Burkett v. George
| Decision Date | 15 August 1988 |
| Citation | 545 A.2d 985,118 Pa.Cmwlth. 543 |
| Parties | Gary L. BURKETT, Administrator of the Estate of Robert A. Burkett, Deceased, and Guardian Ad Litem for all persons entitled to share in damages for the wrongful death of Robert A. Burkett v. John Stephen GEORGE and The Township of Monroe. Appeal of The TOWNSHIP OF MONROE. Gary L. BURKETT, Administrator of the Estate of Robert A. Burkett, Deceased, and Guardian Ad Litem for all persons entitled to share in damages for the wrongful death of Robert A. Burkett, Appellant, v. John Stephen GEORGE and the Township of Monroe, Appellees. |
| Court | Pennsylvania Commonwealth Court |
John M. Eakin, and Murrel R. Walters, Mechanicsburg, for Gary L. Burkett, et al.
James D. Flower, Jr., Carlisle, for John Stephen George.
Before CRUMLISH, Jr., President Judge and McGINLEY, J., and NARICK, Senior Judge.
Gary L. Burkett, Administrator of his son Robert's estate, and the Township of Monroe cross-appeal a Cumberland County Common Pleas Court order granting and denying certain post-trial motions. The final order granted a new trial as to survival and wrongful death damages but denied a new trial on the issue of liability. We affirm in part and reverse and remand in part.
Robert Burkett, an eighteen year old computer paper machine operator, died as a result of injuries sustained in an automobile accident. Burkett was a passenger in a car driven by John Stephen George, who, while driving in a construction zone, lost control on a curve causing the vehicle to leave the road and overturn. A jury heard evidence on the wrongful death and survival action and found defendant George and Monroe Township each fifty percent negligent. The jury awarded wrongful death damages in the amount of $50,000 but did not award damages in the survival action.
After argument on post-trial motions, the common pleas court granted a new trial on survival and wrongful death damages holding that the amounts awarded were inconsistent with the evidence. The trial court found no merit to the motion for a new trial on liability. It concluded that once the township elected to post the construction zone, Section 6122 of the Vehicle Code, 75 Pa.C.S. § 6122, required the signs to be official traffic control devices.
Burkett here contends that a new trial should be awarded on survival damages alone. The township responds that the jury decision was proper in all respects but in the alternative moved for a new trial on wrongful death damages and liability.
Our scope of review of a common pleas court order granting in part and denying in part motions for new trial is limited to ascertaining whether the court abused its discretion or committed an error of law. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977). Additionally, whether to grant a new trial because of the inadequacy of the verdict is within the discretion of the trial court, and its decision will not be disturbed unless an abuse exists. Bortner v. Gladfelter, 302 Pa.Superior Ct. 492, 448 A.2d 1386 (1982).
Wrongful death damages are established in 42 Pa.C.S. § 8301 for the purpose of compensating the spouse, children or parents of a deceased for pecuniary loss they have sustained by the denial of future contributions the deceased would have made in her lifetime. Bortner. Certain administration, funeral and medical expenses may also be recovered. 42 Pa.C.S. § 8301(c).
The common pleas court concluded that the only evidence presented in support of Burkett's claim for wrongful death damages was $2,567.00 funeral expenses. The court noted that the decedent was emancipated. Although he lived at home, no room or board payments had been made nor was there an expectancy of such in the future. Hence, the $50,000 wrongful death award by the jury bore no relation to the damages submitted and, accordingly, the common pleas court granted a new trial.
To support the order granting a new trial for inadequacy, "the injustice of the verdict should stand forth like a beacon." Bortner, 302 Pa.Superior Ct. at 496, 448 A.2d 1388.
Burkett contends that the common pleas court erred in awarding a new trial because the township failed to file post-trial motions objecting to the award and because the jury properly estimated the future contributions the deceased may have made.
Initially, we note that in its motion for post-trial relief, the township averred in paragraph four, "However, in order that the rights of Defendant Township shall be preserved, Defendant filed the within Motions for Post Trial Relief, in the alternative, as to both liability and damages." We hold that this statement adequately raised the challenge to the wrongful death award and complies with the requirements of Pa.R.C.P. No. 227.1, Post-Trial Relief. 1
Next, although we agree with Burkett that wrongful death damages as to pecuniary losses are, to an extent speculative, Pine v. Synkonis, 79 Pa.Commonwealth Ct. 479, 470 A.2d 1074 (1984), we conclude that the common pleas court did not abuse its discretion in setting aside the $50,000 award. The evidence establishes that decedent spent most of his income on his interest in automobiles and made no regular contributions to his parents. The jury award here goes beyond mere speculation.
Survival damages represent earnings the deceased would have made during the period of his life expectancy subtracted by the probable cost of his maintenance as shown by the evidence and any amount awarded for wrongful death. 2 Bortner.
Burkett's consulting actuary testified that the deceased's life expectancy was 53.3 years and work expectancy to age 65 was 46 years. The actuary estimated decedent's net loss of earnings to be $763,447. 3
The common pleas court concluded that the jury's failure to award any damages as to this action was error because it ignored uncontradicted evidence of solid employment skills.
The Township contends that this conclusion is error because the damage verdicts were a "compromise" to the jury's verdict on liability. A "compromise verdict" is one where the jury, in doubt as to defendant's negligence or plaintiff's freedom from contributory negligence, returns a verdict for the plaintiff but in a lesser amount than it would have if these questions had been free of doubt. Stokan v. Turnbull, 480 Pa. 71, 78, 389 A.2d 90, 93 (1978).
We agree with the common pleas court that the refusal by the jury to award any survival damages does not constitute a compromise verdict. Bortner. The township seeks to have this Court ordain that part of the wrongful death damages ($50,000) in excess of funeral costs ($2,567) as survival damages. We have no such authority. A new trial for survival damages was properly awarded.
Turning to the final issue of whether a new trial on the liability issue was properly denied by the trial court, we must first review a municipality's duty under Section 6122 of the Vehicle Code to...
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