Kiser v. Schulte

Decision Date13 September 1994
PartiesJohn A. KISER and Cheryl Kiser, Administrators of the Estate of Kerry Ellen Kiser, Deceased; John A. Kiser and Cheryl Kiser, in their own right, v. Daryl SCHULTE, v. Jeffrey HAMPE, Marshall Black, Francine Fox, Keith Fox, Michael A. Slachta, Roxanne M. Fox Slachta, Linda L. Fox Trinnes and Edward Trinnes. Appeal of Linda L. Fox TRINNES and Edward Trinnes, John A. KISER and Cheryl Kiser, Administrators of the Estate of Kerry Ellen Kiser, Deceased; John A. Kiser and Cheryl Kiser, in their own right, v. Daryl SCHULTE, Appellant, v. Jeffrey HAMPE, Marshall Black, Francine Fox, Keith Fox, Michael A. Slachta, Roxanne M. Fox Slachta, Linda L. Fox Trinnes and Edward Trinnes.
CourtPennsylvania Supreme Court

Peter B. Skeel, Swensen, Perer & Johnson, Pittsburgh, PA, for appellants in No. 71.

Frank M. Gianola, Michael Nerone, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA, for appellants in No. 72.

James B. Cole, Pittsburgh, for John and Cheryl Kiser.

Deborah A. Little, Pittsburgh, for Jeffrey Hampe.

Frank M. Gianola, Michael Nerone, Dickie, McCamey & Chilcote, P.C., Pittsburgh, for Daryl Schulte.

Warren Siegfried, Wayman, Irvin & McAuley, Pittsburgh, for Michael A. Slachta and Roxanne M. Fox Slachta.

Maury Nusbaum, Pittsburgh, for Marshall Black, Pittsburgh, PA, for appellee in No. 71.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

Appellants Daryl Schulte, Linda Fox Trinnes, and Edward Trinnes appeal from an Order of the Superior Court vacating the jury's award of damages as inadequate and remanding the case for a new trial on the issue of damages alone. We affirm.

The issues presented for our review are: (1) whether the jury award of $25,000 for the wrongful death and survival claims arising out of the death of Kerry Ellen Kiser was so inadequate as to "shock the conscience"; and (2) whether the case should be remanded for a new trial solely on the issue of damages.

The pertinent facts in this case are as follows. On March 6, 1987, Appellant, Daryl Schulte, attended a wedding reception organized by the bride's parents, Co-Appellants Linda Fox Trinnes and Edward Trinnes. Schulte, then 18 years old, took his girlfriend and Appellee's decedent, Kerry Kiser, as passengers. These two women were also eighteen years old.

At the reception Schulte, his girlfriend, and Kiser consumed large quantities of alcoholic beverages. They remained at the reception from 7:00 p.m. until 9:30 p.m. where Schulte consumed between six and eight whiskey sours. Schulte and the women left the reception in Schulte's father's car with Schulte driving. He proceeded to drive at a high rate of speed when, not far from the reception, his car rammed another car, hit the curb, became airborne, hit a street light pole, and flipped over in an adjacent field. Schulte and his girlfriend suffered minor injuries. Ms. Kiser was thrown from the vehicle and suffered fatal injuries.

Appellees brought wrongful death and survival actions against Schulte. Schulte joined the Trinneses as additional defendants as well as the bartenders and the bride and groom. At trial, extensive testimony was presented that went to the issue of liability.

The only evidence on the issue of damages was offered by the Appellees. The parents and siblings of the deceased testified as to the character and personality traits of Ms. Kiser. Appellees also offered the only expert testimony in the form of a video-taped deposition of Dr. James L. Kenkell, Ph.D., a professor of economics at the University of Pittsburgh. He testified that the value of the loss of services to the Kiser family, resulting from the death of Ms. Kiser, would range from $11,862.50 to $18,980.00.

Dr. Kenkell further testified as to the net economic loss resulting from the death of Appellant's decedent. He testified that this figure included potential income, fringe benefits, and household services--less personal maintenance expenses. He explained how he employed various data compiled by the U.S. government and other sources to arrive at a net economic loss figure. Dr. Kenkell estimated that a white female, such as Ms. Kiser, would have a working lifetime of 42.5 years. He then projected that as a high school graduate she could expect to earn $792,352.15 over that lifetime or $18,643.58 per year. After adding in fringe benefits and household services, Dr. Kenkell subtracted personal maintenance expenses which he calculated at 40% of income. Thus, the figure of $571,659.29 was arrived at as the net economic loss resulting from the death of a white female high school graduate of the same age as Ms. Kiser.

As Ms. Kiser was enrolled in a two-year college program at the time of her death, Dr. Kenkell also calculated a net economic loss figure for a college graduate. This figure was $756,081.43 based on a four year degree program. He explained that the figure for a graduate of a two-year college program was roughly midway between the high school and four-year college figures.

On cross-examination, Dr. Kenkell admitted that there was a probability that Ms. Kiser's working lifetime would be less than 42.5 years. He stated that the average working lifetime for a woman who took time away from her career to raise a family was 29.1 years. Further, he admitted that the 40% rate he used for the personal maintenance deduction may have been low. He conceded that a 70% rate may more accurately reflect personal maintenance. Using these new parameters, Dr. Kenkell recalculated the net economic loss and arrived at a figure of $232,400.20 for a white high school graduate.

The jury returned answers to special interrogatories with its verdict. It found negligence on the part of Mr. Schulte as the driver and the Trinneses as the reception hosts. It also found that Ms. Kiser was negligent. However, the jury specifically found that Ms. Kiser's negligence was not a substantial factor in bringing about her death. The jury found that the negligence of Mr. Schulte and the Trinneses were substantial factors and assessed liability at 60 percent and 40 percent respectively. The jury then awarded damages in the amount of $25,000. The Superior Court vacated this award after finding it inadequate and remanded the case for trial on the issue of damages alone.

It is well settled that the grant of a new trial is a matter within the discretion of the trial court. Burrell v. Philadelphia Elec. Co., 438 Pa. 286, 288, 265 A.2d 516, 517 (1970); Krivijanski v. Union Ry. Co., 357 Pa.Super. 196, 199, 515 A.2d 933, 935 (1986). However, that discretion is not absolute, and this Court will reverse the lower court if it has abused its discretion. Burrell, 438 Pa. at 288, 265 A.2d at 517 (citing Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969)).

In the instant case, we find that the trial court abused its discretion in not awarding a new trial because the jury verdict was clearly inadequate. A jury verdict is set aside as inadequate 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. Elza v. Chovan, 396 Pa. 112, 114, 152 A.2d 238, 240 (1959); Slaseman v. Meyers, 309 Pa.Super. 537, 541, 455 A.2d 1213, 1215 (1983). Where the jury's verdict is so contrary to the evidence as to "shock one's sense of justice" a new trial should be awarded. Burrell, 438 Pa. at 289, 265 A.2d at 518; Bochar v. J.B. Martin Motors, 374 Pa. 240, 242, 97 A.2d 813, 814 (1953). It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by the witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgement for the jury's. Elza, 396 Pa. at 115, 152 A.2d at 240 (citing Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816 (1953)). However, where the injustice of the verdict "stand[s] forth like a beacon", a court should not hesitate to find it inadequate and order a new trial. Elza, 396 Pa. at 118, 152 A.2d at 241; Slaseman, 309 Pa.Super. at 540; 455 A.2d at 1215. We find that the jury's verdict in the case at bar was so contrary to the uncontroverted evidence introduced at trial as to shock the sense of justice of a reasonable trial judge and to necessitate the award of a new trial.

Here, the Kisers brought wrongful death and survival actions against the defendants. 1 An action for wrongful death may be brought by the personal representative of those persons entitled to receive damages for wrongful death under the statute. Tulewicz v. S.E. Pa. Transp. Auth., 529 Pa. 588, 596, 606 A.2d 427, 431 (1992). See also 42 Pa.C.S. § 8301(d). Wrongful death damages are established for the purpose of compensating the spouse, children, or parents of a deceased for pecuniary loss they have sustained as a result of the death of the decedent. Tulewicz, 529 Pa. at 597, 606 A.2d at 431; Burkett v. George, 118 Pa.Commw. 543, 546, 545 A.2d 985, 987 (1988). The damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had she lived, as well as funeral and medical expenses. Burkett, 118 Pa.Commw. at 546, 545 A.2d at 987; Heffner v. Allstate Ins. Co., 265 Pa.Super. 181, 190, 401 A.2d 1160, 1164 (1979).

A survival action, on the other hand, is brought by the administrator of the decedent's estate in order to recover the loss to the estate of the decedent resulting from the tort. Tulewicz, 529 Pa. at 597, 606 A.2d at 431; Prince v. Adams, 229 Pa.Super. 150, 154, 324 A.2d 358, 360 (1974). The measure of damages awarded in a survival action include the decedent's pain and suffering, the loss of gross earning power from the date of injury until death,...

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