Mader v. Duquesne Light Co.

• Citation: 199 A.3d 1258
• Decision Date: 30 November 2018
• Docket Number: No. 609 WDA 2018,609 WDA 2018
• Parties: Steven MADER v. DUQUESNE LIGHT COMPANY, Appellant
• Court: Superior Court of Pennsylvania

199 A.3d 1258

Steven MADER
v.
DUQUESNE LIGHT COMPANY, Appellant

No. 609 WDA 2018

Superior Court of Pennsylvania.

Argued October 31, 2018
Filed November 30, 2018

Gary P. Hunt, Pittsburgh, for appellant.

Joel Rosen, Philadelphia, for appellee.

BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY MURRAY, J.:

Duquesne Light Company (Appellant) appeals from the order granting the post-trial motion of Steven Mader (Mader) seeking a new trial as to damages. After

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careful consideration, we reverse in part, affirm in part, and remand to the trial court.

The trial court detailed the relevant facts and procedural history of this case as follows:

Steven Mader, a fifty-four masonry contractor, worked on a two week project involving repairs to the chimney, fireplace and front stoop of an existing home in the North Hills of Pittsburgh. On September 21, 2012, after the project had been completed and Mr. Mader's crew was beginning to clean up, the customer asked Mr. Mader if he could check the gutters to see if any mortar from the chimney repair had been washed into them during a recent rainstorm. Mr. Mader used a sixteen foot aluminum extension ladder to check the gutters and then, carrying the ladder perpendicular to the ground, began walking from the home to place the ladder on his truck. Underground electrical service was provided to every home in the neighborhood, and Mr. Mader had not noticed that there were electrical power lines only eleven feet away from his customer's home.

With only air insulating this 13,000 volt electrical transmission line, the top of the ladder being carried by Mr. Mader made contact with it. The electricity ran down the ladder and through his body, causing him to immediately lose consciousness and fall to the ground. He regained consciousness and was taken to the hospital by ambulance with severe burn injuries to both of his arms (where he had been holding the ladder) and his feet (where the electricity exited his body). Mr. Mader ... ultimately survived what could have been a fatal electrocution.

The next day, surgery was performed on Mr. Mader's feet and right arm at the hospital. Both of his feet were burned from the toes to the mid-forefoot with the burn reaching the bone. Dead or dying tissue was excised and then cadaver grafts placed on Mr. Mader's feet. Tissue was excised from his right arm, which also was burned to the bone. To relieve the swelling of Mr. Mader's right arm, the hospital opened the subcutaneous layers of skin (which is known as a fasciotomy ) and performed a cadaver graft. On September 29 he had another surgery at the hospital. The fasciotomy of Mr. Mader's right arm was closed and tissue was excised from his left hand and wrist. On October 1 both his feet were amputated in the middle of the arch, which is known as a transmetatarsal amputation. On October 3 Mr. Mader returned to the hospital operating room for irrigation of the amputation wounds. On October 10 he had an additional surgery to excise tissue and place a wound vac in his right forearm. Mr. Mader's final surgery at the hospital was on October 25. Tissue was debrided around his elbow and he also received an autograft, which consisted of removal of healthy skin from [his] upper thighs that was used to replace skin he had lost. He then was moved out of the hospital to a skilled nursing facility, where he stayed for the next month and a half.

While in the hospital, Mr. Mader kept his masonry contracting business operating with his two employees able to do the jobs scheduled before September 21 without him on the sites. At the time of the year when Mr. Mader moved to the skilled nursing facility, his past practice was to shift the business primarily to chimney cleaning. Mr. Mader received calls on his cell phone for chimney cleaning, and his two employees came to the nursing facility daily to receive chimney cleaning assignments. While Mr. Mader was confined to a wheelchair when he

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left the nursing facility, he now is able to walk with his gait altered to accommodate the amputation of the balls of his feet. He did, however, close his business approximately two years after his injury because he could no longer participate in the physical process of bricklaying and his customers would not pay his prices without him doing the work.

In April of 2013, Mr. Mader sued [Appellant], the owner of the 13,000 volt electric power line he contacted with his ladder. Mr. Mader averred [Appellant]'s negligence in maintaining the electric lines too close to the ground, caused his injuries. Mr. Mader also averred [Appellant] acted with reckless indifference to his safety and therefore should pay punitive damages. The dispute was resolved in a jury trial[.] ... At the conclusion of the trial, the jury returned a verdict allocating [Appellant] sixty percent negligent and Mr. Mader forty percent negligent for his injuries. The jury awarded Mr. Mader $500,000 in compensatory damages and found [Appellant]'s conduct did not warrant punitive damages.

Consistent with the Pennsylvania Suggested Jury Instructions Mr. Mader requested, [the trial court] instructed the jury that he is entitled to compensation for past medical expenses, past lost earnings, future lost earning capacity, past and future pain and suffering, embarrassment and humiliation, loss of ability to enjoy the pleasures of life and disfigurement. See Exhibit 13 filed 3/20/2018, pp. 68-74. However, the written December 8, 2017 "Jury Verdict" provides this ... itemization of Mr. Mader's damages:

(a) Past medical expenses $ 444,525.56
                (b) Future medical expenses $ 55,474.44
                (c) Past lost earnings ____________
                (d) Future lost earning capacity ____________
                (e) Past, present, and future pain
                and suffering, embarrassment and
                humiliation and loss of enjoyment of life ____________
                (f) Disfigurement ____________
                Total $ 500,000.00
                

Mr. Mader timely filed a motion for post-trial relief that requested a new trial limited to the issue of damages. [Appellant]'s responsive brief acknowledges that Mr. Mader is entitled to a new trial on damages for past pain and suffering. But, it denies that [he] is entitled to a new trial on damages for future pain and suffering or for either past or future lost earnings. [The trial court] granted Mr. Mader's request for a new trial as to all damages submitted to the jury (i.e., past medical expenses, future medical expenses, past lost earnings, future

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lost earning capacity, past, present and future pain and suffering, embarrassment and humiliation, loss of enjoyment of life and disfigurement).

[Appellant] timely appealed from [the] order granting a new trial to the Superior Court of Pennsylvania. [Appellant] also timely filed a concise statement of errors complained of on appeal ... pursuant to Pennsylvania Rule of Appellate Procedure [ ] 1925(a)[.]

Trial Court Opinion, 7/5/18, at 1-5 (footnotes omitted).

On appeal, Appellant presents the following issues for review:

1. Did the [t]rial [c]ourt abuse its discretion when it granted [ ] Mader a new trial on past medical expenses where the jury awarded the amount that the parties stipulated was the correct amount and the [t]rial [c]ourt instructed them to award, and where Mader waived his right to seek a new trial on this issue?

2. Did the [t]rial [c]ourt abuse its discretion when it granted Mader a new trial on future medical expenses where the jury's award was consistent with medical opinions and cost projections offered by [Appellant], and where Mader waived his right to seek a new trial on this issue?

3. Did the [t]rial [c]ourt abuse its discretion when it granted Mader a new trial on past lost earnings and future earnings capacity where the jury was presented with evidence and expert testimony on those issues that supported its verdict?

4. Did the [t]rial [c]ourt abuse its discretion when it granted Mader a new trial on pain and suffering, embarrassment, humiliation, and loss of enjoyment of life after the date that his wounds healed, where the jury was presented with evidence and expert testimony on those issues that supported its verdict?

Appellant's Brief at 4-5.

At the outset, we note that "[t]he grant of a new trial is an effective instrumentality for seeking and achieving justice in those instances where the original trial, because of taint, unfairness or error, produces something other than a just and fair result, which, after all, is the primary goal of all legal proceedings." Harman ex rel. Harman v. Borah , 562 Pa. 455, 756 A.2d 1116, 1121 (2000) (quoting Dornon v. McCarthy , 412 Pa. 595, 195 A.2d 520, 522 (1963) ). When analyzing a trial court's grant of a new trial, we are mindful that:

"Trial courts have broad discretion to grant or deny a new trial ... [and,] 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." [ Harman ,] 756 A.2d [at] 1121-1122 [ ] (internal quotations and citations omitted). In addition, "[t]he trial court's decision whether to limit a new trial to a particular issue or grant a new trial as to all issues will not be reversed absent an abuse of discretion." Chiaverini v. Sewickley Valley Hosp. , [409 Pa.Super. 630], 598 A.2d 1021, 1024 (Pa. Super. 1991).

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