J-A23017-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

KERIM AMADOU, AN INDIVIDUAL,                 :    IN THE SUPERIOR COURT OF
SHAMAEL RAHAMANI, A MINOR                    :          PENNSYLVANIA
INDIVIDUAL AND SHAKIB RAHAMANI, A            :
MINOR INDIVIDUAL                             :
                                             :
                  Appellants                 :
                                             :
       v.                                    :
                                             :
RONALD SARVER,                               :
                                             :
                  Appellee                   :     No. 1683 WDA 2015

            Appeal from the Judgment Entered September 25, 2015
                in the Court of Common Pleas of Allegheny County
                       Civil Division at No(s): GD 12-11773

BEFORE:       LAZARUS, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 07, 2017

      Kerim Amadou, Shamael Rahamani, and Shakib Rahamani (Appellants,

collectively) appeal from the September 25, 2015 judgment entered

following a jury trial in this motor vehicle collision case. We affirm in part,

vacate in part, and remand for further proceedings consistent with this

memorandum.

      Appellee Ronald Sarver’s truck rear-ended Amadou’s vehicle when

Amadou was stopped in traffic in Pittsburgh’s West End Circle with Shamael

and Shakib, the minor children of his fiancée Fati Rahamani, in the back

seat. Sarver admitted liability but contested damages. A jury determined

that Sarver: (1) caused Shakib no injury, (2) caused injury without damages



*Retired Senior Judge assigned to the Superior Court.
J-A23017-16


to Shamael, and (3) caused injury to Amadou in the amount of $1,400.

Appellants’ timely-filed post-trial motion was denied. This Court quashed an

interlocutory appeal filed before judgment was entered on the verdict. After

judgment was entered, Appellants timely filed another notice of appeal.

      Appellants present this Court with two questions for review, which we

have reordered for ease of disposition:

            [1.] Should a new trial be granted because the trial court
      refused to instruct the jury that evidence regarding a lack of
      seatbelt use cannot be used as a basis in refusing to provide
      damages for injuries caused by another’s negligence?

            [2.] Should a new trial be ordered on the ground that the
      jury’s verdict is inadequate when the jury awarded economic
      damages for wages that were lost as a result of pain yet failed to
      award non-economic damages for pain and suffering?

Appellants’ Brief at 6 (trial court answers omitted).

      We begin with our standard of review.

            [I]t is well-established law that, 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.

                                     ***

            Thus, when analyzing a decision by a trial court to
            grant or deny a new trial, the proper standard of
            review, ultimately, is whether the trial court abused
            its discretion.

      Moreover, our review must be tailored to a well-settled, two-part
      analysis:

            We must review the court’s alleged mistake and
            determine whether the court erred and, if so,


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J-A23017-16


            whether the error resulted in prejudice necessitating
            a new trial. If the alleged mistake concerned an
            error of law, we will scrutinize for legal error. Once
            we determine whether an error occurred, we must
            then determine whether the trial court abused its
            discretion in ruling on the request for a new trial.

Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288-89 (Pa. Super. 2015)

(citation omitted).

      Appellants first claim that they are entitled to a new trial because the

trial court refused to provide a curative instruction regarding evidence they

claim was admitted in violation of 75 Pa.C.S. § 4581. Appellant’s Brief at

31.   That statute, which inter alia requires the use of child passenger

restraint systems in vehicles, states in pertinent part the following:

      (e) Civil actions.--In no event shall a violation or alleged
      violation of this subchapter be used as evidence in a trial of any
      civil action; nor shall any jury in a civil action be instructed that
      any conduct did constitute or could be interpreted by them to
      constitute a violation of this subchapter; nor shall failure to use a
      child passenger restraint system, child booster seat or safety
      seat belt system be considered as contributory negligence nor
      shall failure to use such a system be admissible as evidence in
      the trial of any civil action….

75 Pa.C.S. § 4581(e).

      This Court has held that the subsection (e) of the statute “clearly and

unambiguously expresses the intent of the Legislature that evidence of non-

use of seat belts should be strictly prohibited in civil actions tried in

Pennsylvania courts, for any purpose.”      Gaudio v. Ford Motor Co., 976

A.2d 524, 536 (Pa. Super. 2009) (holding, in case against vehicle



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J-A23017-16


manufacturer for defective air bag, that the trial court erred in denying a

motion in limine to exclude evidence that the decedent was not wearing his

seat belt at the time his air bags deployed).

      The trial court addressed Appellants’ argument as follows:

      In the case at hand, defense counsel read an excerpt from a
      medical report that indicated that Shamael had been “sitting in
      back seat/car seat without seat belt fastened tightly.” (N.T.,
      162). [Appellants] interposed no immediate objection to the
      excerpt read from the physician’s report. Following conclusion of
      all testimony and immediately before the jury was charged,
      however, [Appellants] requested a curative instruction. The
      court refused to provide such an instruction. The matter could
      have promptly and less conspicuously been addressed with a
      timely hearsay objection or sidebar reference to the pertinent
      statute.     [Appellants’] belated[] request for a curative
      instruction[] invited an underscoring of what had been an
      incidental mention adequately rebutted by Ms. Rahamani’s
      insistence that “we always put her in the car seat” and “he [Mr.
      Amadou] always put her tightly [in the car seat].” (N.T., 162 -
      163).

             Further, [Appellants’] assignment of error presumes the
      legitimacy of [their] contention that [Sarver’s] allusion to a
      possibly unsecured restraint was improper. On the contrary, []
      Amadou had made repetitive reference to having secured the
      children in their restraints; had suggested that the use of
      restraints may have contributed to his own injuries; and had
      stated that Shamael’s injuries, specifically, may have resulted
      from the proximity of her secured car seat to the rear of
      [Amadou’s] driver seat (N.T. 21, 50, 51-52, 53).              That
      testimony, offered to explain the injuries that [Appellants]
      attributed to [Sarver’s] negligence, placed [Appellants] at risk of
      impeachment.

              While, of course, [Appellants] might contend a curative
      instruction should have been given even in view of the
      appropriateness of [Sarver’s] effort at impeachment, there is
      little indication of actual harm to [Appellants]. As to Shamael,
      proof of any harm related to the accident was tenuous.


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J-A23017-16



Trial Court Opinion, 7/17/2014, at 8-9.

      We are convinced neither that the trial court erred in declining the

instruction nor that Appellants were prejudiced by its absence.           First,

Appellants have failed to establish the complained-of reference alleges a

violation of section 4581 that is prohibited by subsection (e).       As quoted

above, the statute has been construed to prohibit evidence of non-use of

restraint systems.   Gaudio, 976 A.2d at 536.       Here, the jury heard that

Shamael was not tightly fastened into her car seat, not that there was any

failure to use a car seat. Furthermore, it would be fundamentally unfair to

allow Appellants to use the statute as both a sword and a shield, offering

evidence that there were injuries in spite of, or even because of, the use of

restraint systems, yet invoking the statute to preclude evidence that the

testimony the jury heard about such use was incomplete or false. Accord

Commonwealth v. Spiewak, 617 A.2d 696, 702 (Pa. 1992) (“The [rape

shield] statute cannot be both shield and sword.        Here a statute is so

designed to protect the witness’s interest in preventing prejudicial disclosure

of the witness’s past behavior.     It cannot at the same time preclude a

defendant from offering evidence which is so highly probative of the

witness’s credibility that such evidence is necessary to allow/permit a jury to

make a fair determination of the defendant’s guilt or innocence.”).




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J-A23017-16


      Even if the trial court did err in refusing the instruction, Appellants

failed to show any prejudice. They baldly assert that, because Shamael was

awarded no damages, “[i]t is clear that the trial court’s refusal to provide

this instruction operated to Appellants’ prejudice.” Appellants’ Brief at 31-

32.   They offer no citation to evidence that counters the trial court’s

representation that proof that Shamael suffered any harm caused by the

accident was “tenuous.”    Trial Court Opinion, 7/17/2014, at 9.     Indeed, it

appears to us more likely that potential prejudice was avoided, rather than

created, by the trial court’s declining to reference the irrelevant issue of

restraints in its charge to the jury.      Without a showing of prejudice,

Appellants are not entitled to relief. Maya v. Johnson & Johnson, 97 A.3d

1203, 1218-19 (Pa. Super. 2014) (“A reviewing court will not grant a new

trial on the ground of inadequacy of the charge unless there is a prejudicial

omission of something basic or fundamental.”).

      Because Appellants have not demonstrated either an error of law or

abuse of discretion in the refusal to charge the jury pursuant to 75 Pa.C.S.

§ 4581(e), we decline to reverse on that basis the trial court’s denial of their

motion for a new trial.

      However, we reach a different conclusion as to Appellants’ claim that

the award of only lost wages to Amadou was against the weight of the

evidence. This Court’s decision in Marsh v. Hanley, 856 A.2d 138, 139 (Pa.

Super. 2004), warrants Amadou a new damages trial.


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J-A23017-16


      The instant case is factually similar to Marsh. In that case, Hanley’s

vehicle collided with Marsh’s, Hanley admitted liability, and the jury awarded

Marsh $2,900 in damages. Marsh appealed after the trial court denied her a

new trial on damages.

            In her appeal, [Marsh] argue[d] that the trial court erred
      when it denied her motion for a new trial. She claim[ed] that
      the jury’s award apparently compensated her for lost wages
      only, and that the jury improperly awarded zero damages for
      pain and suffering. The jury’s verdict slip did not identify the
      specific nature of the award. However, the precise amount of
      lost wages was $2909.88, and in closing argument, [Marsh’s]
      counsel rounded the request for lost wages to $2900.00. It
      seems clear that the jury’s award was for lost wages only, and
      that they awarded zero dollars for pain and suffering.

Id. at 139. In reviewing the claim, this Court offered the following analysis

of the pertinent authority.

             In Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001), an
      en banc panel of this Court upheld a jury award of zero dollars
      for pain and suffering. The court acknowledged that not all
      injuries are serious enough to merit compensation. The Court
      held that under the facts of that case it was not reversible error
      to award zero damages for pain and suffering. The plaintiff in
      Majczyk claimed she suffered a herniated disc in a minor
      accident, causing ongoing pain and suffering, and requiring
      surgery. Though both sides’ experts conceded that plaintiff
      suffered some injury in the accident, the jury found in favor of
      the defendant, whose expert opined the herniated disc was not
      caused by the accident, and that plaintiff’s accident-related
      injuries were actually less severe, a mere “cervical strain.”

             The Majczyk Court specifically held that the jury may find
      for the defendant despite his obvious negligence when it does
      not believe the plaintiff’s pain and suffering, or that her injury is
      the sort that is compensable.          The Court quoted … the
      proposition that some injuries are the sort of “transient rub of
      life for which compensation is not warranted.” The Court further


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      held that “the determination of what is a compensable injury is
      uniquely within the purview of the jury.” The Court confirmed
      that credibility determinations lie within the province of the fact
      finder, and a jury is always free to believe all, part, some or
      none of the evidence presented. The Court concluded that,
      based on this record, the jury properly found that plaintiff’s
      accident-related injuries were minor, causing only a few days or
      weeks of discomfort, and not the sort that require compensation.
      See also, Davis v. Mullen, [] 773 A.2d 764 ([Pa.] 2001) (jury
      may decide that no pain and suffering damages are due, even
      where medical expenses are awarded).

             However, the instant case is different from Majczyk where
      the injury was not significant, and where the accident involved a
      minor rear end collision. This case is controlled by Burnhauser
      v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000). In
      Burnhauser, as here, the jury’s minimal damages award
      matched exactly the amount of plaintiff’s unreimbursed medical
      expenses ($1257.24).        The Court concluded that the jury
      therefore awarded zero dollars for pain and suffering, and this
      award bore no reasonable relationship to the loss suffered in a
      head-on collision, soft tissue injuries with pain that lasted for 6
      months. Essentially, the Court held as a matter of law that this
      was a compensable injury, the jury’s verdict of zero damages for
      pain and suffering was contrary to the evidence, and affirmed
      the trial court’s grant of a new trial. Like in Burnhauser, the
      instant case involved more than a minor rear end collision.
      Appellant’s car was struck twice on the driver’s side.          An
      ambulance transported appellant to the hospital; she suffered
      injuries which required her to take medications; her symptoms
      did not ameliorate for almost six months; and she lost
      considerable time from work. Unlike the plaintiff in Majczyk,
      appellant here suffered compensable injury, and we hold
      Burnhauser controls. We therefore reverse the trial court’s
      order denying a new trial on damages.

Marsh, 856 A.2d at 139-40 (footnote and some citations omitted; some

capitalization added).

      Applying this law to the case at hand, we first note that because the

jury concluded that Sarver’s negligence caused injury to Amadou and


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J-A23017-16


awarded him damages, there is no question that the jury determined that

Amadou did suffer a compensable injury.           Accordingly, the trial court’s

reliance upon cases such as Majczyk, in which the jury found that the

plaintiff suffered no compensable injury, is misplaced.

         Similarly, the Davis case cited in Marsh and relied upon by Sarver in

his brief,1 is materially distinguishable. In Davis, the jury awarded medical

expenses and property damages, but none for pain and suffering. Because

the evidence was such that the jury could have concluded either that Davis

suffered no pain or that the pain was not related to the accident, our

Supreme Court held that the trial court properly exercised its discretion in

denying Davis’s motion for a new trial. Davis, 773 A.2d at 766-67.

         The Davis result is logical: the facts that the vehicle was damaged and

the driver, who missed no work, eventually went to a medical provider do

not necessarily mean that the driver experienced any lasting discomfort as a

result of the collision.   Pain and suffering do not necessarily follow property

damage and medical expenses.

         That is not true for the economic damages awarded in the instant

case. The only evidence the jury heard about the cause of Amadou’s lost

wages was his testimony that he was unable to go to work was because he

was experiencing pain, and that the pain medication made him too dizzy to

drive.     N.T., 1/10/2014, at 58-63.        Amadou’s economic loss was not


1
    See Sarver’s Brief at 39-40, 54-55.

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J-A23017-16


separable from his pain; it was the result of his pain. Therefore, in choosing

to award Appellant lost wages, the jury necessarily had to believe that

Amadou experienced pain and suffering as a result of Sarver’s negligence.

Yet it gave him no award for that pain.         Under Marsh, such a verdict is

against the weight of the evidence and warrants a new trial on damages.

Accordingly, we vacate the judgment as to Amadou, and remand for a new

trial to determine the amount of damages he suffered as a result of Sarver’s

negligence.

      Judgment affirmed in part2 and vacated in part.       Case remanded for

further   proceedings   consistent   with     this   memorandum.   Jurisdiction

relinquished.

      Judge Lazarus joins.

      Judge Stabile files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/7/2017




2
  The record does not indicate that the jury necessarily found that Shamael
and Shakib suffered compensable injury. Accordingly, the new trial shall be
limited to determining the amount of damages suffered by Amadou. We do
not disturb the judgment as to Shamael and Shakib.

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