Burns v. Pepsi-Cola Metropolitan Bottling Co.

• Decision Date: 09 June 1986
• Docket Number: PEPSI-COLA
• Citation: 353 Pa.Super. 571,510 A.2d 810
• Parties: David BURNS and Diane Burns, H/W v.METROPOLITAN BOTTLING COMPANY and Pepsico, Inc. and Pepsi-Cola Metropolitan Bottling Group, Inc. and Kenneth L. Bello, T/A K.L. Bello Mobile Lunch Service. Appeal ofMETROPOLITAN BOTTLING COMPANY, Appellant.
• Court: Pennsylvania Superior Court

Page 810

510 A.2d 810

353 Pa.Super. 571

David BURNS and Diane Burns, H/W v. PEPSI-COLA METROPOLITAN BOTTLING COMPANY and Pepsico, Inc. and Pepsi-Cola Metropolitan Bottling Group, Inc. and Kenneth L. Bello, T/A K.L. Bello Mobile Lunch Service Appeal of PEPSI-COLA METROPOLITAN BOTTLING COMPANY, Appellant.

Superior Court of Pennsylvania.

Argued March 11, 1986.

Filed June 9, 1986.

Charles J. Bogdanoff, Philadelphia, for appellant.

Steven E. Wolfe, Holland, for Burns, appellees.

Before WICKERSHAM, WIEAND and POPOVICH, JJ.

WICKERSHAM, Judge:

Pepsi-Cola Metropolitan Bottling Company appeals from the judgment entered against it and in favor of appellees, David and Diane Burns, by the Court of Common Pleas of Bucks County.

Appellee David Burns ingested glass particles contained in a bottle of Pepsi-Cola soft drink purchased from a lunch truck at his place of work on June 22, 1981. Appellee was hospitalized on several occasions subsequent to this incident because of medical problems which developed from the passage of the glass particles through his digestive system, including gastrointestinal pain and rectal bleeding. He was later treated by a psychologist for symptoms of post-traumatic stress disorder.

Appellees instituted the instant action seeking recovery for the physical and psychological injuries sustained by David arising from the glass ingestion incident and for Diane's loss of consortium. The jury awarded damages to David Burns in the amount of $8,662.35 for medical expenses, $644.00 for lost wages, and $15,000.00 for pain and suffering. Diane Burns received $15,000.00 for loss of consortium.

Appellant timely filed this appeal to our court. It presents five issues ¹ for appellate review. After a thorough review of the record, the briefs of the parties and the pertinent caselaw, we conclude that appellant's issues three, four, and five have been succinctly and accurately addressed by Judge Leonard B. Sokolove in his opinion dated June 11, 1985, and require no further elaboration here. We therefore address only appellant's remaining issues below.

Initially, we turn to appellant's first issue. Appellant here argues that a new trial or remittitur is warranted because the trial court improperly excluded evidence of appellee Diane Burns' heroin addiction and an alleged extra-marital affair as not relevant to her loss of consortium claim. In the alternative, appellant contends that the lower court abused its discretion in refusing to award a new trial or remittitur below, in light of an excessive jury award for Diane's loss of consortium. We cannot, however, discern any merit in either argument.

First, with regard to appellant's primary argument regarding the exclusion of evidence of Diane Burns' drug use and alleged extra-marital affair, we must agree with the trial court that this evidence was irrelevant to disproving appellee's loss of consortium claim.

In this Commonwealth, loss of consortium has been recognized as a

right growing out of the marriage relationship which the husband and wife have respectively to the society, companionship and affection of each other in their life together. As thus defined and limited, any interference with this right of consortium by the negligent injury to one spouse, should afford the other spouse a legal cause of action to recover damages for that interference.

Leo v. Bottman, 40 Wash. Co. 105, 108-09 (Pa.1960). The right to recover for loss of consortium springs from the English common law and once extended solely to a husband's recovery for the loss of service rendered to him by his wife. That right was later expanded in this country to include a wife's recovery for the loss of services rendered by her husband. Pennsylvania law originally followed the common law rule, but acknowledged a wife's right to recover damages for the loss of her injured husband's services under a loss of consortium theory in Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974). Under Hopkins, those services which may be compensated for in damages by either spouse are: "whatever of aid, assistance, comfort, and society [one spouse] would be expected to render or bestow upon [the other], under the circumstances and in the condition in which they may be placed." Id. at 117, 302 A.2d at 856.

It is clear from the above, that a consortium claim is grounded on the loss of a spouse's services after injury. In calculating the extent of the deprivation to the spouse claiming loss of consortium and disruption to the family life caused by the loss of those services normally performed by the injured spouse, certainly the parties' interpersonal relationships and the state of their marriage immediately before the injury is helpful in calculating any loss sustained after it, and is therefore relevant. In the instant case, however, Diane Burns' earlier drug dependency, which was no longer a source of tension in the marriage, was not relevant to the issue of what services she lost from David after his injury. As found by the trial judge, inferences that Diane Burns engaged in drug use would go only toward proving her character, which was not a concern in determining what loss of consortium she suffered.

Similarly, Diane Burns' alleged 1978 extra-marital affair was irrelevant as too remote in time to David's injury to possibly prove that marital problems existed immediately before the glass ingestion incident. The alleged "affair" was based on David Burns' statement contained in Eugenia Hospital records that he had found his wife in bed with another man on a single occasion fully three years before his injury. Since appellant could not show how this alleged incident, significantly removed in time from the date of David Burns' injury would possibly diminish Diane's loss of his services, we do not believe the trial judge improperly excluded that evidence. Nor do we accept appellant's "back-door" argument that evidence of the alleged indiscretion should have been admitted for the limited purpose of impeachment. ² We therefore find appellant's primary argument in support of its first issue to be wholly without merit.

We are also compelled to dismiss its alternative argument that the jury's verdict for loss of consortium was excessive. In evaluating an argument that a verdict is excessive, it is clear that each case is to be decided accordingly to its unique facts and circumstances. Fretts v. Pavetti, 282 Pa.Super. 166, 422 A.2d 881 (1980). Moreover, the granting or denial of a new trial on this ground is within the discretion of the trial court and will not be reversed, absent a clear abuse of discretion. Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 473 A.2d 120 (1984). Our court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982). Only if that standard is met may we substitute our judgment for that of the jury which heard and evaluated all the evidence at trial, and that of the trial judge who reviewed the size of the verdict. See Krupa by Krupa v. Williams, 316 Pa.Super. 408, 463 A.2d 429 (1983).

Being mindful of these guidelines, we can find no grounds for the grant of a new trial or remittitur based upon the verdict rendered in the instant case. Consortium is an element of damages which has no market value and the amount to be awarded for its loss is particularly for the common sense and sound judgment of the jury. See Mueller v. Brandon, 282 Pa.Super. 37, 422 A.2d 664 (1980). In determining whether the jury's award is shocking in this case, we look at its unique facts and review the extent of deprivation to Diane Burns and the disruption to the Burns' family life caused by the loss of those services performed by David. See Reuter v. United States, 534 F.Supp. 731 (W.D.Pa.1982) (applying Pennsylvania law).

In the instant case, appellee David Burns presented compelling testimony as to the severe negative effects the glass ingestion incident had upon his marriage. He testified to the changes which occurred in the couple's previously happy marital relationship because of his mood swings, idiosyncratic eating habits, and refusal to have sexual relations with Diane for a year after the incident. N.T. 97-103, 9/22/83. He further testified to the significant disruption his condition caused with regard to his inability to assist Diane with co-parenting their young child. N.T. 99-100, 9/22/83.

Appellant argues that appellee Diane Burns' recovery was nonetheless unsupported by the evidence since she did not testify at trial. ³ Appellant, however, does not cite any authority to support this assertion and our own research has not revealed any legal precedent to that effect in this jurisdiction. While it is true that in most cases the spouse seeking damages for loss of consortium has in fact testified, there is no language in any of those cases which we have reviewed which mandates that he or she do so. See, e.g., Griffin v. Ensign, 234 F.2d 307 (3d Cir.1956); Monaghan v. Uiterwyk Lines Ltd., 607 F.Supp. 1020 (E.D.Pa.1985); Reuter v. United States, supra; Barnes v. United States, 516 F.Supp. 1376 (W.D.Pa.1981), aff'd in part, 678 F.2d 10 (3d Cir.1982), aff'd, 685 F.2d 66 (3d Cir.1982) ; Karle v. National Fuel Gas Distribution Corp., 448 F.Supp. 753 (W.D.Pa.1978); DeMarines v. KLM Royal Dutch Airlines, 433 F.Supp. 1047 (E.D.Pa.1977), rev'd on other grounds, 580 F.2d 1193 (3d Cir.1978); Brown v. Philadelphia Transportation Co., 437 Pa. 348, 263 A.2d 423 (1970); Thompson v. Anthony Crane Rental, Inc., supra; Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983); Hopkins v. Blanco, supra.

Furthermore, this court has permitted a verdict for loss of consortium to stand, absent the testimony of the wife-claimant in Thompson v. Anthony Crane Rental, Inc., supra, where the jury awarded $150,000 to the wife for loss of...