Waiver for Failure to Object to Jury Verdict Before Jury Retires; Inconsistency Versus Weight of Evidence
Background:
Stapas filed negligence claims against Giant Eagle seeking damages for injuries sustained when Stapas was shot multiple times during an altercation with another patron outside of a GetGo convenience store owned by Giant Eagle. At the time of the incident, Stapas was 17-years old and employed as a busboy.
The trial court described the consequences of Stapas injuries:
Stapas returned to work . . .about two weeks after he was released from the hospital, missing a total of six (6) weeks of work. He continued to work various jobs and eventually attended a class on working in the natural gas industry and is now employed by Patterson-Drilling UTI.
Stapas has scarring from the bullets themselves, and from the surgical procedures necessary to remove the bullets. Stapas also experiences daily stomach pain which is aggravated at his job and when doing strenuous activity. Stapas is regularly concerned about losing his job if he is unable to push through the pain.
After a five-day jury trial before the Allegheny Court of Common Pleas, the jury returned a verdict finding Giant Eagle 73% negligent and Stapas 27% negligent and awarded Stapas damages totaling $2,086,000. While the jury verdict form required the jury to only list the total amount of damages awarded, the jury included the breakdown of the damage award for scarring, wage loss, past and future medical expenses, past and future pain and suffering, and loss of life’s pleasures.
The trial court entered a verdict in favor of Stapas and against Giant Eagle in the amount of $1,522,780 in accordance with the percentage of fault directed by the jury. Stapas filed a petition for delay damages pursuant to Pa.R.C.P. 238 and an order was entered adding delay damages in the amount of $279,795.17 to the verdict, for a total award in favor of Stapas in the amount of $1,802,575.17.
Giant Eagle’s post-trial motions were deemed denied, Stapas entered judgment, and Giant Eagle appealed. The trial judge’s Pa. R.A.P. 1925 opinion found that Giant Eagle’s complaint about the jury’s award for lost wages was waived because the case was submitted to the jury for a general verdict, and Giant Eagle failed to raise objections to particular components of the jury’s award before the jury retired. As the trial court explained:
[T]his case was submitted to the jury for a general verdict. The jury verdict slip was drafted by and agreed to by counsel for all parties, including counsel for Giant Eagle. The verdict sheet jointly submitted by the parties was given to the jury without objection by any party’s counsel, including counsel for Giant Eagle. The jury returned a general verdict in favor of Stapas and against Giant Eagle in the amount of $2,086,000, which was later molded by this [c]ourt pursuant to the percentage apportionment of fault directed by the jury. Since Giant Eagle agreed to submit this case to a jury for a general verdict, it cannot itemize and attack certain components of the jury’s award.
[I]n attacking the jury’s award, Giant Eagle relies on handwritten notations in the margin of the jury slip as a basis for arguing that certain components of the damage award were inappropriate. By failing to raise this objection before the jury panel was dismissed, however, Giant Eagle waived the issue. See Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868, 871 (Pa. 1994).
When the jury returned its verdict, counsel for Giant Eagle did not assert that the jury’s damage award was improper, did not request the jury be sent back for further deliberations on the issue, and made no objection of any kind to the verdict. Giant Eagle instead polled the jury and the jury was dismissed. If counsel for Giant Eagle had raised an objection at the time the jury slip was read, this [c]ourt could have asked the jury to clarify its verdict, including its handwritten notations in the margin. Since the jury was dismissed without inquiry, this [c]ourt cannot speculate as to what the jury intended, and this [c]ourt would have accepted the total damage award as a general verdict in favor of Stapas. The jury’s verdict … bears a reasonable relation to Stapas’ proven damages. Stapas was fully compensated for his past medical expenses and lost wages, and for past and future pain and suffering as well as scarring and loss of life’s pleasures. As such, the jury award should stand.
Superior Court disagreed, concluding the jury’s verdict was a general verdict with special findings. As the court explained, “in the usual case where special findings are consistent with the general verdict, the special findings are considered merely advisory.” Noting the Pennsylvania Supreme Court’s decision in Picca v. Kriner, 645 A.2d 868 (Pa. 1994), the Superior Court acknowledged that “a plaintiff who fails to object to an ambiguous or flawed jury verdict before the jury is dismissed waives the right to challenge the verdict in post-trial motions.” However, quoting Criswell v. King, 834 A.2d 505 (Pa. 2003), the court distinguished claims of verdict inconsistency from claims in evidentiary weight:
a claim of verdict inconsistency is not the same complaint as a claim sounding in evidentiary weight. A verdict may be perfectly consistent and yet be a shock to the losing party, as well as a shock to the conscience of the jurist who oversaw the presentation of evidence. Verdict-related claims arising from perceived evidentiary weight cannot be addressed and averted by resubmission to the same jury. Since the complaint cannot be redressed by the jury, there is no reason, under the principles animating [Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (Pa. 1974)] and its progeny, to require an objection before the jury is discharged. Nor should a party be forced to litigate a claim of verdict inconsistency when in fact its true complaint sounds in evidentiary weight.
Therefore, the court concluded, because Giant Eagle was challenging the evidentiary weight of the jury’s verdict, not the consistency of the verdict, Giant Eagle properly preserved its right to seek a new trial by filing a timely post-trial motion contending the verdict was against the weight of the evidence and shocked one’s sense of justice. Further, under these circumstances where the special findings were not consistent with the jury verdict, the Superior Court concluded that the verdict was against the weight of the evidence and that the trial court abused its discretion by not granting Giant Eagle a new trial.
Based on its review of the entire case, the Superior Court went on to hold that liability was “fairly determined”, that the “issue of damages here is not intertwined with the issue of liability,”that Giant Eagle “had a fair opportunity to litigate the issues of negligence and contributory negligence,” and that Giant Eagle was therefore entitled to a new trial limited to damages. Superior Court vacated the trial court’s judgment and remanded for a new trial limited to the issue of damages.
The Supreme Court granted allocatur to determine the following issues presented by the petitioner:
1. Does the Superior Court’s decision to reverse the trial court’s finding of waiver, despite Giant Eagle’s failure to object to flawed jury instructions, flawed verdict slip and/or the problematic verdict, all of which contributed to the error complained of on appeal, conflict with this Court’s holding in Straub v. Cherne Indus., 583 Pa. 608, 880 A.2d 561 (2005), a case not considered by the Superior Court?
2. Does the Superior Court’s decision to excuse Giant Eagle’s failures to object to flawed jury instructions, flawed verdict slip and/or a problematic verdict, merely because the appeal is styled as a “challenge to the weight of the evidence,” conflict with the timely objection requirement of Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974)?
For more information, contact Kevin McKeon or Dennis Whitaker.