J-A09019-14


                              2015 PA Super 30

PAUL KINDERMANN, JR. AND KAREN                   IN THE SUPERIOR COURT OF
KINDERMANN,                                            PENNSYLVANIA

                        Appellants

                   v.

JOSEPH CUNNINGHAM,

                        Appellee                      No. 1604 EDA 2013


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


BEFORE: BOWES, OTT, and JENKINS, JJ.

OPINION BY BOWES, J.:                             FILED FEBRUARY 11, 2015

     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:
J-A09019-14


             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.




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     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 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, 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

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     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. McGuire, 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



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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, 745 A.2d 1256 (Pa.Super. 2000), in support of their contention

that Mr. Kindermann was entitled to damages for non-economic loss such as

pain and suffering usually associated with surgical repair of his broken ankle.

      Mr. Cunningham counters that the jury was permitted to compromise

the hotly contested liability issue by reducing the damages it elected to

award. See Gagliano, supra. According to Mr. Cunningham, the jury did

just that. He distinguishes the authorities relied upon by the Kindermanns in

support of a new trial limited to damages on the ground that those cases did

not involve compromise verdicts.      See Burnhauser, supra; Marsh v.

Hanley, 856 A.2d 138 (Pa.Super. 2004) (liability conceded); Womack v.

Crawley, 877 A.2d 1279 (Pa.Super. 2005). Furthermore, Mr. Cunningham

argues that under Banohashim, supra, the grant of a new trial limited to

damages would have constituted an abuse of discretion. Herein, liability was

intertwined with damages, and “[c]onsequently, a new trial as to damages

would not be ‘fair to both parties.’”      Appellee’s brief at 17.   Regarding

Mrs. Kindermann’s loss of consortium claim, Mr. Cunningham maintains that

the jury was free to accept or reject her testimony regarding the impact of

her husband’s injury on the marital relationship and home.




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J-A09019-14



      “A compromise verdict is one where the jury, in doubt as to

defendant’s negligence or plaintiff’s freedom from contributory negligence,

brings in a verdict for the plaintiff but in a smaller amount than it would

have if these questions had been free from doubt.” Catalano v. Bujak, 642

A.2d 448, 450 (Pa. 1994); see also Davis v. Steigerwalt, 822 A.2d 22, 31

(Pa.Super. 2003).     Such verdicts were especially common prior to the

Commonwealth’s adoption of comparative negligence as the jury often

considered the parties’ respective degrees of negligence “as a practical

matter.”   Karcesky v. Laria, 114 A.2d 150, 154 (Pa. 1955).               “The net

result” was that “in a large majority of negligence cases where the question

of contributory negligence is not free from doubt, the jury brings in a

compromise verdict.” Id. In Guidry v. Johns-Mansville Corp., 547 A.2d

382, 385 (Pa.Super. 1988), this Court, quoting the Supreme Court in Elza v.

Chovan, 152 A.2d 238, 240 (Pa. 1959), reaffirmed that compromise

verdicts “are not only ‘allowed’ but are ‘expected[.]’”       Furthermore, “the

compromise can arise either ‘out of damages or negligence or the balance of

evidence concerning either or both, and the grant of a new trial may be an

injustice to the defendant rather than an act of justice to plaintiff.”

      In Carlson v. Bubash, 639 A.2d 458, 460 (Pa.Super. 1994), we held

that “notwithstanding a finding of comparative negligence, when liability is

contested and conflicting testimony is presented, compromise verdicts are

permissible to establish an amount that the jury determined would justly

compensate a plaintiff for his loss.”       Since Pennsylvania’s comparative

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negligence law permits no recovery where the plaintiff is fifty-one percent or

more causally negligent, and the jury is so instructed, there may be

situations where issues of negligence and contributory negligence are so

debatable that juries resort to a compromise verdict as to damages.

      We agree with the trial court that this is such a case. Mr. Kindermann

does not point to any trial errors that may have affected the jury’s verdict.

We also note that the jury was properly instructed on the consequences of a

finding that Mr. Kindermann was fifty-one or more percent negligent. See

Peair v. Home Ass’n of Enola Legion Number 751, 430 A.2d 665

(Pa.Super. 1998) (holding jury must be informed of the consequence of its

apportionment of negligence). Furthermore, there is no indication that the

allegedly inadequate verdict was “the product of passion, prejudice,

partiality, or corruption.” Davis v. Mullen, 773 A.2d 764, 766 (Pa. 2001).

Rather, the record reveals that the eyewitnesses provided highly conflicting

versions of the events. Expert opinions as to liability were predicated largely

on those inconsistent facts. Whether Mr. Cunningham was negligent in his

operation of the boat or in failing to warn Mr. Kindermann of the impending

wake, and whether Mr. Kindermann was contributorily negligent in his choice

of seat or failure to grasp the handrail, presented difficult issues based on

the conflicting evidence presented. In light of the proof, the jury could have

reached an impasse and returned the low verdict in order to reach an

agreement on the liability question.




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      Compromise verdicts, by definition, reflect the jury’s give and take on

liability issues, resulting in damage awards that do not necessarily resemble

the damages proved.      The damage award in the instant case represented

the classic compromise “where the jury, in doubt as to defendant’s

negligence or plaintiff’s freedom from contributory negligence, brings in a

verdict for plaintiff but in a smaller amount than it would have if these

questions had been free from doubt.” Catalano, supra at 450.

      The trial court concluded that the jury in this case compromised its

verdict, a finding that is amply supported by the record, and we defer to the

trial court’s assessment.   The jury, at an impasse in resolving issues of

Mr. Cunningham’s negligence and Mr. Kindermann’s contributory negligence,

returned an equivocal fifty/fifty general damage        award of $10,000.

Mr. Kindermann could recover, but the lower damage award reflected the

compromised liability.   The conciliation is only more evident because the

verdict was less than the stipulated economic loss. Nor can we assume, as

Mr. Kindermann assumes, that the general damage award did not

encompass damages for pain and suffering.

      On these facts, a new trial limited to damages is unfair. Our Supreme

Court held in Gagliano that “where a substantial conflict exists on the

question of liability, such that a low verdict might indicate that the jury

compromised the liability issue with the amount of damages awarded, it is

an abuse of discretion for the lower court to grant a new trial limited to the

issue of damages. Berkeihiser v. DiBartolomeo, 413 Pa. 158, 196 A.2d

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314 (1964).”    Gagliano, supra at 321.         Where, as here, liability was

contested and testimony was conflicting, the jury’s compromise verdict

should be permitted to stand undisturbed.       See Dawson v. Fowler, 558

A.2d 565 (Pa.Super. 1989).

      We conclude further that the trial court did not abuse its discretion in

denying a new trial on Mrs. Kindermann’s lack of consortium claim.         The

amount awarded for loss of consortium is “left to the sound judgment and

common sense of the jury.”        Nudelman v. Gilbride, 647 A.2d 233, 239

(Pa.Super. 1994).      As the trial court recognized, Mrs. Kindermann’s

derivative   consortium   claim    was   also   susceptible   to   compromise.

Additionally, Mrs. Kindermann’s claim was based entirely on her testimony,

which “the jury was free to accept or reject, in whole or in part.” Trial Court

Opinion, 10/2/13, at 10. Although it was uncontested that Mrs. Kindermann

was experiencing a high-risk pregnancy at the time of her husband’s injury,

and that Mr. Kindermann was unable to help his wife around the house,

Mrs. Kindermann’s mother had moved into the couple’s home prior to the

accident to provide her daughter with household assistance. N.T., 4/30/13,

at 145. In light of this testimony, the trial court did not find the award of

zero damages to be disproportionate to the uncontested evidence, and we

find no abuse of discretion.

      For all of the foregoing reasons, we affirm.

      Judge Jenkins Joins the Opinion.

      Judge Ott files a Dissenting Opinion.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2015




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