HARRISBURG – The Superior Court of Pennsylvania recently indicated it would look to uphold a $19 million jury verdict in favor of a quadriplegic man who sustained his injuries in the pool of the defendant homeowners, with the case only being remanded to the trial court for further proceedings as to an error of evidence consideration.
On Oct. 6, Superior Court judges Mary P. Murray, Maria McLaughlin and Dan Pellegrini issued such an opinion in plaintiff Michael G. Fraser’s case against Robert G. O’Black and Laura M. O’Black, vacating the initial judgment and remanding the case to the Westmoreland County Court of Common Pleas.
McLaughlin authored the Court’s opinion in this matter.
“Fraser, a 21-year-old, attended a pool party at the O’Blacks’ home in July of 2013. A round, inflatable raft was in the pool, one which the O’Blacks had purchased to be towed behind a boat. The raft was marked with a warning that stated, ‘Never allow diving onto this product.’ The O’Blacks had placed a cover on the raft that concealed the warning label. They did not warn Fraser not to dive or jump onto the raft,” McLaughlin stated.
“Fraser either dived or jumped from the diving board. He hit the raft and was propelled toward the shallow end of the pool. His head struck the cement and he suffered injuries that rendered him a quadriplegic. Fraser cannot recall the accident and does not know whether he dived head-first or jumped feet-first from the diving board, and whether he intended to hit the raft. Eyewitness accounts of the accident were somewhat inconsistent.”
Fraser filed a lawsuit in the Westmoreland County Court of Common Pleas claiming that the O’Blacks were negligent for permitting the raft to be placed in their pool and failing to warn him not to jump or dive onto it.
After the case proceeded to trial, the jury found the O’Blacks 70% liable and Fraser 30% liable. It awarded damages of $19 million, including $9 million for future medical expenses, $3 million for pain and suffering, $3 million for embarrassment and humiliation, $3 million for loss of enjoyment of life and $1 million for disfigurement. However, the trial court molded the verdict, pursuant to the finding of comparative negligence, to $13,300,000.
The O’Blacks filed post-trial motions which were ultimately unsuccessful, and the trial court entered a final judgment against them of $17,636,264.54, leading them to appeal to the Superior Court on multiple grounds:
• Whether judgment notwithstanding the verdict or a new trial is required because [Fraser] was required to prove both that [the O’Blacks] knew or should have known that the raft was a dangerous condition, and that [Fraser] did not know or have reason to know of the danger, but [Fraser] proved neither;
• Whether judgment notwithstanding the verdict or a new trial is required because [Fraser] failed to establish that [the O’Blacks’] alleged failure to warn him not to dive or jump on the raft caused his harm;
• Whether a new trial is required because [Fraser] repeatedly introduced improper, self-serving, and highly prejudicial hearsay rumors suggesting that he was not responsible for the accident;
• Whether a new trial or remittitur is required because the jury’s $9 million award for future medical expenses impermissibly exceeded the ‘total’ for such expenses projected by [Fraser’s] economic expert;
“The O’Blacks first argue that the trial court should have granted their post-trial motion for judgment notwithstanding the verdict (JNOV) because Fraser failed to prove that they owed him a duty. They maintain this is so because Fraser did not show that they knew, or should have known, that the raft involved an unreasonable risk. They also argue that Fraser failed to prove that he did not know of the risk involved because the risk posed by diving or jumping onto a raft is obvious or recognizable to a reasonable person. They further claim the jury’s finding that Fraser was contributorily negligent established that he understood the risk. We find the O’Blacks waived the issue of whether they owed a duty to Fraser. They agreed that the court could not hear their motion for nonsuit. As the O’Blacks acquiesced to this ruling, they cannot complain of it on appeal,” McLaughlin said.
“Even if they had not committed waiver, we would find the motion for nonsuit only preserved the issue of whether there was sufficient evidence that the raft involved an unreasonable risk and the O’Blacks’ had knowledge thereof. The O’Blacks did not attempt to argue in their motion for nonsuit that there was insufficient evidence that, if the raft constituted an unreasonably dangerous condition, Fraser knew or should have known of the risk because it was obvious to a reasonable person or because Fraser had personal knowledge of the risk of danger. We would further find the argument the O’Blacks did make meritless. Fraser presented sufficient evidence that the raft involved an unreasonable risk and the O’Blacks knew or should have known it. Fraser presented an expert on ‘product safety and evaluation of written warnings. The expert testified that, although the label warned against ‘diving’ onto the raft, a term that referred broadly to the act of plunging into the water, including ‘jumping.’ He stated that if one either dived or jumped on the raft, ‘whatever posture you assume, there’s a good chance you’re going to bounce off.”
McLaughlin explained that testimony was “sufficient for the jury to find that the raft posed an unreasonable risk to anyone who might either dive or jump onto it, and that the O’Blacks were aware of the risk” and that “the jury was entitled to make this factual finding and disregard any evidence to the contrary.”
McLaughlin added that the issue of JNOV was meritless and a non-starter.
“The trial court denied JNOV because it found that Fraser was not required to prove that he would have changed his behavior pursuant to a warning. The court noted this standard is only imposed in products liability cases, rather than in a negligence case against a possessor of land. We agree. In a products liability case based on a claim of inadequate or lack of warning, the plaintiff must prove ‘that the user of the product would have avoided the risk had he or she been warned of it,” McLaughlin said.
“We decline to extend this requirement to premises liability, which only requires proof that the dangerous condition the possessor failed to rectify or warn the licensee of caused the licensee’s injuries. Moreover, a licensee need not establish whether he encountered the dangerous condition accidentally or with intention. Instead, liability of the possessor turns on whether the licensee ‘did not know or have reason to know of the condition and the risk involved.”
One argument the O’Blacks pled successfully, according to the Superior Court, was its desire for further consideration given to the weight of the evidence provided in the case, at the trial court level.
“The O’Blacks argue the court erred in denying their motion for a new trial because the verdict was against the weight of the evidence about whether they owed a duty to Fraser regarding the raft. They argue there was ‘overwhelming evidence that [they] lacked the knowledge required for them to warn of a danger.’ They alternatively argue the evidence established that Fraser knew of the risk, because the expert testimony conclusively established that the danger posed by the raft was obvious. The trial court denied the motion for a new trial because the O’Blacks ‘failed to raise the issue of an alleged lack of duty on the part of the [O’Blacks] at any point during the trial.’ The O’Blacks argue that they did not waive their weight [of the evidence] challenge because such a claim need not be raised until the completion of trial,” McLaughlin said.
“We agree with the O’Blacks that they have not waived this issue. They argued these points at trial, and a challenge to the weight of the evidence may be raised for the first time in a timely post-verdict motion. However, unlike a challenge to the sufficiency of the evidence, we review a challenge to the weight of the evidence for an abuse of discretion on the part of the trial judge, who must pass on the weight claim in the first instance. Here, as the trial court erroneously found waiver, it did not consider whether the verdict against the O’Blacks was contrary to the weight of the evidence regarding whether the O’Blacks had a duty to Fraser regarding the raft. We will therefore remand for the trial court to consider this issue in the first instance.”
The O’Blacks further argued that the trial court erred in denying their post-verdict motion for a new trial or a remittitur, because they claim the evidence did not support the jury’s award of $9 million in future medical expenses.
“They assert that Fraser’s life care planning expert, Versha Desai, R.N., testified that Fraser’s total future medical costs would be between $7.8 and $8.1 million, as stated in her most recent life care plan. They note that Nurse Desai authored two other life care plans that were submitted to the jury, one of which projected future costs as exceeding $9 million. However, the O’Blacks add, she testified that that estimate had not included information she later received from Fraser’s treating physician, Dr. John A. Horton, M.D, lowering Fraser’s life expectancy,” McLaughlin said.
“The O’Blacks assert that the jury should not have been permitted to speculate regarding the amount of economic damages and should have been restricted to awarding future medical expenses based on Nurse Desai’s final report. They also point out Fraser argued to the jury that they should base his future medical expenses on Dr. Horton’s projection of his life expectancy.”
The trial court also found the jury could have “properly considered Nurse Desai’s testimony that there might be future medical expenses that were not contemplated in her life care plans, as well as Dr. Horton’s testimony that Fraser’s life expectancy might be improved by medical advances.”
The trial court concluded, “Because the jury was provided with a significant amount of evidence regarding [Fraser’s] future medical expenses, including but not limited to Nurse Desai’s life care plans, the jury’s verdict was not unreasonable under the law.”
“We discern no abuse of discretion. Nurse Desai explained how she reached her projections for Fraser’s medical care, which depended on several variables, such as Fraser’s life expectancy. The jury was free to believe all, part, or none of the evidence substantiating these variables, including Dr. Horton’s projection of Fraser’s life expectancy. The jury’s award bore a reasonable relationship to Nurse Desai’s calculations. We therefore may not disturb it. Judgment vacated. Case remanded with instructions. Jurisdiction relinquished,” McLaughlin said.
Superior Court of Pennsylvania case 1200 WDA 2022
Westmoreland County Court of Common Pleas case 15-CI-03034
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com