jackson, 800 A.2d 959, 960, 962-65 (Pa. Super.

2002) (negligence was undisputed and only dispute was extent of plaintiff’s

injuries from accident caused solely by defendant).

      A new trial, however, cannot be granted on the ground that the verdict

was against the weight of the evidence if the evidence at trial was conflicting

and the jury could have decided in favor of either party. Corvin, 184 A.3d at

993. If there is any support in the record for the trial court’s denial of a motion

for a new trial based on weight of the evidence grounds, this Court must

affirm. Id. at 992-93. A verdict that the defendant was negligent and that

his negligence did not harm the plaintiff cannot be set aside as contrary to the

weight of the evidence simply because it was undisputed that the accident

injured the plaintiff, if the defendant’s negligence and its causal relationship

to the accident were in dispute and there was evidence from which the jury

could find that the defendant’s negligence did not cause the accident. Koziar

v. Rayner, __ A.3d __, __, 2018 PA Super 331, *8-*14 (filed Dec. 7, 2018)


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(grant of new trial on weight of the evidence grounds was reversible error,

even though defendants were found negligent and defendants conceded that

plaintiff was injured in her fall, because jury could have found that plaintiff’s

negligence and not defendant’s negligence caused the fall); Daniel v.

William R. Drach Co., 849 A.2d 1265, 1268-73 (Pa. Super. 2004) (affirming

denial of new trial where jury found defendant negligent and it was undisputed

that plaintiff was injured because jury could have found that plaintiff’s injury

was caused by his losing control of the drum he was rolling rather than by the

oily, wet surface of the floor for which defendant was responsible).2

       Here, both negligence and the cause of the accident were contested and

the evidence at trial was conflicting. Evidence was introduced from which the

jury could conclude that Decedent was on the road itself, not on the shoulder,

when the accident occurred and could not be seen by a reasonably attentive,

non-negligent driver.         The finding that Defendant was negligent was



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2 Steudler asserted at oral argument that Daniel is distinguishable because
the verdict sheet in Daniel allegedly asked whether the defendant’s
negligence caused the accident and the verdict sheets here asked whether
Defendant’s negligence caused harm. That argument is without merit.
Nothing in this Court’s opinion in Daniel indicates that the verdict sheet asked
whether the defendant’s negligence caused the accident. To the contrary, this
Court described the jury’s verdict in Daniel as finding that the defendant “was
negligent, but that this negligence was not a substantial factor in causing Mr.
Daniel’s injury.” 849 A.2d at 1266 (emphasis added). Moreover, in Koziar,
where this Court reversed the grant of a new trial, the verdict sheet was
indistinguishable from the verdict sheets in these cases. 2018 PA Super 331,
*10 n.7 (verdict sheet asked whether defendants’ negligence was “a factual
cause of any harm” to plaintiff).

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consistent with a conclusion that Decedent was on the road and not visible

and that Defendant was not distracted and did not leave the road. Plaintiffs’

theories of negligence included the claim that Defendant was negligent

because his speed, even if he did not exceed the speed limit, was too fast for

weather conditions. N.T., 11/29/17, at 164, 196, 207-08, 216.

       The jury could therefore conclude under the evidence before it that

although Defendant was negligent, the sole cause of the accident was

Decedent’s walking in the dark, in dark clothing, on the road with his back to

traffic in poor visibility weather conditions. Accordingly, the verdict was not

against the weight of the evidence and the trial court properly denied Plaintiffs’

motions for a new trial. Corvin, 184 A.3d at 993, 995-96; Daniel, 849 A.2d

at 1273.3

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3 Steudler also argues that the trial court erred in denying a mistrial based on
testimony by the police officer that he found a digital scale at the scene of the
accident. This argument is barred by waiver. The police officer’s references
to a digital scale occurred on the first day of trial, on direct examination by
Plaintiffs. N.T., 11/28/17, at 206, 211. Neither plaintiff objected to this
evidence or sought any mistrial or instruction from the trial court at that time
or at any time while the police officer was testifying. Id. at 206-31.
Defendant did not elicit any testimony or evidence concerning the digital scale
and made no reference at all to the digital scale, and the two times that it was
mentioned by the police officer in Plaintiffs’ questioning were the only
references to a digital scale that occurred in front of the jury at any time in
the trial. Plaintiffs, however, did not raise any issue concerning the digital
scale references until Decedent’s Estate moved for a mistrial well into the next
day of trial, after the officer had finished his testimony and additional
witnesses had testified. N.T., 11/29/17, at 101-02. That motion was too late
to preserve any claim that the digital scale references required a mistrial.
Where a party does not object to a witness’s testimony until after the witness



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       Judgments affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/19




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has left the stand, the objection is not timely and the argument that the
testimony requires a mistrial is waived. Commonwealth v. Tucker, 143
A.3d 955, 961-63 & n.3 (Pa. Super. 2016); Allied Electrical Supply Co. v.
Roberts, 797 A.2d 362, 364-65 (Pa. Super. 2002).

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