Gorman v. Costello

*1214DISSENTING OPINION BY

KELLY, J.:

¶ 1 I respectfully dissent. I agree that the trial court perhaps read the italicized caveat, pertaining to SSJI 3.00, too literally, particularly in light of the SSJI Chairman’s response to Appellant’s inquiry.8 However, it is well-settled that an allegedly faulty instruction does not merit a new trial unless the jury was misled or there was an omission amounting to a fundamental error. Lockhart v. List, 542 Pa. 141, 665 A.2d 1176, 1179 (1995). “In reviewing a trial court’s charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety.” Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 635 (Pa.Super.1998). We should be especially cautious about awarding a new trial based on departure from the SSJI, as the suggested instructions are for guidance and reference purposes only. See Carpinet v. Mitchell, 853 A.2d 366, 374 (Pa.Super.2004), appeal denied, 586 Pa. 706, 889 A.2d 1212 (2005).

¶ 2 Instantly, the only factual cause dispute is whether Appellant’s injuries were caused or exacerbated by the accident in any way, or whether they were solely the result of her pre-existing injuries. In fact, the crux of Appellant’s argument is: “It was [Appellee’s] position that [Appellant’s] ongoing pain was caused by this pre-exist-ing condition. It is possible to recover for negligence if there are other factors producing [Appellant’s] pain. This is the core and basic concept of ‘factual causation.’ ” (Appellant’s Brief at 8). However, the trial court explicitly instructed the jury on this issue:

Damages should be awarded for all injuries caused by the accident even if the injuries caused by the accident were more severe than could have been foreseen because of [Appellant’s] prior physical condition or a preexisting medical condition was aggravated by the accident. If you find that [Appellant] did have a preexisting condition that was aggravated by [Appellee’s] negligence, [Appellee] is responsible for any aggravation caused by the accident.

(N.T., 5/31/06, at 152-53) (emphases added). Based on the jury instructions as a whole, I cannot agree that the jury was misled in any way to believe that Appellant’s pre-existing injuries precluded them from finding that Appellee’s negligence was nonetheless a factual- cause of Appellant’s injuries. See Jeter, supra (noting appellate court must examine jury instructions as whole). Accordingly, I would not remand for a new trial based on the jury instructions.9

. I add that the Chairman also indicated that this caveat would be addressed in future editions. (See Letter from Lee C. Swartz, Esq. to Robert C. Ewing, Esq., dated June 27, 2006).

. I offer no opinion as to Appellant's weight of the evidence claim,