Smith, B. v. Lujan, O.

J-A19010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BERNARD SMITH AND LACEY SMITH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
OLIVER QUISPE LUJAN, KATHERINE : No. 57 EDA 2020
ORTEGO RAMOS, AND ALEX OLIVER :

Appeal from the Judgment Entered February 3, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 180103270

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY PANELLA, P.J.: Filed: March 5, 2021

Bernard Smith and Lacey Smith appeal from the judgment entered in

favor of Appellees, Oliver Quispe Lujan and Alex Olivier. The Smiths were

passengers in Olivier’s car when it was involved in a collision with a car driven

by Lujan. On appeal, the Smiths argue that the trial court erred in not granting

a judgment notwithstanding the verdict (“jnov”) or a new trial after the jury

found that neither Appellee was negligent. They also contend the trial court

erred in its instructions to the jury. We find both issues waived, and therefore

affirm.

At approximately 3:30 in the morning on July 29, 2017, Olivier picked

up the Smiths in his Uber ride-share vehicle, a Mazda minivan, in New Jersey.

The Smiths entered the back seat of the minivan, and Olivier proceeded to

northbound Interstate-95 (“I-95N”) in order to drive the Smiths to their home
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in Bensalem, Pennsylvania. While on I-95N, at approximately 3:50 in the

morning, the minivan was hit in the rear by a Chevrolet Camaro driven by

Lujan. The minivan spun around and crashed into the median.

The Smiths filed a complaint against both Olivier and Lujan, alleging

that they were both negligent and that their negligence had caused the

collision. The matter proceeded to a jury trial. On the first day of trial, Olivier

testified that when he picked up the Smiths in the early morning hours of July

29, it was raining heavily and still dark out. He testified that he drove to I-

95N and was driving in the middle travel lane at the speed limit. See N.T.,

10/29/19, at 9-10. According to Olivier, he was still in the middle lane when

he was rear-ended “like out of nowhere” by the Camaro driven by Lujan. Id.,

at 20. He stated that he did not see the Camaro at any time before he was hit

by it and did not veer out of the middle lane before being hit by the Camaro.

See id., at 24, 26.

Lujan also testified. He stated that he was also traveling on I-95N in the

early morning on July 29 and that it was raining outside at the time. Lujan

testified that he was driving 50 miles per hour and came up behind Olivier’s

minivan. See id., at 46, 50. According to Lujan, he moved into the right exit

lane to exit at the upcoming exit, but as he did so, Olivier’s minivan also

moved from the middle lane into the exit lane in front of him and cut him off.

See id., at 46, 76. Although Lujan stated that he slowed down and tried to

avoid hitting the minivan, he was unable to do so and hit the rear of the

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minivan with the front passenger side of the Camaro. See id., at 46, 78. Pedro

Carvallo, who was the front passenger in the Camaro, also testified that the

minivan crossed into the exit lane in front of the Camaro. See N.T., 10/30/19,

at 81-82, 86.

Both Bernard and Lacey Smith also testified. Bernard Smith testified

that the minivan he and Lacey Smith were passengers in was rear-ended while

driving on I-95N but that he “really didn’t have any idea what happened. We

got hit by something but didn’t see anything.” N.T., 10/29/19, at 102. Both

he and Lacey Smith testified that they did not see the Camaro prior to the

collision and that they did not have any issues with how Olivier was driving

that night.

At the close of the testimony, and prior to the court’s instructions to the

jury, counsel handed the trial court the jury verdict sheet that had been

agreed upon by all counsel. In relevant part, the verdict sheet read:

Question 1

Were either of the defendants negligent? Please answer for
each defendant:

Oliver Quispe Lujan Yes __ No __

Alex Olivier Yes __ No __

If you answer Question 1 “Yes” as to both defendants, go to
Question 2.

If you answer Question 1 “Yes” as to only one defendant, go
to Question 3.

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If you answer Question 1 “No” as to both defendants, the
Smiths cannot recover and you should not answer any
further questions. Tell the court officer that you have
reached a verdict.

Verdict Sheet (emphasis added). When the trial court asked if all counsel

agreed with the verdict sheet, counsel for the Smiths replied “yes.” N.T. Trial,

11/1/19, at 5.

The court explained the verdict sheet to the jury during its closing

instructions. The court specifically addressed the possibility with the jury that

it could find that both defendants had not been negligent. See id., at 11-12.

Counsel for the Smiths did not object at that time nor did counsel object during

either of the two times that the court specifically asked all counsel if they had

anything to add to the instructions before the jury was excused to deliberate.

See id., at 44-45, 49-50.

After a short deliberation, the jury checked “No” next to the name of

each Appellee in Question 1 and therefore returned a verdict in favor of both

Appellees. When the verdict was read, counsel for the Smiths did not lodge

any objection. See id., at 53-54. Instead, it was only after the verdict was

recorded and the jury dismissed that counsel made a general objection that a

new trial was warranted on the basis that the verdict was against the weight

of the evidence. See id., at 55-57.

The trial court instructed counsel for the Smiths to file a post-trial

motion, which counsel did. In the motion, counsel alleged, inter alia, that the

court should grant a jnov or a new trial on the basis that the verdict was

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against the weight of the evidence because the jury was required by law to

find that at least one of the two Appellees had been negligent. The trial court

denied the motion and the Smiths filed a timely notice of appeal.

In their court-directed 1925(b) statement, the Smiths listed 16 alleged

errors by the trial court. See Concise Statement of Matters Complained of on

Appeal at ¶¶ 18-33. The trial court in its 1925(a) opinion condensed the issues

to two, stating that the Smiths “in summary, appear to complain that the

verdict was against the weight of the evidence and that the Court gave

improper instructions to the jury.” Trial Court Opinion, 2/19/20, at 3. The

court concluded that the verdict had not been against the weight of the

evidence, stating that although there had been some discrepancies in Lujan’s

and Olivier’s accounts of the accident, “there was no evidence presented that

pointed to either driver being necessarily negligent.” Id., at 5. The court also

concluded that the Smiths had waived their claim regarding the jury

instructions but that, even if not waived, the instructions had been proper. In

their brief to this Court, the Smiths raise three issues:

1. Did the trial court abuse its discretion and commit reversible
error by denying appellants’ request for a [jnov], or in the
alternative a new trial, when the jury entered a defense verdict
on negligence, despite the fact that: (1) appellee, Lujan, and
Olivier collided their vehicles; (2) no evidence was put forth at
trial that anything other than the negligence of [Lujan and Olivier]
caused the subject crash; (3) the Smiths were innocent
passengers in Olivier’s vehicle; (4) no evidence was put forth of
negligence of an unnamed third party; and (5) no evidence was
put forth as to any intervening or superseding causes for the
collision?

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2. Did the trial court commit an error of law in failing to grant a
[jnov], or in the alternative a new trial, when the verdict in this
case was so contrary to the evidence so as to truly shock one’s
sense of justice, and bore no reasonable relationship to the
evidence presented at trial [ ] ?

3. Did the trial court commit reversible error by failing to instruct
the jury that it may find comparative negligence on one or both
defendants provided the combined negligence of defendants total
[100] percent?

Appellants’ Brief, at 6-7.

The Smiths contend that their first two issues attack the jury’s verdict

on the grounds that it was against the weight of the evidence. They argue that

the verdict was contrary to the evidence because it was incompatible with a

line of cases holding that “in circumstances where innocent passengers are

injured and there is no evidence exonerating the defendant-drivers, the jury

must find in plaintiffs’ favor as to negligence and award some damages.” Id.,

at 13. Because the jury did not do so here, the Smiths assert that the trial

court was required to grant a jnov or a new trial on the basis that the verdict

was against the weight of the evidence.

Appellees counter that the Smiths, while categorizing their claim as one

that goes to the weight of the evidence, are actually raising a claim that the

jury’s verdict was not permissible because the jury was required to find one

or both of Appellees negligent as a matter of law. Appellees argue that the

Smiths waived any such objection to the verdict because they did not object

to the jury verdict sheet which specifically allowed for the jury to find that

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neither Appellee was negligent, or to the court’s instructions regarding that

portion of the verdict sheet. They also failed to object to the jury’s verdict,

which found that both Appellees were not negligent, before the jury was

dismissed. Instead, the Smiths did not raise their claim challenging the verdict

until their post-trial motion, which Appellees contend did not preserve it for

appellate review. We agree.1

Under Rule 227.1(b) of the Rules of Civil Procedure, post-trial relief

cannot be granted if the basis for the post-trial motion related to a verdict

arose during the trial proceedings and the party did not raise a

contemporaneous objection. See Stapas v. Giant Eagle, Inc. 198 A.3d

1033, 1041 (Pa. 2018); Pa.R.C.P. 227.1(b). 2 Requiring such a

contemporaneous objection promotes judicial efficiency by providing the trial

court with the opportunity to correct any trial errors that have been made.

See Stapas, 198 A.3d at 1037.

Notwithstanding Rule 227.1(b), our Supreme Court has held that a claim

which challenges a verdict on the grounds that it was against the weight of

____________________________________________

1 Although the trial court did not base its denial of the Smiths’ post-trial
motion on waiver, this Court may affirm a trial court’s decision if there is any
proper basis for the result reached even if it is different from the one relied
upon by the trial court. See In re Estate of Rood, 121 A.3d 1104, 1105 n.
1 (Pa. Super. 2015).
2Rule 227.1(b) provides that “post-trial relief may not be granted unless the
grounds therefor … 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.C.P. 227.1(b).

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the evidence does not have to be raised at trial and before the jury is

discharged in order to preserve the claim. See id., at 1038 (citing Criswell

v. King, 834 A.2d 505, 506 (Pa. 2003)). Rather, a weight of the evidence

claim can be raised for the first time in a post-trial motion. See id. The

reasoning behind this is that a weight of the evidence claim only “ripens after

the verdict because it does not challenge the jury’s ability to render a verdict;

instead it contends the jury’s resolution of competing evidence was a

‘miscarriage of justice’.” Id., at 1042 (emphasis added). Because a court

cannot ask the jury to weigh the evidence differently, only the trial court can

resolve a weight challenge. See id., at 1038. Therefore, a party raising a

weight claim is not required to object before the jury is discharged to preserve

the issue because the jury cannot resolve the claim. See id.

In Stapas, our Supreme Court considered the issue of whether a claim

raised for the first time in a post-trial motion had properly been preserved

where the claim was framed as a weight of the evidence claim, but actually

challenged the jury’s ability to render the verdict as a matter of law. The Court,

in effect, adopted the general rule that if the objection to a verdict is that the

“verdict is the product of trial error, or involves a discrete, correctable event

at trial, or involves the capacity of the jury to return the verdict at all, the

objection must be lodged before the jury is discharged.” Id., at 1039.

The jury in Stapas returned a verdict for the plaintiff which included

damages for future wage losses even though no evidence had been presented

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to support such an award. The defendant did not object to the jury instructions

or verdict form, nor did it object to the verdict before the jury was dismissed.

Instead, it argued for the first time in its post-trial motion that the verdict had

been against the weight of the evidence.

In finding this issue waived, the Stapas Court concluded that, although

the defendant had labeled its challenge to the verdict as a weight claim, the

defendant’s position was actually that the jury did not have the ability to award

damages for future wage losses as a matter of law because there was no

evidence to support that award. The Court observed that the plaintiff had not

presented any evidence on future lost wages, “and that issue was not ripe for

the jury’s consideration.” Id., at 1042. The Court held that because the

defendant’s challenge went to the jury’s capacity to reach the verdict that it

did under the evidence before it, the challenge was not premised on the

improper weighing of competing evidence but on “trial errors, correctable

before the jury [was] discharged.” Id., at 1034. As such, the defendant could

not raise its objection to the verdict for the first time in a post-trial motion.

Rather, it had to preserve the issue at trial by objecting to the jury

instructions, verdict form or the verdict itself before the jury was dismissed.

See id., at 1042.

We agree with Appellees that the Smiths’ objection to the verdict is

waived under Stapas. While the Smiths insist that their objection to the

verdict in their post-trial motion has been properly preserved because it goes

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to the weight of the evidence, the Smiths’ argument is not that the jury

improperly weighed competing evidence. Rather, the Smiths are claiming that

they are entitled to a jnov or a new trial because the jury was not permitted

as a matter of law to find that neither Appellee was negligent when there was

no evidence that anything other than negligence on the part of one or both

Appellees caused the collision. To that end, the Smiths argue:

In the instant matter, the evidence presented was such that no
possibility existed for both Lujan and Olivier to be exonerated.
There simply was no exculpatory evidence, other than both drivers
blaming each other, to explain how the collision could have
occurred absent negligence on the part of at least one of the
drivers.

***

There was no testimony or suggestion that some intervening
cause(s); external exculpatory circumstances, such as an act of
God or mechanical failure; or an extraordinary event of nature
caused the subject collision.

***

There was never a suggestion throughout the trial that the
plaintiffs were in any way contributorily negligent.

***

Absent some other explanation, one or a combination of both
defendant-drivers had to be negligent, and the only question for
the jury was which one or what percentage is attributable to each
defendant-driver.

Appellants’ Brief, at 17, 41-42, 46; see id., at 48 (stating that under the

above circumstances, the jury was “duty-bound” to enter a verdict against

one or both of Appellees and in favor of the Smiths).

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As these excerpts make clear, the Smiths are challenging the jury’s

ability to return a verdict that neither defendant was negligent and not its

resolution of competing evidence. The Smiths were therefore required to

object to the verdict sheet or the jury charge permitting the jury to find both

Appellees not negligent or to the verdict before the jury was discharged. See

Stapas, 198 A.3d at 1042. The Smiths, however, failed to do so.

Had the Smiths lodged a timely objection, the trial court could have

addressed the issue of whether the law precluded the jury from finding that

neither Appellee was negligent, as the Smiths now allege. The court could

have then made any corrections or changes it deemed appropriate before the

jury was discharged. Because the Smiths did not raise any timely objection

that the jury lacked the authority to return a verdict that neither Appellee was

negligent, we agree with Appellees that the claim is waived. See id.

In their third issue, the Smiths claim that the trial court erred by failing

to “properly instruct the jury as to apportionment of comparative negligence

between multiple defendants.” Appellants’ Brief, at 49. However, as the trial

court found, the Smiths waived this issue by failing to object to the trial court’s

instructions regarding comparative negligence at trial. This Court has made

clear that “where a party fails to specifically object to a trial court’s jury

instruction, the objection is waived and cannot subsequently be raised on

appeal.” Bezerra v. Nat’l R. R. Passenger Corp., 760 A.2d 56, 64 (Pa.

Super. 2000) (citation omitted).

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Even if not waived, we agree with the trial court and Appellees that any

error on the part of the trial court would be, at most, harmless. Because the

jury determined that neither Appellee was negligent, it had no reason to

apportion fault between Appellees. As such, the Smiths have also failed to

show that they were prejudiced by the court’s instruction relating to the

apportionment of comparative negligence. See Grove v. Port Auth. of

Allegheny Cty., 218 A.3d 877, 889 (Pa. 2019) (holding that the trial court’s

failure to issue a negligence per se charge was harmless error when the jury

found the plaintiff was negligent absent the requested charge); Bennett v.

AT Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 150 (Pa.

Super. 2012) (stating that this Court will not reverse an order denying a new

trial unless the trial court committed an error that controlled the outcome of

the case). No relief is due.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/21

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