J-A27022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONNA ZIELKE AND JOSEPH ZIELKE                      IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

                       v.

JAMES MULLEN, III, AND LINDA MULLEN

APPEAL OF: DONNA ZIELKE
                                                         No. 3174 EDA 2015


                   Appeal from the Order September 3, 2015
               In the Court of Common Pleas of Delaware County
                       Civil Division at No(s): 11-006646


BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 21, 2016

        Donna Zielke appeals from the order, entered in the Court of Common

Pleas of Delaware County, denying her post-trial motion seeking a new trial

or, in the alternative, additur. After our review, we reverse and remand for

a new trial limited to non-economic damages.

        The trial court set forth the factual history as follows:

        On September 9, 2009, Appellant/Plaintiff, Donna Zielke, and
        her husband, Joseph Zielke, were at the home of
        Appellees/Defendants, James and Linda Mullen [“the Mullens”],
        attending the wedding ceremony and reception for Donna
        Zielke’s stepdaughter. The home[,] located at 308 West Rose
        Tree Road in Media, Delaware County, Pennsylvania, is a single
        family, split-level residence. While descending to the lower level
        of the home, Donna Zielke (hereinafter “Zielke”) lost her balance
        on the second step of five steps and fell down to the lower level.
        Zielke sought treatment for her injuries, principally her left foot,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A27022-16


       but also claims injuries to her head, neck, spine, wrists, and
       elbows. Zielke was already suffering from several pre-existing
       injuries and medical conditions at the time of [the] 2009
       incident. In 1998, she sustained a herniated disc and required a
       spinal fusion. . . . Zielke also suffers from carpel tunnel
       syndrome and underwent surgery to treat this condition. Zielke
       confirmed for the jury that the Social Security Administration has
       found her disabled as a result of the bilateral carpel tunnel
       syndrome, the neck fusion, and the low back herniation.

Trial Court Opinion, 12/21/15, at 2-3.1

       At trial, the evidence established that the Mullens, while preparing to

host a wedding reception, had removed a handrail in order to paint.            The

stairway, which led down to the family room, consisted of five steps. The

Mullens planned to hold the wedding reception for approximately thirty

guests in the downstairs family room.            James Mullen testified that he had

neglected to put the handrail back up before the reception. N.T. Jury Trial,

7/27/15, at 99-100.

       Zielke testified that on September 9, 2009, the day of the wedding,

she descended the stairway to the family room; on the second step, she

started to lose her balance and reached out to grab the handrail for support.

Having no handrail to grab for support, Zielke fell on her back, hitting her

head on each step, and slid down the steps. Id. at 117.2
____________________________________________


1
 We note that the trial court’s opinion is incorrectly time-stamped “2005
Dec 21.”
2
  The court admitted the expert report of engineer Daniel Honig, on behalf of
Zielke, following his site report of the subject stairway at the Mullen
residence. The report provides, in relevant part:
(Footnote Continued Next Page)


                                           -2-
J-A27022-16



      As a result of the fall, Zielke fractured a bone in her left foot in several

places.   The injury required surgery and removal of the bone.               After

removal of her recuperative “boot,” which she wore for a total of “seven or

eight months[,]” Zielke suffered recurrent blistering caused by pressure on

the bone next to the one that had been removed.          Id. at 121-33. Zielke

                       _______________________
(Footnote Continued)


      In addition to the unusually steep configuration of this residential
      stairwell, my site inspection and review of the photographs
      confirmed that the dimensioning of the uppermost tread and
      riser elements varied significantly from the similar elements
      throughout the remainder of the stair. Most importantly, these
      dimensional discrepancies were located at the top portion of the
      stair, which would be the initial access area upon descent. Given
      that the height of the top riser was less than the remainder and
      the uppermost read was deeper than the remainder, a person
      accessing the stair from the top would initially be provided with a
      false sense of security. This is consistent with the description
      and mechanics of Ms. Zielke’s fall as described in her deposition
      testimony. Accordingly, according to Ms. Zielke, the initial step
      down from the top 8 and ½” riser onto the 10” tread with her
      right foot, as Ms. Zielke attempted to step down to the next
      tread with her left foot, the increased 9” height and the reduced
      9” riser depth of the tread did not allow her to place this foot
      fully on the tread due to the significant step down and the
      position of her foot only halfway on the tread. Ms. Zielke’s foot
      easily slipped off the nosing of the carpeted tread, thereby
      causing her to fall. All of the tread and riser elements have been
      constructed prior to Mr. and Mrs. Mullen’s purchase of the home,
      the finished detailing of the stairway was altered by the
      installation of new carpeting shortly prior to the incident. More
      importantly, the existing original handrail had been removed,
      but was not properly reinstalled prior to Ms. Zielke’s fall as
      described in detail.

N.T. Jury Trial, 7/28/15, at 51-53.




                                            -3-
J-A27022-16



testified that after the accident, she was working from 3:00 pm to 9:00 pm

two or three days a week as she had found a part-time job that did not

require either continual standing or continual sitting. However, post-surgery

she had missed 160 hours of work because she was required to be on

bedrest for 60-90 days. Id. at 127-133.3

       Following a three-day trial, the jury returned a verdict in favor of

Zielke. The jury found the Mullens were negligent and that their negligence

was a factual cause of Zielke’s injuries. The jury awarded Zielke $13,138.34

in damages for past and future medical expenses4 and lost earnings; the

____________________________________________


3
  Zielke testified that in 1998, while working as a nurse, she suffered
herniated discs in her neck and low back when, as she attempted to lift a
patient into bed, the patient kicked back. Her injuries required a spinal
fusion. N.T. Trial, 7/27/15, at 110. Zielke was on disability, but accepted a
part-time job as a receptionist at a tennis club, which was to start two days
after her fall at the Mullens’ home.
4
  Frank Adamo, D.P.M., who performed Zielke’s surgery and treated her
from 2009 to 2013, diagnosed Zielke with metatarsalgia of the left great toe
joint with tibial sesamoiditis. His report, read into the record at trial,
provided, in part:

         The tibial sesamoid bone remains a pressure point after
       surgical resection of fibular sesamoid. The cause of her chronic
       impairment is directly related to the injury that she sustained. I
       can say with a reasonable degree of medical certainty that her
       injury has caused permanent impairment due to transfer
       metatarsalgia to the tibial sesamoid and the prognosis is only
       fair at best. . . . Future medical expenses could be upwards of
       $25,000 of medical coverage if patient needed to undergo a
       tibial sesmoidectomy or any other procedure of the great toe
       joint.
(Footnote Continued Next Page)


                                           -4-
J-A27022-16



jury awarded zero damages for non-economic loss (pain and suffering,

embarrassment/humiliation, loss of life’s pleasures, and disfigurement).

      Zielke filed a motion for post-trial relief in the form of additur or, in the

alternative, a new trial limited to the issue of non-economic loss. The trial

court denied Zielke’s motion. This appeal followed.

      Zielke raises three issues for our review:

          1. Whether a jury’s verdict awarding zero damages for non-
             economic loss is against the clear weight of the evidence
             where the jury found that [Zielke] endured significant
             injuries due to [the Mullens’] negligence; there was
             uncontroverted evidence that [Zielke’s] injuries were “of
             the type that naturally and normally cause pain and
             suffering” and did in fact cause [Zielke] to suffer such non-
             economic damages, “and, accordingly, the jury was not
             free to disregard them[.]”

          2. Whether the trial judge erred as a matter of law in denying
             [Zielke’s] motion for post trial relief because the trial court
             had no reasonable basis to believe that either (1) the jury
             did not believe [Zielke] suffered any pain and suffering, or
             (2) that a preexisting condition or injury was the sole
             cause of the alleged pain and suffering[.]

          3. Whether the trial judge erred as a matter of law in denying
             [Zielke’s] motion for post-trial relief by failing to grant
             judicial additur or a new trial limited to the issue of non-
             economic loss damages, where the jury’s verdict was

                       _______________________
(Footnote Continued)

N.T. Jury Trial, 7/28/15, at 56-59. We note that the Mullens’ medical expert
did not dispute the nature or extent of Zielke’s injuries, but instead opined
that they were just as likely caused by Zielke’s husband stepping on her foot
after she landed from her fall, as by her fall down the steps. See N.T.
7/28/15, at 99. In light of the jury’s verdict slip specifically finding the
Mullens were negligent and their negligence was a factual cause of Zielke’s
injuries, we find this inconsequential. See Verdict Slip, 7/29/15, at 1-2.



                                            -5-
J-A27022-16


              clearly inadequate    and   against   the   weight   of   the
              evidence[.]

Appellant’s Brief, at 4.

        The decision to grant a new trial lies within the discretion of the trial

court. Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998). We will not reverse

a trial court’s decision absent an abuse of discretion, Davis v. Mullen, 773

A.2d 764, 766 (Pa. 2001), or an error of law. Yacoub v. Lehigh Valley

Medical Associates, 805 A.2d 579, 586 (Pa. Super. 2002) (en banc);

Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002). An abuse of

discretion occurs “when the trial court has rendered a judgment that is

manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,

or was motivated by partiality, prejudice, bias or ill will.” Harman ex rel.

Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000) (citing Coker v. S.M.

Flickinger Company, Inc., 625 A.2d 1181, 1185 (Pa. 1993)).

        A new trial for damages should be awarded “where it clearly appears

from the uncontradicted evidence that the amount of the verdict bears no

reasonable relation to the loss suffered by the plaintiff[.]” Kiser v. Schulte,

648 A.2d 1, 3-4 (Pa. 1994). See Neison v. Hines, 653 A.2d 634, 636 (Pa.

1995); Zeigler v. Detweiler, 835 A.2d 764, 767 (Pa. Super. 2003);

Lombardo v. DeLeon, 828 A.2d 372, 374 (Pa. Super. 2003).                  “If the

verdict bears a reasonable resemblance to the proven damages, it is not the

function of the court to substitute its judgment for the jury’s.” Kiser, supra

at 4.    However, “where the injustice of the verdict `stands forth like a



                                       -6-
J-A27022-16



beacon,’ a court should not hesitate to find it inadequate and order a new

trial.” Id.   Thus,

      a jury verdict is set aside for inadequacy when it appears to
      have been the product of passion, prejudice, partiality, or
      corruption, or where it clearly appears from uncontradicted
      evidence that the amount of the verdict bears no reasonable
      relation to the loss suffered by the plaintiff [and] is so contrary
      to the evidence as to “shock one’s sense of justice.”

Davis, 773 A.2d at 767, citing Kiser 648 A.2d at 4.

      In Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001) (en banc), this

Court acknowledged that not all injuries are serious enough to merit

compensation, holding that under the facts of that case it was not reversible

error to award plaintiff zero damages for pain and suffering. There, the

plaintiff claimed that she had suffered a herniated disc in a minor car

accident, causing ongoing pain and suffering, and requiring surgery. Though

experts on both sides conceded that plaintiff suffered some injury, the jury

found in favor of the defendant, whose expert opined that plaintiff’s

herniated disc was not caused by the accident, and that the injury plaintiff

did suffer in the accident was a mere “cervical strain.” Id. at 720.

      The Majczyk Court held that the jury may find for the defendant

despite obvious negligence when it does not believe the plaintiff's pain and

suffering, or that the plaintiff’s injury is the sort that is compensable.

Quoting Boggavarapu v. Ponist, 542 A.2d 516, 518 (Pa. 1988), we stated

that some injuries are the sort of “transient rub of life for which

compensation is not warranted,”     Majczyk, supra at 726, and that “the

                                     -7-
J-A27022-16



determination of what is a compensable injury is uniquely within the purview

of the jury.” Id.   We concluded that, based on the 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, supra (holding “a jury's award of medical expenses

without compensation for pain and suffering should not be disturbed where

the trial court had a reasonable basis to believe that: (1) the jury did not

believe the plaintiff suffered any pain and suffering, or (2) that a preexisting

condition or injury was the sole cause of the alleged pain and suffering.”).

      However, unlike Majczyk, where a minor rear end collision resulted in

an injury that was not significant, the instant case involved a serious injury

that required surgery, removal of a bone, scarring, months of bed rest,

chronic blistering and continuing pain. The evidence is undisputed that due

to the Mullens’ negligence, Zielke fell and suffered serious injury, required

surgery, and will likely require future surgeries.

      We find this case more akin to Burnhauser v. Bumberger, 745 A.2d

1256 (Pa. Super. 2000).      In Burnhauser, this Court concluded that the

jury’s award of zero dollars for pain and suffering bore no reasonable

relationship to the loss suffered in a head-on collision, soft tissue injuries,

and pain that lasted for 6 months.        Here, like in Burnhauser, Zielke’s

injuries were of the type that objectively cause compensable pain, and,

unlike in Majczyk, were not a mere “transient rub of life.” Boggavarapu,

supra at 518. Like in Burnhauser, the instant case involved more than a

                                      -8-
J-A27022-16



minor accident and injury. In Burnhauser, the jury’s damages award

matched exactly the amount of plaintiff’s unreimbursed medical expenses.

Here, the damages award matched Zielke’s medical expenses ($9,378.34)

and past lost earnings ($1,760.00), plus a $2,000 allowance for future

medical    expenses.    Unlike   the   plaintiff   in   Majczyk,   Zielke   suffered

compensable injury; thus, we find Burnhauser controls.

        Our Supreme Court has stated:

        [T]here are injuries to which human experience teaches there is
        accompanying pain. Those injuries are obvious in the most
        ordinary sense: the broken bone, the stretched muscle, twist of
        the skeletal system, injury to a nerve, organ or their function,
        and all the consequences of any injury traceable by medical
        science and common experience as sources of pain and
        suffering. Pain, of varying degree, may indeed follow small injury
        and be greater in its consequence than the initial blow. It may
        aggravate existing defects of the person, exploding latent
        diseases or precipitate, into present pain, what otherwise might
        have passed or been long delayed, absent the immediate injury.

Boggavarapu, 542 A.2d at 518.           After our review of the record, we agree

with Zielke’s argument that the uncontroverted evidence established that

her injuries were “of the type that naturally and normally cause pain and

suffering[,]” Neison, 653 A.2d at 639, and did in fact cause her to suffer

non-economic damages.        Accordingly, the jury was not free to disregard

them.     Because the jury’s verdict clearly indicated an award only for past

and future medical expenses and lost earnings, and because Zielke had

suffered compensable injury, the jury's failure to make an award for pain

and suffering bore no reasonable relationship to the loss suffered.             See


                                       -9-
J-A27022-16



Marsh v. Hanley, 856 A.2d 138 (Pa. Super. 2004); Burnhauser, supra.

We therefore reverse the trial court's order denying a new trial on damages.

     Order denying post-trial motions reversed.         Matter remanded for a

new trial on damages only. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




                                   - 10 -
