Moffitt, C. v. Miller, C.

J-A19043-23

2023 PA Super 168

COLLEEN MOFFITT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHRIS MILLER : No. 8 EDA 2023

Appeal from the Judgment Entered December 15, 2022
In the Court of Common Pleas of Chester County Civil Division at No(s):
2019-02299-TT

BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED SEPTEMBER 18, 2023

Colleen Moffitt (Moffitt) appeals from the judgment entered in the Court

of Common Pleas of Chester County (trial court) following a jury trial in this

personal injury action filed against Chris Miller (Miller) arising from a motor

vehicle accident. Moffitt challenges the trial court’s evidentiary rulings

including its allowance of testimony regarding her alcohol consumption before

the accident, the court’s decision not to issue several proposed jury

instructions, as well as contending that the jury’s verdict is against the weight

of the evidence. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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I.

A.

The relevant facts and procedural history of this case are as follows. On

August 5, 2018, at 1:15 a.m., Miller’s vehicle struck Moffitt as she attempted

to cross East Lancaster Avenue (Route 30) in Downington on foot in the middle

of the block as she walked home from a nearby bar. On March 4, 2019, Moffitt

filed a complaint asserting one count of negligence seeking to recover

damages for injuries and lost wages she allegedly sustained as a result of the

accident.

Emergency room records showed that Moffitt’s blood alcohol content

(BAC) was .313% at the time of the incident. Prior to trial, motions in in limine

were filed by both parties. The trial court denied Moffitt’s motion to exclude

all references to her alcohol consumption but granted Miller’s motion in limine

to preclude testimony from Moffitt’s liability expert concerning the presence

of “unmarked crosswalks” at the location of the accident.

B.

The case proceeded to a three-day trial on May 31, 2022, and the jury

heard testimony from several witnesses including Moffitt; Miller; the police

officer who responded to the scene, Officer Geoffrey Burkhart; Roy

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Pietrinferni, the bartender from the tavern; and Miller’s expert witness,

Charles Dackis, M.D.1

Moffitt testified that at the time of the incident she resided with her two

adult daughters and was working at a diner as a waitress earning about

$16,000 per year. During the day leading up to the accident, Moffitt attended

an afternoon wedding where she drank two to three beers, returned to her

apartment, drank two shots of vodka with her daughter and later went to a

bar located across the street and down one block from her apartment. Moffitt

went to the bar dressed in the same clothes that she wore to the wedding and

was scheduled to work the next morning at 7:00 a.m. Moffitt recounted that

she drank one-and-a-half beers at the bar, was feeling “normal” when she left

and did not have any problems walking or talking. (N.T. Trial, 5/31/22, at

67).

Moffit explained that she chose to cross Lancaster Avenue (Route 30) at

the location she thought was the most well-lit area which was in the vicinity

where Lancaster Avenue (Route 30) was intersected by Beech Street, a one-

way street. However, Beech Street is the entrance to the Beech Street parking

lot at Lancaster Avenue. No vehicles can enter Lancaster Avenue from Beech

Street; they can only enter the parking lot from Lancaster Avenue and exit

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1 The witnesses testified in person and by deposition/pre-recorded trial
testimony.

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the parking lot onto Wood Alley. Lancaster Avenue has no stop sign or other

traffic control device in Miller’s direction of travel.

Moffitt stated that before she stepped off the curb, she looked to the left

and to the right for oncoming traffic and that she did not see any vehicles

approaching from either direction. As Moffitt crossed the street, she was

struck by Miller’s car and landed on the road. Emergency personnel responded

to the scene and she was taken to the hospital.

Moffitt went on to testify that she sustained a fracture to her right leg

necessitating surgery and cuts and bruises around her head. She stayed at

her sister’s home for about a week to recover and used a walker for a month.

Moffitt attended follow up appointments with her physician as well as physical

therapy treatment. Although she still experienced some pain, she stated she

was working full-time as of her last doctor’s appointment in November of

2018. Regarding her eyesight, Moffitt testified that she is blind in her right

eye but is able to see through her left eye wearing glasses. Moffitt indicated

that although she had vision issues before the collision, her ophthalmologist

advised that her retina “totally shifted” after it and performed surgery. (Id.

at 78). Moffitt averred that she was out of work for approximately two months

and estimated her initial wage loss at $3,500.

Miller testified that as he was operating his motor vehicle eastbound on

Route 30 on the night of the accident, he saw Moffitt on the sidewalk starting

to cross the street. Miller did not slow down and continued to proceed forward

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because he was unsure of what Moffitt was going to do. (See id. at 56-58).

Miller explained that although he initially observed Moffitt on the sidewalk, he

lost sight of her “because she disappeared . . . that’s how fast it happened.”

(Id. at 58). The next time that he saw her, she was walking on the double

yellow line.

Officer Burkhart testified that upon his arrival at the scene he noticed a

strong odor of alcohol emanating from Moffitt’s person and breath. She

appeared very agitated and angry and “was yelling but not due to pain.” (N.T.

Trial, 6/02/22, at 5). Moffitt was cursing and directed negative comments

towards him and the ambulance crew as they were trying to help her. Officer

Burkhart recounted that Moffitt “crossed the road in a dark area and appeared

to be extremely intoxicated when we arrived.” (Id. at 8). He testified that

there is no crosswalk where Moffitt walked across the street and the closest

crosswalk is located about half a block away from where the accident occurred.

Officer Burkhart’s understanding is that the accident was caused “because

[Moffitt] was intoxicated and walking in front of a car.” (Id. at 11).

Roy Pietrinferni indicated that Moffitt drank one beer at the bar and

purchased a six pack of beer to go. (See N.T. Deposition, 4/18/22, at 11).

Pietrinferni testified that Moffitt exhibited no visible signs of intoxication and

described her condition as “fine.” (Id. at 12).

Dr. Dackis testified during voir dire that has been a psychiatrist for 40

years with a subspecialty in addiction, including alcohol and its effects. On

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cross-examination during voir dire, Dr. Dackis indicated that he does not have

a degree in toxicology and that he has not spoken at any conferences on that

subject, although he has taught courses in pharmacology. Dr. Dackis

explained that his expertise lies in assessing the impact of a person’s blood

alcohol level on their intoxication and impairment. (See N.T. Deposition,

2/28/22, at 16). The trial court allowed the jury to hear his testimony over

objection by counsel for Moffitt.

Dr. Dackis testified that he reviewed Moffitt’s hospital records which

showed that her BAC was .313%, which is “a very, very elevated level,

considering the fact that .08% is the legal level for drinking [while driving.]

She was not acting normal. Her judgment was impaired. She was paranoid

and she got into this accident.” (Id. at 38-39). Dr. Dackis opined that Moffitt

was intoxicated to a point that impaired her ability to safely walk home and

that her impairment contributed to the accident.

C.

On June 2, 2022, the jury issued its verdict finding each party 50 percent

causally negligent and awarding Moffitt a lump sum of $8,500 in damages.

Moffitt filed a motion for post-trial relief which the trial court denied on

November 22, 2022, after consideration of the parties’ briefs and oral

argument. In its opinion, the trial court stated its findings that it properly

denied Moffitt’s motion in limine to preclude evidence of her alcohol use on

the day of the accident; Moffitt’s challenge to Dr. Dackis’ testimony is

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meritless, as he was qualified to testify about her blood alcohol level and the

effects of those levels on a person’s behavior and conduct; it properly granted

Miller’s motion in limine to preclude testimony pertaining to “unmarked

crosswalks”; the court’s jury instructions were adequate and appropriate to

the legal issues raised by the parties and it properly declined to give Moffitt’s

proposed non-standard charges; and the jury’s decision to award damages

totaling $8,500 is not against the weight of the evidence and was reasonable

given the totality of the circumstances and all of the facts presented at trial.

(See Trial Court Opinion, 11/22/22, at 2-3, 5-7).

Judgment was entered on the verdict on December 15, 2022. Moffitt

timely appealed and she and the trial court complied with Rule 1925. See

Pa.R.A.P. 1925(a)-(b).

II.

A.

Moffitt first contends the trial court erred by admitting evidence of her

alcohol consumption before the accident.2 Moffitt maintains that Pennsylvania

courts have consistently precluded the mention of alcohol use absent evidence

of unfitness to function at the time of an accident because such testimony is

extremely prejudicial.

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2 In reviewing challenges to a trial court’s decisions on motions in limine we

apply an abuse of discretion standard of review. See Coughlin, infra at 403.

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It is well-settled that a blood alcohol level alone may not be admitted

for the purpose of proving intoxication. There must be other evidence showing

the actor’s conduct which suggests intoxication establishing an impairment

function. See, e.g., Billow v. Farmers Trust Co., 266 A.2d 92, 93 (Pa.

1970); Fisher v. Dye, 125 A.2d 472 (Pa. 1956). In this case, the trial court

applied Coughlin v. Massaquoi, 170 A.3d 399 (Pa. 2017), our Supreme

Court’s most recent pronouncement on the issue.

Coughlin involved a personal injury action against a motorist who killed

a pedestrian while he crossed the street and our Supreme Court considered

the admissibility of evidence concerning the pedestrian’s BAC, the same BAC

as here — 313%. See Coughlin, supra at 400. After providing an extensive

history of the law regarding the admission of what additional evidence was

necessary to allow BAC levels, our Supreme Court stated that evidence of

alcohol consumption is admissible in cases were careless or reckless driving is

at issue and will not be viewed as “unfairly prejudicial” so long as it reasonably

establishes a degree of intoxication or, as in the Coughlin situation, unfitness

to walk across the street.

In arriving at that holding, it stated, “We decline to adopt a bright-

line rule predicating admissibility on the existence of independent

corroborating evidence of intoxication and, instead, hold that the

admissibility of BAC evidence is within the trial court’s discretion

based upon general rules governing the admissibility of evidence, see

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Pa.R.E. 401–403, and the court’s related assessment of whether the

evidence establishes the pedestrian’s unfitness to cross the street.”

Id. at 400-401 (emphasis added).

Regarding the use of expert testimony to establish impairment based on

a BAC, it went on to hold that where “an expert testifies thoroughly regarding

the effects that a given BAC has on an individual’s behavior and mental

processes, and where that expert specifically opines that a particular BAC

would render a pedestrian unfit to cross the street, we find the probative value

of such evidence outweighs its potential for unfair prejudice.” Id. at 409.

Moffitt contends that the Coughlin holding that expert testimony can

provide sufficient corroborating evidence to show impairment is not controlling

because there are witnesses to her behavior who established that she was not

impaired. Moffitt also claims that Coughlin is inapplicable “because the

Supreme Court intended to limit that holding to situations when there were

no witnesses.” In making that contention, Moffitt maintains that Coughlin

emphasized the importance of witnesses in determining whether to permit

other retrospective testimony, when it stated that:

As this case illustrates, there will not always be witnesses to
a car accident or to the parties’ behavior or demeanor leading up
to that accident. In such cases, evidence of a pedestrian’s BAC,
when combined with expert testimony explaining how the BAC
correlates with certain behavior, is particularly valuable, as it is
probative of intoxication and, perhaps, unfitness to cross a street.
If we were to categorically exclude relevant BAC evidence from all
cases which lack independent corroborating evidence of the
pedestrian’s intoxication, we would be depriving juries of
valuable insight, which, absurdly, would place pedestrians

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—whose intoxication potentially contributed to the
accident for which they are suing — at an unfair advantage
simply because no one happened to witness the
pedestrian’s behavior prior to the accident or the accident
itself.

Coughlin, supra at 409 (emphasis supplied).

Contrary to Moffitt’s claim, Coughlin’s allowance of expert testimony is

not limited to when there are no witnesses or there are witnesses that stated

that there was no impairment. In the above quoted statement, the Court did

not limit the admission of such evidence only to circumstances where there

are no witnesses, but was just commenting that it would be inequitable to

exclude such probative evidence. Moffitt’s argument is also in conflict with

the Court’s holding that expressly declined to adopt a bright line rule

concerning the admissibility of evidence of alcohol consumption but, instead,

stated that Rules of Evidence 401-403’s3 balancing framework is to be applied

____________________________________________

3 Pa R.E. 401 provides: “Whether evidence has a tendency to make a given
fact more or less probable is to be determined by the court in the light of
reason, experience, scientific principles and the other testimony offered in the
case.”

Pa R.E. 402 provides: “All relevant evidence is admissible, except as
otherwise provided by law. Evidence that is not relevant is not admissible.”

Pa.R.E. 403 provides: “The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.

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on a case-by-case basis in determining whether to admit BAC into evidence,

with the decision on admissibility left to the discretion of the trial court.

In this case, the trial court explained its rationale for allowing evidence

of Moffitt’s alcohol consumption before the accident as follows:

There was expert testimony detailing Appellant’s BAC and
the significance of that result on Appellant’s behavior. The
testimony and evidence was open to cross-examination by
Appellant or criticism by a counter-expert. Appellant, however,
did not offer such testimony. Furthermore, evidence of
intoxication may be relevant where there is corroborating
evidence, including evidence of consumption, blood alcohol
results, expert testimony, or testimony of Appellant’s physical
condition. At trial, there was testimony from Appellant, her
daughter, and a bar owner regarding Appellant’s behavior on the
night of the accident which the jury heard and the credibility of
which the jury was able to assess. This is simply not a case where
there is only the suggestion or ‘hint’ of alcohol consumption or
intoxication such that what might be considered limited or
unreliable evidence should be excluded. It was not a close call as
to whether Appellant may have been intoxicated on the night of
the accident.

(Trial Ct. Op., 1/25/23, at 3-4).

We discern no abuse of discretion in the trial court’s decision that

evidence concerning Moffitt’s alcohol consumption was relevant and probative

to the issue of causation in this case. Moffitt’s own testimony reflected that

she began consuming alcohol during the afternoon leading up to the accident,

that she continued drinking upon returning home, and then drank beer at a

bar immediately before the incident. Dr. Dackis testified unequivocally that a

.313% BAC level impaired her motor skills and sensory awareness. Given this

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evidence, the trial court did not abuse its discretion in allowing BAC evidence

to show that Moffitt was impaired when she crossed Lancaster Street.

B.

Moffitt also contends that Dr. Dackis was not qualified to testify

regarding her alleged intoxication because he has no experience in

toxicology.4 Pennsylvania Rule of Evidence 702 provides that an expert may

testify if “scientific, technical or other specialized knowledge” beyond that

possessed by a layperson will help the trier of fact to understand the evidence

or to determine a fact in issue, “a witness qualified as an expert by knowledge,

skill, experience, training or education may testify [thereto] in the form of an

opinion or otherwise.” Pa.R.E. 702. Thus, “[i]n Pennsylvania, the standard

for qualification of an expert witness is a liberal one.” Wright, supra at 976

(citation omitted). “The test to be applied when qualifying a witness is

whether the witness has any reasonable pretension to specialized knowledge

on the subject under investigation.” Id. (citation omitted). “The witness need

not possess all of the knowledge in a given field but must only possess more

knowledge than is otherwise within the ordinary range of training, knowledge,

intelligence or experience.” Id. (citation omitted). “If he does, he may testify

____________________________________________

4 Decisions regarding admission of expert testimony, like other evidentiary
decisions, are within the sound discretion of the trial court and we may reverse
only if we find an abuse of discretion or error of law. See Wright v.
Residence Inn by Marriott, Inc., 207 A.3d 970, 974 (Pa. Super. 2019).

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and the weight to be given to such testimony is for the trier of fact to

determine in view of the expert’s particular credentials.” Id. (citation

omitted).

In this case, the trial court explained its decision relating to Dr. Dackis’

qualifications as follows:

Dr. Dackis testified that he has worked as an addiction
specialist for 35 years. During voir dire, he discussed his clinical
practice and experience treating those with alcohol use issues. He
testified about his knowledge of alcohol abuse and his
understanding of the effect of alcohol use on individuals. Dr.
Dackis was not called as a toxicologist to decipher unknown blood
alcohol levels or to interpret the results of lab tests. Plaintiff’s
blood levels were already determined by a toxicologist and noted
in her medical records. Rather, Dr. Dackis was called to testify
about the effects of such levels on a person’s behavior and
conduct.

(Trial Ct. Op., 11/22/22, at 3).

We agree with the trial court’s conclusion that Dr. Dackis was qualified

to testify regarding Moffitt’s blood alcohol level and how that level likely

impacted her conduct on the night of the accident including her ability to cross

the road safely. Dr. Dackis’ testimony reflects that he met the standard of

“reasonable pretension to specialized knowledge” regarding the effects of

alcohol use relative to Moffitt’s consumption to assist the jury in its factfinding.

See Wright, supra at 976. We also emphasize, as did the trial court, that

Moffitt had the opportunity to counter Dr. Dackis’ testimony by calling her own

expert witness but did not do so.

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C.

Moffitt next contends the trial court erred by precluding testimony that

the location of the accident was an “unmarked crosswalk at an intersection.”

Moffitt claims that failure to permit this testimony created the prejudicial

inference that she was “jaywalking.” She contends that because she was

crossing the road where Beech Street intersected Lancaster Avenue that was

an unmarked crosswalk within the meaning of 75 Pa.C.S. § 102,5 which should

be considered in conjunction with 75 Pa.C.S. 3542(a) which states that

“[w]hen traffic-control signals are not in place or not in operation, the driver

of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway

within any marked crosswalk or within any unmarked crosswalk at an

intersection.” Moffitt goes on to contend that the trial court should have

instructed the jury about the relative obligations of the parties when a

pedestrian crosses the highway at an intersection. We disagree for two

reasons.

____________________________________________

5 The Vehicle Code defines the word “Crosswalk” as “(1) That part of a roadway

at an intersection included within the connections of the lateral lines of the
sidewalks on opposite sides of the highway, measured from the curbs or, in
the absence of curbs, from the edges of the traversable roadway; and, in the
absence of a sidewalk on one side of the roadway, that part of a roadway
included within the extension of the lateral lines of the existing sidewalk[; or]
(2) Any portion of a roadway at an intersection or elsewhere distinctly
indicated for pedestrian crossing by lines or other markings on the surface.”
75 Pa.C.S. § 102 (emphasis added).

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First, the evidence shows the location of the accident would not qualify

as a crosswalk because there are no sidewalks on either side of Beech Street

at this location that one could connect the lateral lines to the opposite side of

Lancaster Avenue. Moreover, Officer Burkhart testified and Moffitt even

admitted that there was no crosswalk on Lancaster Avenue where she crossed.

Second, the trial court explained that there was no need for this

instruction because:

This was not a case where a pedestrian crossed a roadway
within a crosswalk marked or unmarked, and a driver failed to
yield to such pedestrian . . . The question for the jury was whether
given all of the circumstances, Defendant acted negligently in the
operation of his vehicle and whether Plaintiff acted reasonably in
how and when she crossed the street that night. The jury
answered the question of whether Defendant was negligent in the
operation of his vehicle on the night of the accident in the
affirmative. The jury concluded that Defendant breached his duty
of care.

In her brief in support of her post-trial motion, Plaintiff cites
to the comment following Pennsylvania Standard Suggested Jury
Instructions 3.10 in support for the argument that it is proper to
charge both parties with a duty of ordinary care under the
circumstance. The court did so here. There was no suggestion
by the court to the jury that Plaintiff did not have the right to cross
the street. Rather, the jury was tasked with determining whether
both parties acted reasonably in the circumstances leading up to
the accident. Even if the area had been a marked crosswalk and
the jury was so advised, if Plaintiff had acted unreasonably in
deciding when to enter that crosswalk, she still could be found
comparatively negligent. In this case, the jury concluded that
both parties acted negligently on the night of the accident and
apportioned that negligence equally.

(Trial Ct. Op., 11/22/22, at 6).

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After review of the record, we discern no abuse of discretion in the trial

court’s decision to preclude Moffitt from constructing an argument that she

was struck in an “unmarked crosswalk.” The record shows that Moffitt was

crossing Lancaster Avenue mid-block, outside of any crosswalk, marked or

otherwise.

D.

Moffitt next maintains the trial court erred in failing to instruct the jury

on multiple relevant issues which, when viewed in the context of the trial

court’s decision to admit testimony relating to her intoxication and refusal to

permit the crosswalk evidence, resulted in jury confusion during deliberations.

(See Moffitt’s Brief, at 27-31 (listing 11 proposed jury instructions)).6 Moffitt

____________________________________________

6 The trial court declined to instruct the jury about:

• Negligence per se

• Violation of Section 3362 of the Motor Vehicle Code
(Speeding)

• Violating of Section 3361 of the Motor Vehicle Code (Assured
Clear Distance Rule)

• Intoxication (Plaintiff’s Proposed Jury Instructions #22,
#23, #24)

• Instructions regarding pedestrians in the roadway (Plaintiff’s
Proposed First Jury Instructions #32)

• Defendant Driver’s Duty of Care in Regard to Pedestrians
(Plaintiff’s Proposed Jury Instructions #35 and #36)

(Footnote Continued Next Page)

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reiterates her argument that the trial court should have instructed the jury as

to the parties’ respective obligations at an unmarked crosswalk and maintains

that she is entitled to a new trial. (See id. at 31).7

We begin by observing that the purpose of a jury charge is to clarify the

legal principles at issue and guide the jury in its deliberations. See

Rittenhouse v. Hanks, 777 A.2d 1113, 1118 (Pa. Super. 2001).

Additionally, “the trial court is not required to give every charge that is

requested by the parties and its refusal to give a requested charge does not

require reversal unless the Appellant was prejudiced by that refusal.” Amato,

supra at 621 (citation omitted). “[A] charge will be found adequate unless

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• Defendant’s Failure to Warn Plaintiff (Plaintiff’s Proposed
Jury Instruction #41)

• Duty of Motorist When Approaching an Intersection
(Plaintiff’s Proposed Supplemental Jury Instruction #3)

• Jury Instruction regarding Pedestrian in a Place of Danger
(Plaintiff’s Proposed Supplemental Jury Instruction #4)

• Duty of Defendant to have his vehicle under control as part
of the instruction on the “Assured Clear Distance Rule” (Plaintiff’s
Proposed Third Supplemental Jury Instruction 1)

• Failure to See Pedestrian in his Path (Plaintiff’s Proposed
Third Supplemental Jury Instruction 4)

7 “On appeal, this Court examines jury instructions to determine whether the

trial court abused its discretion or offered an inaccurate statement of law
controlling the outcome of the case.” Amato v. Bell & Gossett, 116 A.3d
607, 621 (Pa. Super. 2015) (citation omitted). “Consequently, the trial court
has wide discretion in fashioning jury instructions.” Id. (citation omitted).

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the issues are not made clear to the jury or the jury was palpably misled by

what the trial judge said or unless there is an omission which amounts to

fundamental error.” Ruff v. York Hosp., 257 A.3d 43, 56 (Pa. Super. 2021),

appeal denied, 266 A.3d 1064 (Pa. 2021).

In this case, the Court declined to give 11 of Moffitt’s proposed charges

on the basis of being unwarranted, explaining that it:

. . . declined to give any non-standard, or what the court often
refers to as ‘self-created,’ jury instructions proposed by either
party. It advised the parties that it would give the standard jury
instructions regarding negligence, factual cause, comparative
negligence, and recoverable damages. The standard jury
instructions provided by the court adequately, accurately, and
clearly stated the law. There also was no prejudice suffered by
Plaintiff for the court’s omitted charges.

* * *

The jury instructions provided by the court covered the legal
issues raised in Plaintiff’s proposed charges, namely that Plaintiff’s
conduct was to be evaluated by the jury and included not only her
duty of care but analysis of her actions as it relates to the issue of
causation—all of which was then broken out for the jury in
separate interrogatories on the verdict slip. Plaintiff has failed to
demonstrate in what way the trial court’s charges were inadequate
or erroneous or what prejudice was suffered.

(Trial Ct. Op., 11/22/22, at 6).

We discern no abuse of discretion or error of law in the trial court’s

decision not to instruct the jury on nearly a dozen non-standard charges in

this case where the complaint included a single count of negligence. The trial

court’s instructions fully and accurately stated the law, and Moffitt’s argument

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to the contrary ignores the fact that the jury did find Miller partially negligent.

Moffitt’s third issue does not merit relief.

E.

Last, Moffitt contends that the jury’s verdict was inconsistent with the

evidence and shocks the conscience to a degree necessitating a new trial.

Moffitt maintains the jury’s award is inadequate given the severity of her

injuries, fails to compensate her for non-economic pain and suffering, and is

against the weight of the evidence.8

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8

A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded when
the [factfinder’s] verdict is so contrary to the evidence as to shock
one’s sense of justice and the award of a new trial is imperative
so that right may be given another opportunity to prevail.

An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:

Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear and
see the evidence presented, an appellate court will give the
gravest consideration to the findings and reasons advanced
by the trial judge when reviewing a trial court’s determination
(Footnote Continued Next Page)

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“The amount of a jury verdict will rarely be held inadequate on appeal.”

Dawson v. Fowler, 558 A.2d 565, 567 (Pa. Super. 1989). “Generally, a

verdict will not be disturbed merely on account of the smallness of the

damages awarded or because the reviewing court would have awarded more.

A reversal based on the inadequacy of a verdict is appropriate only where

‘injustice of the verdict stands forth like a beacon.’” Davis v. Mullen, 773

A.2d 764, 766 (Pa. 2001) (citation omitted). Moreover, “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.” Kiser v. Schulte, 648 A.2d 1,

4 (Pa. 1994) (citing Elza v. Chovan, 152 A.2d 238 (Pa. 1959)). So long as

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

the function of the court to substitute its judgment for that of the jury. See

Epstein v. Saul Ewing, LLP, 7 A.3d 303, 315 (Pa. Super. 2010).

In this case, the trial court determined after observing the demeanor of

the witnesses, listening to the content of their testimony and assessing their

____________________________________________

that the verdict is against the weight of the evidence. One of
the least assailable reasons for granting or denying a new
trial is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.

Ruff, supra at 49 (citation omitted).

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credibility, that the jury’s verdict was not so contrary to the evidence to shock

one’s sense of justice. It explained:

This is not a case where a jury has awarded a plaintiff zero
dollars after having found a defendant negligent. As Plaintiff
concedes, her medical bills totaled $7,940. Those bills, however,
did not differentiate between any treatment of her leg injury and
treatment of the right eye. There also was much questioning
during the trial as to what may have caused the eye injury.
Similarly, although there was testimony from Plaintiff regarding
an alleged wage loss of approximately $3,500, there was no
documentary evidence to support that claim. The jury heard
testimony that her wage loss claim was based upon her position
as a server at a restaurant. The jury reasonably could have
concluded that Plaintiff’s testimony was not reliable on this issue.
Given the totality of circumstances and all of the facts as
presented at trial, the jury’s verdict on damages does not shock
the conscience and may be considered reasonable.

(Trial Ct. Op., 11/22/22, at 6).

As the trial court found, the jury award could have been calculated in

any number of ways based on its discounting or accepting of evidence

regarding those damages. The verdict sheet did not contain questions

requiring the jury to provide each element of damages in its total award.

Rather, as fact-finder, it was tasked with assessing the credibility of the

witnesses to calculate the total amount of damages. Although this may not

be the result that Moffitt had hoped, the verdict does not shock one’s sense

of justice.

Accordingly, for the foregoing reasons, we affirm the December 15,

2022 judgment entered on the jury’s verdict.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2023

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