J-A23017-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
KERIM AMADOU, AN INDIVIDUAL, : IN THE SUPERIOR COURT OF
SHAMAEL RAHAMANI, A MINOR : PENNSYLVANIA
INDIVIDUAL AND SHAKIB RAHAMANI, A :
MINOR INDIVIDUAL :
:
Appellants :
:
v. :
:
RONALD SARVER, :
:
Appellee : No. 1683 WDA 2015
Appeal from the Judgment Entered September 25, 2015
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 12-11773
BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 07, 2017
Kerim Amadou, Shamael Rahamani, and Shakib Rahamani (Appellants,
collectively) appeal from the September 25, 2015 judgment entered
following a jury trial in this motor vehicle collision case. We affirm in part,
vacate in part, and remand for further proceedings consistent with this
memorandum.
Appellee Ronald Sarver’s truck rear-ended Amadou’s vehicle when
Amadou was stopped in traffic in Pittsburgh’s West End Circle with Shamael
and Shakib, the minor children of his fiancée Fati Rahamani, in the back
seat. Sarver admitted liability but contested damages. A jury determined
that Sarver: (1) caused Shakib no injury, (2) caused injury without damages
*Retired Senior Judge assigned to the Superior Court.
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to Shamael, and (3) caused injury to Amadou in the amount of $1,400.
Appellants’ timely-filed post-trial motion was denied. This Court quashed an
interlocutory appeal filed before judgment was entered on the verdict. After
judgment was entered, Appellants timely filed another notice of appeal.
Appellants present this Court with two questions for review, which we
have reordered for ease of disposition:
[1.] Should a new trial be granted because the trial court
refused to instruct the jury that evidence regarding a lack of
seatbelt use cannot be used as a basis in refusing to provide
damages for injuries caused by another’s negligence?
[2.] Should a new trial be ordered on the ground that the
jury’s verdict is inadequate when the jury awarded economic
damages for wages that were lost as a result of pain yet failed to
award non-economic damages for pain and suffering?
Appellants’ Brief at 6 (trial court answers omitted).
We begin with our standard of review.
[I]t is well-established law that, absent a clear abuse
of discretion by the trial court, appellate courts must
not interfere with the trial court's authority to grant
or deny a new trial.
***
Thus, when analyzing a decision by a trial court to
grant or deny a new trial, the proper standard of
review, ultimately, is whether the trial court abused
its discretion.
Moreover, our review must be tailored to a well-settled, two-part
analysis:
We must review the court’s alleged mistake and
determine whether the court erred and, if so,
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whether the error resulted in prejudice necessitating
a new trial. If the alleged mistake concerned an
error of law, we will scrutinize for legal error. Once
we determine whether an error occurred, we must
then determine whether the trial court abused its
discretion in ruling on the request for a new trial.
Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288-89 (Pa. Super. 2015)
(citation omitted).
Appellants first claim that they are entitled to a new trial because the
trial court refused to provide a curative instruction regarding evidence they
claim was admitted in violation of 75 Pa.C.S. § 4581. Appellant’s Brief at
31. That statute, which inter alia requires the use of child passenger
restraint systems in vehicles, states in pertinent part the following:
(e) Civil actions.--In no event shall a violation or alleged
violation of this subchapter be used as evidence in a trial of any
civil action; nor shall any jury in a civil action be instructed that
any conduct did constitute or could be interpreted by them to
constitute a violation of this subchapter; nor shall failure to use a
child passenger restraint system, child booster seat or safety
seat belt system be considered as contributory negligence nor
shall failure to use such a system be admissible as evidence in
the trial of any civil action….
75 Pa.C.S. § 4581(e).
This Court has held that the subsection (e) of the statute “clearly and
unambiguously expresses the intent of the Legislature that evidence of non-
use of seat belts should be strictly prohibited in civil actions tried in
Pennsylvania courts, for any purpose.” Gaudio v. Ford Motor Co., 976
A.2d 524, 536 (Pa. Super. 2009) (holding, in case against vehicle
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manufacturer for defective air bag, that the trial court erred in denying a
motion in limine to exclude evidence that the decedent was not wearing his
seat belt at the time his air bags deployed).
The trial court addressed Appellants’ argument as follows:
In the case at hand, defense counsel read an excerpt from a
medical report that indicated that Shamael had been “sitting in
back seat/car seat without seat belt fastened tightly.” (N.T.,
162). [Appellants] interposed no immediate objection to the
excerpt read from the physician’s report. Following conclusion of
all testimony and immediately before the jury was charged,
however, [Appellants] requested a curative instruction. The
court refused to provide such an instruction. The matter could
have promptly and less conspicuously been addressed with a
timely hearsay objection or sidebar reference to the pertinent
statute. [Appellants’] belated[] request for a curative
instruction[] invited an underscoring of what had been an
incidental mention adequately rebutted by Ms. Rahamani’s
insistence that “we always put her in the car seat” and “he [Mr.
Amadou] always put her tightly [in the car seat].” (N.T., 162 -
163).
Further, [Appellants’] assignment of error presumes the
legitimacy of [their] contention that [Sarver’s] allusion to a
possibly unsecured restraint was improper. On the contrary, []
Amadou had made repetitive reference to having secured the
children in their restraints; had suggested that the use of
restraints may have contributed to his own injuries; and had
stated that Shamael’s injuries, specifically, may have resulted
from the proximity of her secured car seat to the rear of
[Amadou’s] driver seat (N.T. 21, 50, 51-52, 53). That
testimony, offered to explain the injuries that [Appellants]
attributed to [Sarver’s] negligence, placed [Appellants] at risk of
impeachment.
While, of course, [Appellants] might contend a curative
instruction should have been given even in view of the
appropriateness of [Sarver’s] effort at impeachment, there is
little indication of actual harm to [Appellants]. As to Shamael,
proof of any harm related to the accident was tenuous.
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Trial Court Opinion, 7/17/2014, at 8-9.
We are convinced neither that the trial court erred in declining the
instruction nor that Appellants were prejudiced by its absence. First,
Appellants have failed to establish the complained-of reference alleges a
violation of section 4581 that is prohibited by subsection (e). As quoted
above, the statute has been construed to prohibit evidence of non-use of
restraint systems. Gaudio, 976 A.2d at 536. Here, the jury heard that
Shamael was not tightly fastened into her car seat, not that there was any
failure to use a car seat. Furthermore, it would be fundamentally unfair to
allow Appellants to use the statute as both a sword and a shield, offering
evidence that there were injuries in spite of, or even because of, the use of
restraint systems, yet invoking the statute to preclude evidence that the
testimony the jury heard about such use was incomplete or false. Accord
Commonwealth v. Spiewak, 617 A.2d 696, 702 (Pa. 1992) (“The [rape
shield] statute cannot be both shield and sword. Here a statute is so
designed to protect the witness’s interest in preventing prejudicial disclosure
of the witness’s past behavior. It cannot at the same time preclude a
defendant from offering evidence which is so highly probative of the
witness’s credibility that such evidence is necessary to allow/permit a jury to
make a fair determination of the defendant’s guilt or innocence.”).
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Even if the trial court did err in refusing the instruction, Appellants
failed to show any prejudice. They baldly assert that, because Shamael was
awarded no damages, “[i]t is clear that the trial court’s refusal to provide
this instruction operated to Appellants’ prejudice.” Appellants’ Brief at 31-
32. They offer no citation to evidence that counters the trial court’s
representation that proof that Shamael suffered any harm caused by the
accident was “tenuous.” Trial Court Opinion, 7/17/2014, at 9. Indeed, it
appears to us more likely that potential prejudice was avoided, rather than
created, by the trial court’s declining to reference the irrelevant issue of
restraints in its charge to the jury. Without a showing of prejudice,
Appellants are not entitled to relief. Maya v. Johnson & Johnson, 97 A.3d
1203, 1218-19 (Pa. Super. 2014) (“A reviewing court will not grant a new
trial on the ground of inadequacy of the charge unless there is a prejudicial
omission of something basic or fundamental.”).
Because Appellants have not demonstrated either an error of law or
abuse of discretion in the refusal to charge the jury pursuant to 75 Pa.C.S.
§ 4581(e), we decline to reverse on that basis the trial court’s denial of their
motion for a new trial.
However, we reach a different conclusion as to Appellants’ claim that
the award of only lost wages to Amadou was against the weight of the
evidence. This Court’s decision in Marsh v. Hanley, 856 A.2d 138, 139 (Pa.
Super. 2004), warrants Amadou a new damages trial.
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The instant case is factually similar to Marsh. In that case, Hanley’s
vehicle collided with Marsh’s, Hanley admitted liability, and the jury awarded
Marsh $2,900 in damages. Marsh appealed after the trial court denied her a
new trial on damages.
In her appeal, [Marsh] argue[d] that the trial court erred
when it denied her motion for a new trial. She claim[ed] that
the jury’s award apparently compensated her for lost wages
only, and that the jury improperly awarded zero damages for
pain and suffering. The jury’s verdict slip did not identify the
specific nature of the award. However, the precise amount of
lost wages was $2909.88, and in closing argument, [Marsh’s]
counsel rounded the request for lost wages to $2900.00. It
seems clear that the jury’s award was for lost wages only, and
that they awarded zero dollars for pain and suffering.
Id. at 139. In reviewing the claim, this Court offered the following analysis
of the pertinent authority.
In Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001), an
en banc panel of this Court upheld a jury award of zero dollars
for pain and suffering. The court acknowledged that not all
injuries are serious enough to merit compensation. The Court
held that under the facts of that case it was not reversible error
to award zero damages for pain and suffering. The plaintiff in
Majczyk claimed she suffered a herniated disc in a minor
accident, causing ongoing pain and suffering, and requiring
surgery. Though both sides’ experts conceded that plaintiff
suffered some injury in the accident, the jury found in favor of
the defendant, whose expert opined the herniated disc was not
caused by the accident, and that plaintiff’s accident-related
injuries were actually less severe, a mere “cervical strain.”
The Majczyk Court specifically held that the jury may find
for the defendant despite his obvious negligence when it does
not believe the plaintiff’s pain and suffering, or that her injury is
the sort that is compensable. The Court quoted … the
proposition that some injuries are the sort of “transient rub of
life for which compensation is not warranted.” The Court further
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held that “the determination of what is a compensable injury is
uniquely within the purview of the jury.” The Court confirmed
that credibility determinations lie within the province of the fact
finder, and a jury is always free to believe all, part, some or
none of the evidence presented. The Court concluded that,
based on this 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 v. Mullen, [] 773 A.2d 764 ([Pa.] 2001) (jury
may decide that no pain and suffering damages are due, even
where medical expenses are awarded).
However, the instant case is different from Majczyk where
the injury was not significant, and where the accident involved a
minor rear end collision. This case is controlled by Burnhauser
v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000). In
Burnhauser, as here, the jury’s minimal damages award
matched exactly the amount of plaintiff’s unreimbursed medical
expenses ($1257.24). The Court concluded that the jury
therefore awarded zero dollars for pain and suffering, and this
award bore no reasonable relationship to the loss suffered in a
head-on collision, soft tissue injuries with pain that lasted for 6
months. Essentially, the Court held as a matter of law that this
was a compensable injury, the jury’s verdict of zero damages for
pain and suffering was contrary to the evidence, and affirmed
the trial court’s grant of a new trial. Like in Burnhauser, the
instant case involved more than a minor rear end collision.
Appellant’s car was struck twice on the driver’s side. An
ambulance transported appellant to the hospital; she suffered
injuries which required her to take medications; her symptoms
did not ameliorate for almost six months; and she lost
considerable time from work. Unlike the plaintiff in Majczyk,
appellant here suffered compensable injury, and we hold
Burnhauser controls. We therefore reverse the trial court’s
order denying a new trial on damages.
Marsh, 856 A.2d at 139-40 (footnote and some citations omitted; some
capitalization added).
Applying this law to the case at hand, we first note that because the
jury concluded that Sarver’s negligence caused injury to Amadou and
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awarded him damages, there is no question that the jury determined that
Amadou did suffer a compensable injury. Accordingly, the trial court’s
reliance upon cases such as Majczyk, in which the jury found that the
plaintiff suffered no compensable injury, is misplaced.
Similarly, the Davis case cited in Marsh and relied upon by Sarver in
his brief,1 is materially distinguishable. In Davis, the jury awarded medical
expenses and property damages, but none for pain and suffering. Because
the evidence was such that the jury could have concluded either that Davis
suffered no pain or that the pain was not related to the accident, our
Supreme Court held that the trial court properly exercised its discretion in
denying Davis’s motion for a new trial. Davis, 773 A.2d at 766-67.
The Davis result is logical: the facts that the vehicle was damaged and
the driver, who missed no work, eventually went to a medical provider do
not necessarily mean that the driver experienced any lasting discomfort as a
result of the collision. Pain and suffering do not necessarily follow property
damage and medical expenses.
That is not true for the economic damages awarded in the instant
case. The only evidence the jury heard about the cause of Amadou’s lost
wages was his testimony that he was unable to go to work was because he
was experiencing pain, and that the pain medication made him too dizzy to
drive. N.T., 1/10/2014, at 58-63. Amadou’s economic loss was not
1
See Sarver’s Brief at 39-40, 54-55.
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separable from his pain; it was the result of his pain. Therefore, in choosing
to award Appellant lost wages, the jury necessarily had to believe that
Amadou experienced pain and suffering as a result of Sarver’s negligence.
Yet it gave him no award for that pain. Under Marsh, such a verdict is
against the weight of the evidence and warrants a new trial on damages.
Accordingly, we vacate the judgment as to Amadou, and remand for a new
trial to determine the amount of damages he suffered as a result of Sarver’s
negligence.
Judgment affirmed in part2 and vacated in part. Case remanded for
further proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judge Lazarus joins.
Judge Stabile files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
2
The record does not indicate that the jury necessarily found that Shamael
and Shakib suffered compensable injury. Accordingly, the new trial shall be
limited to determining the amount of damages suffered by Amadou. We do
not disturb the judgment as to Shamael and Shakib.
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Amadou, K. v. Sarver, R.
Combined Opinion