J. A12041/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANDRE MURRAY                                 :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                     v.                      :
                                             :
DOMINIC TRIPODI &                            :
JOSEPHINE TRIPODI                            :            No. 98 EDA 2017
                                             :
APPEAL OF: JOSEPHINE TRIPODI                 :


                  Appeal from the Order, November 15, 2016,
             in the Court of Common Pleas of Philadelphia County
                 Civil Division at No. June Term, 2014 No. 0495


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED JULY 16, 2018

      Appellant, Josephine Tripodi, appeals from the November 15, 2016

orders entered by the Court of Common Pleas of Philadelphia County denying

her   post-trial   motion   to   enter   a   compulsory    nonsuit1   and   granting

Andre Murray’s (“appellee”) motion for a new trial on the issue of damages.

After careful review, we affirm.

      The trial court provided the following factual and procedural history:

             The instant appeal, filed by [appellant,] on
             December 9, 2016, stems from two orders issued by

1 A motion for compulsory nonsuit is filed and ruled upon by the trial court
prior to a case’s submission to the jury. Int’l Diamond Importers, Ltd. v.
Singularity Clark, L.P., 40 A.3d 1261, 1274 (Pa.Super. 2012), citing Poleri
v. Salkind, 683 A.2d 649, 653 (Pa.Super. 1996), appeal denied, 698 A.2d
595 (Pa. 1997). Because appellant’s motion was filed post-trial, we shall treat
it as a motion for judgment notwithstanding the verdict (“JNOV”), which is
properly filed as a post-trial motion. See Pa.R.Civ.P. 227.1(a)(2).
J. A12041/18


          [the trial court] on November 15, 2016, through which
          [the trial court] respectively denied [a]ppellant’s
          “Post-Trial Motion to Enter a Compulsory Non-Suit in
          Favor of [Appellant]” (“Post-Trial Motion for
          Compulsory Non-Suit”), and granted [appellee’s]
          “Motion for a New Trial on Issue of Damages” (“Motion
          for New Trial”). . . .

          The relevant facts, set forth in the light most favorable
          to [a]ppellee as the verdict winner, are as follows: On
          February 17, 2014, a storm deposited approximately
          six inches of snow on downtown Philadelphia. Two
          days later, on the evening of February 19, 2014,
          [a]ppellee decided to walk from his house at
          1036 South Carlisle Street in Philadelphia to a nearby
          Chinese restaurant located at Broad and Morris
          Streets, intending to purchase some take-out food for
          himself and his wife, and then return home for a
          relaxing evening in front of the television.[Footnote 1]
          Appellee started his trip by travelling east across
          Carlisle Street, which had already been plowed by that
          point, reaching the sidewalk on the other side and
          then headed south towards Reed Street.                As
          [a]ppellee slowly navigated this sidewalk, he slipped
          and fell at a location abutting the rear of the Tripodi
          Property,[Footnote 2] twisting his right ankle in the
          process, yelling in agony, and feeling a sharp pain in
          the affected ankle which he rated as “10” on a
          10-point scale (i.e. the worst pain he had ever felt);
          according to [a]ppellee, the sidewalk adjacent to the
          Tripodi Property’s west side was still covered in five or
          six inches of snow, concealing a layer of ice
          underneath that [a]ppellee quickly discovered when
          he lost his footing.

                [Footnote 1] According to [a]ppellee, the
                distance between his home and the
                restaurant is only a few city blocks.

                [Footnote 2] The formal mailing address
                of the Tripodi Property is 1322 South
                Broad Street in Philadelphia; however,
                South Carlisle Street and the sidewalk



                                    -2-
J. A12041/18


                where [a]ppellee fell both run along the
                Tripodi Property’s western edge.

          “Shorty,” an individual whom [a]ppellee described as
          being regularly present in the neighborhood,
          witnessed the fall and ran over to the scene to help
          [a]ppellee by grabbing him under his armpits, lifting
          him up from the sidewalk, and then dragging him back
          to [a]ppellee’s house. Shorty and [a]ppellee’s wife
          then carried [a]ppellee inside and placed him in an
          armchair, where [a]ppellee sat and applied ice packs
          to his now-swollen ankle before shifting to a nearby
          couch. Appellee spent the better part of the following
          two days resting on this couch, but the pain in his
          ankle continued to worsen, leading him to conclude on
          February 21, 2014 that he needed professional
          medical care. Appellee then took a cab to Methodist
          Hospital, where x-rays were taken and he was told
          that his ankle was, in fact, broken. Subsequently,
          [a]ppellee was given pain medication and then
          discharged with instructions to see an orthopedist.
          Following this advice, [a]ppellee saw Dr. Marc
          Zimmerman, M.D., on February 27, 2014; by this
          point, [a]ppellee’s ankle swelling had subsided to
          some degree, in contrast to the pain, which [a]ppellee
          stated was as intense as it had been in the immediate
          aftermath of his accident. Dr. Zimmerman wrapped
          [a]ppellee’s ankle in a hard cast, wrote him a
          prescription for Percocet, and told [a]ppellee to keep
          his right leg elevated, as well as to avoid placing any
          weight on it.      In addition, Dr. Zimmerman told
          [a]ppellee to come back at a later date for a follow-up
          assessment, and referred him to a pain management
          clinic. Appellee’s cast was removed in early April
          2014, enabling him to start physical therapy on
          April 10, 2014; [a]ppellee rated his ankle pain at this
          juncture as being “8” on a 10-point scale. He adhered
          to a schedule of, on average, two therapy sessions per
          week over the course of the ensuing two months, after
          which he ceased receiving medical treatment for his
          ankle injury. As of late August 2016, [a]ppellee still
          experienced intermittent “sharp pain that shoots
          through [his ankle] . . . especially when it rain[s] and



                                   -3-
J. A12041/18


          when [he goes] down the subway step[s,]” the
          intensity of which is “4” on a 10-point scale.

          On June 4, 2014, [a]ppellee sued [a]ppellant, as well
          as her husband, Dominic Tripodi, claiming that they
          had negligently failed to remove snow and ice from
          the sidewalk along the Carlisle Street side of the
          Tripodi Property after the February 17, 2014 storm,
          and were thus responsible for causing his
          aforementioned ankle injury. Eventually, the case
          proceeded to a compulsory arbitration hearing on
          January 20, 2016, at which the panel of arbitrators
          determined that [a]ppellant had not acted negligently
          and consequently ruled in her favor.[Footnote 4]
          Appellee appealed this decision on January 22, 2016,
          leading to a one-day jury trial before [the trial court]
          on August 31, 2016, at which [a]ppellee testified
          regarding the circumstances of his aforementioned
          injury, the resultant pain and recovery efforts, and his
          current physical state.         Appellee also called
          Charles Harrington, a neighbor, who said he had
          witnessed [a]ppellee’s fall on the Carlisle Street
          sidewalk adjacent to the Tripodi Property, which
          Mr. Harrington claimed was still covered with snow on
          the date of the incident, despite the passage of
          several days since the most-recent storm. Appellant
          then briefly took the stand to say she had only found
          out about [a]ppellee’s injury when he sued her, and
          was then followed by her son, Joseph Tripodi, who
          maintained that he had shoveled and salted the
          Carlisle Street sidewalk during the afternoon on
          February 19, 2014 (i.e. prior to [a]ppellee’s fall).
          Thereafter, [a]ppellant verbally moved for a
          compulsory non-suit, arguing that [a]ppellee had
          assumed the risk of injury by walking on the
          unshoveled sidewalk, meaning that [a]ppellee could
          not recover damages from [a]ppellant The trial court]
          denied [a]ppellant’s [m]otion, stating “[i]t is for the
          jury to decide whether or not [a]ppellee’s actions were
          reasonable or unreasonable . . . there [are] still
          enough facts [in question] to go to the jury [for] that
          [determination].” Counsel subsequently presented
          their respective closing arguments, and [the trial
          court] then instructed the jury on the law before


                                   -4-
J. A12041/18


          leaving them to their deliberations. The jury quickly
          returned with a verdict in favor of [a]ppellee, finding
          that [a]ppellant had been negligent in failing to
          properly clear her sidewalk of snow and ice and was
          thus liable for [a]ppellee’s injury, awarding [a]ppellee
          $2,729 in damages for medical expenses, but none for
          pain and suffering.

                [Footnote 4] The arbitrators also noted
                that the parties had stipulated to the
                dismissal, with prejudice, of [a]ppellee’s
                claims against Dominic Tripodi.

          Dissatisfied   with    this   outcome,    both    sides
          subsequently     filed   post-trial  motions.        On
          September 7, 2016 [a]ppellee submitted his Motion
          for New Trial, arguing therein that “the jury’s award
          of zero damages bore no reasonable relationship to
          the loss from pain and suffering [he] sustained, and
          was against the weight of the evidence, and utterly
          shocks one’s sense of justice and conscience,”
          meaning that “a new trial limited to the issue of
          damages is warranted.[”]        This was followed on
          September 16, 2016, when [a]ppellant docketed her
          Post-Trial Motion for Compulsory Non-Suit, in which
          she reiterated her assumption of risk argument and
          claimed [the trial court] had erred during trial by
          denying her oral non-suit motion. In response, [the
          trial court] ordered the parties to file supplemental
          briefs addressing the issues raised in their respective
          post-trial motions. After a thorough review of the
          parties’ submissions, case record, and the relevant
          law, [the trial court] docketed two orders on
          November 15, 2016, thereby granting [a]ppellee’s
          Motion for New Trial and denying [a]ppellant’s
          Post-Trial Motion for Compulsory Relief.

          In response, [a]ppellant appealed these rulings to the
          Superior Court on December 9, 2016. Pursuant to
          Pa.R.A.P. 1925(b), [the trial court] issued an order on
          December 12, 2016, directing [a]ppellant “to file of
          record with the Prothonotary[,] and serve upon [the
          trial court] and all parties in interest, a concise and
          itemized Statement of Errors Complained of not


                                   -5-
J. A12041/18


               late[r] than twenty-one (21) days after the entry of
               this Order,” cautioning [a]ppellant in this order that
               noncompliance would “be deemed a waiver of issues.”

Trial court opinion, 3/1/17 at 1-5 (citations to the record and some footnotes

omitted).

         Appellant filed her Rule 1925 statement with the Philadelphia County

Office    of   Judicial   Records   (formerly   Office   of   the   Prothonotary)   on

December 30, 2016; however, the trial court averred that appellant failed to

serve her statement upon the trial court until January 9, 2017, thus waiving

her issues on appeal. (See id. at 5-7.) A previous panel of this court, citing

“court closures and vacations around the New Year’s holiday,” found that

appellant “demonstrated good cause to consider her Rule 1925(b) statement

as timely filed and delivered to the [trial court] on December 30, 2016.”

Murray v. Tripodi, No. 98 EDA 2017, unpublished judgment order at *4

(Pa.Super. filed January 30, 2018). An earlier panel of this court remanded

the case to the trial court so the trial court could file a supplemental

Rule 1925(a) opinion addressing the issues raised on appeal, while retaining

jurisdiction. The trial court filed its supplemental opinion on March 1, 2018.

On February 2, 2018, the panel granted appellant’s petition for continuance

of oral argument, thus relinquishing jurisdiction. As a result, the case was

assigned to this panel.

         Appellant raises the following issues on appeal:

               [1.]   Did the [t]rial [c]ourt err as a matter of law and
                      abuse its discretion in denying [appellant’s]


                                         -6-
J. A12041/18


                   Motion for Compulsory Non-Suit and Post[-]Trial
                   Motion for Compulsory Non-Suit (JNOV), when
                   recovery should have been barred by the legal
                   doctrine of assumption of risk, based upon the
                   evidence presented in [appellee’s] case-in-
                   chief?

            [2.]   Did the [t]rial [c]ourt err as a matter of law in
                   granting [appellee’s] Post-Trial Motion for New
                   Trial on all issues when [a]ppellee waived the
                   right to raise the matter complained of in
                   [appellee’s] Post[-]Trial Motion by failing [to]
                   assert grounds therefor at [t]rial, pursuant to
                   Pa.R.C.P. 227.1(b)(1)?

            3.     Did the [t]rial [c]ourt err as a matter of law and
                   abuse its discretion by disturbing the [j]ury’s
                   verdict on damages by granting [appellee’s]
                   Post-Trial Motion for New Trial on damages
                   only?

Appellant’s brief at 3.2

      In her first issue, appellant avers that the trial court abused its discretion

when it denied her post-trial motion for JNOV. While appeals of denials of

motions for JNOV are interlocutory and generally non-appealable until a

judgment has been ordered and docketed, a denial of a motion for JNOV will

be reviewed on appeal in cases where a new trial is granted. See Buck v.

Scott Township, 472 A.2d 691, 693 (Pa.Super. 1984).




2 The first issue listed in appellant’s brief addressed whether appellant’s appeal
should be quashed due to her alleged failure to timely serve the trial court
with her Rule 1925(b) statement. As noted above, a previous panel of this
court disposed of this issue, and we need not include it with appellant’s other
issues raised on appeal. We have re-numbered appellant’s remaining issues
accordingly. For ease of discussion, we have also re-ordered appellant’s
remaining issues.


                                       -7-
J. A12041/18

     The standard governing motions for JNOV is as follows:

           There are two bases upon which a [JNOV] can be
           entered: one, the movant is entitled to judgment as
           a matter of law, and/or two, the evidence was such
           that no two reasonable minds could disagree that the
           outcome should have been rendered in favor of the
           movant. With the first, a court reviews the record and
           concludes that with all factual inferences decided
           adverse to the movant the law nonetheless requires a
           verdict in his favor, whereas with the second, the
           court reviews the evidentiary record and concludes
           the evidence was such that a verdict for the movant
           was beyond peradventure.

Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa.Super. 2010), appeal denied, 14

A.3d 829 (Pa. 2010), quoting Holt v. Navarro, 932 A.2d 915, 919 (Pa.Super.

2007), appeal denied, 951 A.2d 1164 (Pa. 2008).

     In cases involving JNOV, we have repeatedly cautioned that:

           JNOV, however, may not be employed to invade the
           province of the jury. Thus, when there is a question
           of fact to be resolved, it is within the sole purview of
           the jury. JNOV should not be entered where evidence
           is conflicting upon a material fact. Thus, where the
           jury has been presented with conflicting evidence, a
           motion for JNOV should be denied.

Renninger v. A & R Machine Shop, 163 A.3d 988, 995 (Pa.Super. 2017),

appeal denied, 179 A.3d 7 (Pa. 2018), quoting Rohm & Haas Co. v. Cont’l

Cas. Co., 732 A.2d 1236, 1248 (Pa.Super. 1999), affirmed, 781 A.2d 1172

(Pa. 2001) (emphasis in original).

     Specifically, appellant avers that the legal doctrine of assumption of the

risk bars appellee from recovery and that the trial court “committed an error




                                     -8-
J. A12041/18

of law and abused its discretion by not granting [appellant’s] Motion[s] for a

Compulsory Non-Suit [and JNOV.]” (Appellant’s brief at 17.)

             Assumption of the risk is established as a matter of
             law only where it is beyond question that the plaintiff
             voluntarily and knowingly proceeded in the face of an
             obvious and dangerous condition. Voluntariness is
             established only when the circumstances manifest in
             a willingness to accept the risk. Mere contributory
             negligence does not establish assumption of the risk.
             Rather, a plaintiff has assumed the risk where he has
             gone so far as to abandon his right to complain and
             has absolved the defendant from taking any
             responsibility for the plaintiff’s injuries. In order to
             prevail on assumption of the risk, the defendant must
             establish both the awareness of the risk and the
             voluntariness prong.

             ....

             A trial court should not, therefore, decide the issue as
             one of duty or lack thereof; instead, the issue should
             go to the jury as one of comparative negligence. As
             noted in the comment to the Restatement [(Second)
             of Torts] discussing implied assumption of risk, “Since
             interpretation of conduct is seldom so clearly indicated
             that reasonable men could not differ as to the
             conclusion, it is ordinarily a question for the jury
             whether what the plaintiff has done is a manifestation
             of willingness to accept the risk.”        Restatement
             (Second) of Torts § 496C cmt. h (1965).

Staub v. Toy Factory, Inc., 749 A.2d 522, 529-530 (Pa.Super. 2000)

(en banc).     The Staub court also noted that under such an approach,

“assumption of the risk would no longer be part of the jury’s deliberations or

instructions.” Id. at 527, quoting Howell v. Clyde, 620 A.2d 1107, 1113

(Pa. 1993) (plurality).




                                      -9-
J. A12041/18

      In light of this court’s decision in Staub, we find that the trial court did

not abuse its discretion when it denied appellant’s motion for compulsory

nonsuit. We further find that the trial court did not abuse its discretion when

it sent the case to the jury as a comparative negligence issue. Accordingly,

appellant’s first issue is without merit.

      Appellant next contends that the trial court erred when it granted

appellee’s motion for post-trial relief, averring that appellee waived the issue

by failing to object pursuant to Pennsylvania Rule of Civil Procedure 227.1.

Specifically, appellant argues that appellee should have objected to the jury’s

verdict pursuant to Rule 227.1(b)(1). (See appellant’s brief at 30.) Appellant

further contends that a “ground for new trial or [JNOV] may not be raised for

the first time in the [m]otion for [p]ost-[t]rial [r]elief.” (Id.)

      Rule 227.1(b)(1) states, as follows,

            (b)    Except     as     otherwise      provided   by
                   Pa.R.E. 103(a)[], post-trial relief may not be
                   granted unless the ground therefor,

                   (1)   If then available, were raised in
                         pre-trial proceedings or by motion,
                         objection, point for charge, request
                         for findings of fact or conclusions of
                         law, offer of proof or other
                         appropriate method at trial . . .

Pa.R.Civ.P. 227.1(b)(1).

      Aside from Rule 227, the only other authority to which appellant cites is

our supreme court’s decision in Dilliplaine v. Lehigh Valley Trust Co., 322

A.2d 113 (Pa. 1974). In Dilliplaine, our supreme court held that because the


                                      - 10 -
J. A12041/18

appellant “failed to specifically object to the trial court’s [jury] instruction on

presumption of due care,” the issue was waived on appeal. Id. at 117. As

stated by the trial court,

            Generally, a party waives the right to ask for [a] new
            trial by not objecting to problems with a verdict before
            the jury is dismissed. Picca v. Kriner, [645 A.2d
            868, 872 (Pa.Super. 1994), appeal denied, 651 A.2d
            540 (Pa. 1994)]. However, “the Picca waiver rule is
            only applicable to cases in which a litigant’s failure to
            object to improper or ambiguous jury instructions or
            interrogatories causes an inconsistent verdict. The
            waiver rule should not be applied to cases in which the
            verdict is clear and unambiguous, albeit problematic,
            troublesome or disappointing.” Gorski v. Smith, 812
            A.2d 683[, 707] (Pa.Super. 2002), [appeal denied,
            856 A.2d 834 (Pa. 2004),] quoting King v. Pulaski,
            710 A.2d 1200, 1204 (Pa.Super. 1998).

Supplemental trial court opinion, 3/1/2018 at unnumbered page 4.

      Upon our review of the record, we find that the trial court’s instructions

to the jury were proper and unambiguous. (See notes of testimony, 8/31/16

at 190-218.) We agree with the trial court’s determination that the jury’s

verdict was “clear and unambiguous,” as the jury unanimously found appellant

to be 100% negligent. (Id. at 222-223.) Accordingly, appellee did not waive

the right to request a new trial by failing to object to the verdict before the

jury was dismissed, and appellant’s second issue is without merit.

      Because we found that appellee did not waive his right to request a new

trial limited only to damages, we shall now decide appellant’s third issue. In

her third and final issue on appeal, appellant avers that the trial court abused

its discretion when it granted appellee’s motion for a new trial limited only to


                                      - 11 -
J. A12041/18

damages. In the instant case, the jury returned a verdict awarding appellee

$2,729 in damages for medical expenses; however, the jury did not award

appellee any damages for pain and suffering. (Id. at 221-224.) Appellant

contends that “[c]redibility as to pain and suffering was called into question

during the inconsistent testimony provided by [appellee], which ultimately led

the [j]ury to . . .[,] as it was permitted to do, [] disbelieve [appellee] on the

issue of compensable pain and suffering.”       (Appellant’s brief at 26.)   Put

another way, appellant appears to be arguing that the jury reached a

compromise verdict, and was permitted to do so, by awarding no damages for

pain and suffering. For the foregoing reasons, we do not agree.

      Our cases have stated the following pertaining to compromise verdicts:

            [W]here 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 damages.

Kindermann v. Cunningham, 110 A.3d 191, 195 (Pa.Super. 2015), appeal

denied, 119 A.3d 351 (Pa. 2015), quoting Gagliano v. Ditzler, 263 A.2d

319, 321 (Pa. 1970) (citation omitted). In Carlson v. Bubash, 639 A.2d 458,

460 (Pa.Super. 1994), this court 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.”       Id.,

quoted by Kindermann, 110 A.3d at 194.


                                     - 12 -
J. A12041/18

      While a jury is permitted to reach a compromise verdict, it is not

permitted to reach an inconsistent verdict. In Fischer v. Troiano, 768 A.2d

1126 (Pa.Super. 2001), the plaintiff sustained a compression fracture to the

T-11 vertebra. Id. at 1130. The jury awarded the plaintiff damages totaling

$24,588.73 for medical expenses but did not award any damages for pain and

suffering. Id. at 1128. The jury also found the plaintiff to be 40% negligent.

Id.   The plaintiff filed a post-verdict motion for a new trial limited only to

damages, which the trial court granted. Id. The defendants filed an appeal

to this court.

      On appeal, we restated the following pertaining to pain and suffering

damages:

            Tort victims must be compensated for all that they
            lose and all that they suffer. Where a jury awards a
            plaintiff his medical expenses, they make a finding
            that the expenses were related to the defendant’s
            actions in injuring the plaintiff. However, by not
            awarding any pain and suffering, the jury also makes
            a finding that the plaintiff did not suffer as a result of
            his injuries and subsequent surgery. Such findings
            are inherently inconsistent.

Id. at 1129, quoting Dougherty v. McLaughlin, 637 A.2d 1017, 1019

(Pa.Super. 1994).3 The Fischer court also noted that “a broken bone is the




3The jury in Dougherty awarded the plaintiff the exact amount of his medical
expenses in damages, but failed to award any damages for pain and suffering.
Fischer, 768 A.2d at 1129. The Dougherty jury found the plaintiff to be
44% causally negligent for his injuries. Id.


                                     - 13 -
J. A12041/18

type of injury which human experience teaches us is accompanied by pain.”

Fischer, 768 A.2d at 1130.

      The Fischer court also addressed whether the jury had reached a

compromise verdict. Specifically, the court stated that it was beyond dispute

that the plaintiff suffered a compression fracture of the T-11 vertebra, that

she was hospitalized as a result of her injury, and that her injury required a

three-month healing period. Id. at 1132. The court found that the jury,

            disregarded the trial court’s instruction requiring them
            to compensate [the plaintiff] for her pain and
            suffering, loss of enjoyment of life and humiliation if
            they found [the defendants] liable. Therefore, in
            situations such as this, when a jury awards damages
            for medical expenses, it must also award some
            damages for pain and suffering which would naturally
            accompany the injury.

Id.

      The remedy for this issue is a new trial limited only to damages. Our

more recent cases indicate that for a court to order a new trial limited only to

damages, the following conditions must be met:

            “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, 263 A.2d at 320; Nogowski v.
            Alemo-Hammad, 691 A.2d 950, 958 (Pa.Super.
            1997). 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


                                     - 14 -
J. A12041/18


            made with respect thereto. Gagliano, 263 A.2d at
            320; see also Mirabel v. Morales, 57 A.3d 144, 152
            (Pa.Super. 2012).

Kindermann, 110 A.3d at 193, quoting Banohashim v. R.S. Enters., LLC,

77 A.3d 14, 23 (Pa.Super. 2013). “Our Supreme Court has stated that liability

is not intertwined with damages when the question of damages is readily

separable from the issue of liability.”   Mirabel v. Morales, 57 A.3d 144,

152 n.8 (Pa.Super. 2012), quoting Troncatti v. Smereczniak, 235 A.2d 345,

246 (Pa. 1967).

      Here, we find that the nature of appellee’s injuries and the amount he

is owed to compensate him for his injuries are not related and are readily

separable. See Mirabel, 57 A.3d at 152 n.8. Additionally, the jury fairly

determined the issue of liability when it found appellant 100% liable to

appellee. Accordingly, the issues of liability and damages are not intertwined,

and appellee has met the requisite threshold to be granted a new trial limited

only to damages.

      We must now determine whether the jury returned an inconsistent

verdict when it awarded appellee no damages for pain and suffering. It is

beyond dispute that appellee sustained a fractured right ankle.      (Notes of

testimony, 8/31/16 at 82.) As the Fischer court noted, “a broken bone is the

type of injury which human experience teaches us is accompanied by pain.”

Fischer, 768 A.2d at 1130. Accordingly, we find that the jury returned an

inconsistent verdict by not awarding appellee any damages for pain and



                                    - 15 -
J. A12041/18

suffering, and the trial court did not abuse its discretion when it granted

appellee’s post-trial motion for a new trial limited only to damages.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/16/18




                                    - 16 -
