Krysmalski by Krysmalski v. Tarasovich

Page 298

622 A.2d 298

424 Pa.Super. 121

Gloria Jean KRYSMALSKI, A Minor by her Parent and Natural

Guardian, Eugene KRYSMALSKI, and Eugene Krysmalski, in his

own right, and Eugene Krysmalski, Administrator of the Estate of Shirley Krysmalski, deceased v. Albert TARASOVICH, An Individual, and Grant Bar, Inc., A

Corporation, and Paul J. Karanzas, Individually

and t/d/b/a Parkview Cafe.

Appeal of Albert TARASOVICH (at 13).

Diane Marie KRYSMALSKI, A Minor by her Parent and Natural

Guardian, Eugene Krysmalski, and Eugene Krysmalski, in his

own right, and Eugene Krysmalski, Administrator of the Estate of Shirley Krysmalski, deceased v. Albert TARASOVICH, an Individual, and Grant Bar, Inc., A

Corporation, and Paul J. Karanzas, Individually

and t/d/b/a Parkview Cafe.

Appeal of Albert TARASOVICH (at 14).

David S. KRYSMALSKI, A Minor by his Parent and Natural

Guardian, Eugene Krysmalski, and Eugene Krysmalski, in his

own right, and Eugene Krysmalski, Administrator of the Estate of Shirley Krysmalski, Deceased v. Albert TARASOVICH, An Individual, and Grant Bar, Inc., A

Corporation, and Paul J. Karanzas, Individually

and t/d/b/a Parkview Cafe.

Appeal of Albert TARASOVICH (at 15).

Superior Court of Pennsylvania.

Argued Dec. 4, 1992.

Filed March 1, 1993.

William R. Haushalter, Pittsburgh, for appellant.

Edward J. Balzarini, Pittsburgh, for appellees.

Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

OLSZEWSKI, Judge:

This is an appeal from judgments entered against defendant Albert Tarasovich ("Tarasovich"). After a trial before the Honorable Patrick J. McFalls, a jury found Tarasovich liable for plaintiffs' personal injuries. We affirm. ¹ On July 23, 1986, the three minor plaintiffs, Gloria, Diane and David Krysmalski, were waiting for their mother in the parking lot of a Giant Eagle supermarket near Pittsburgh while she was shopping. At the same time, Tarasovich was driving his vehicle in the parking lot, waiting to pick up a female friend who was shopping. Tarasovich was driving his car in what can only be described as a life-threatening and reckless manner: he was parked in the lot, started his car, backed into a vehicle forcing it into another, accelerated forward, hit several more cars, and finally crashed through a concrete barrier at the entrance of the store, striking the children.

Both Gloria and Diane suffered severe lacerations to their legs which required amputation of one leg from each of the girls. David suffered a laceration on his chin. Upon hearing a commotion, the children's mother, Shirley, ran to the scene, only to see her children horribly injured in the accident. The Krysmalskis brought a negligence action against Tarasovich. The jury awarded compensatory damages to the minor children in the amount of $7,000,000 to Diane, $5,000,000 to Gloria, and $35,000 to David. Shirley's estate (Shirley passed away before trial) was awarded $100,000 for a claim of negligent infliction of emotional distress. The trial court also awarded delay damages to the plaintiffs pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure.

Tarasovich raises four issues for our consideration: (I) whether the trial court should have granted a new trial based on Tarasovich's allegation that there was insufficient proof of Shirley's claim of negligent infliction of emotional distress; (II) whether the trial court should have awarded a new trial based on an allegedly prejudicial statement made by David Krysmalski during his testimony; (III) whether the trial court properly awarded delay damages against Tarasovich; and (IV) whether the trial court should have entered a remittitur or granted a new trial based on the excessiveness of the verdicts. We address each issue in turn.

Initially, we note that Tarasovich's post-trial motions regarding the Estate's claim for emotional distress damages aver that the Krysmalskis presented insufficient evidence in support of the emotional distress claim, such that the verdict was against the law. The appropriate remedy for such an argument, if successful, is judgment notwithstanding the verdict ("J.N.O.V."). See Erkens v. Tredennick, 353 Pa.Super. 236, 509 A.2d 424 (1986) (judgment N.O.V. may be entered only where no two reasonable persons could disagree that the verdict was improper). Nevertheless, Tarasovich's post-trial motions request a new trial.

Unlike a judgment not withstanding the verdict, a motion for a new trial does not test the verdict itself but the proceedings resulting in the verdict. The basis of the new trial is not that the judgment is unsupported by sufficient evidence, but that an alleged trial error affected the verdict.

Waddle v. Nelkin, 511 Pa. 641, 648, 515 A.2d 909, 913 (1986); Dorn v. Stanhope Steel, 368 Pa.Super. 557, 580, 534 A.2d 798, 810 (1987). "The decision whether to grant a new trial is within the discretion of the trial court, and that court's decision will be overturned on review only if ... the court acted capriciously or palpably abused its discretion." Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985); Houseknecht v. Walters, 404 Pa.Super. 85, 590 A.2d 20 (1991). To determine whether a trial court's decision amounted to a palpable abuse of discretion, we must "examine the record and assess the weight of the evidence; not however, as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury." Thompson at 600, 493 A.2d at 673 (citations omitted). Where the record adequately supports the trial court, it has acted within the limits of its judicial discretion. Id. We find no basis for awarding a new trial in this case.

I.

Tarasovich's first allegation of error is that the trial court erred by allowing the Estate of Shirley Krysmalski (hereinafter "Estate") to recover damages for negligent infliction of emotional distress. This argument has three prongs:

(a) Since Shirley Krysmalski failed to suffer physical harm in conjunction with her emotional distress claim, the Estate's negligent infliction claim must fail as a matter of law;

(b) the estate's negligent infliction of emotional distress claim fails as a matter of law because the Estate did not introduce medical evidence to substantiate the claim;

(c) Shirley Krysmalski did not witness the accident and did not become aware of it until after the fact, therefore the Estate failed to establish the sensory and contemporaneous observance necessary to establish a negligent infliction claim.

We find no merit to Tarasovich's arguments and affirm the award of damages to the Estate for negligent infliction of emotional distress.

Tarasovich's first argument is that the trial court erred by allowing the Estate to recover damages for negligently inflicted emotional distress. We interpret Tarasovich's first argument to be an allegation that this claim should not have been submitted to the jury and that the trial court erred by permitting it to so proceed. The most expeditious manner of addressing the claims presented under Tarasovich's first argument is to consider them out of the order set forth above. We will address I(c) first, then I(a), and finally I(b).

The third prong of Tarasovich's first argument is that Shirley Krysmalski failed to actually witness the injuries her children sustained in the accident, and that the negligent infliction claim therefore fails. We disagree. This accident occurred at the entrance to the grocery store. (N.T. 3/27/89, at 120, 121, 131.) The children were waiting outside of the store at the entrance for their mother, who was situated just inside the store facing the lot in the check-out line. (N.T. 3/27/89, at 446, 474, 483.) The lot was visible from inside the store. (N.T., 3/37/89, at 120.) Moreover, the jury was presented with evidence that Shirley Krysmalski did witness the injuries to her children. Officer Salvatore Crisanti, a security officer on duty at the time of the accident, testified that:

A: Well, when I seen the children laying on the ground and I had run right over to them, Then I could hear [Mrs. Krysmalski] start to scream in, like, the background there. And I looked up, and I saw Mrs. Krysmalski, and she had been standing there screaming. I guess, in a hysterical-type of state.

Q: Did you speak to her at any time at the scene that night?

A: No, I didn't.

Q: And how long did you observe her at the scene?

A: I know she was there. I was so busy with ... children ... that I didn't keep track of her.

Q: Do you know how she left the scene?

A No, I don't recall.

Q: So the time that you are observing her at the scene is while she was screaming hysterically?

A: She was quite upset during the interim period that the children where--from the time that they had been hit to the point where on their way to the hospital. And she probably did go with them at that point.

Notes of Testimony [N.T.], 3/27/89, at 124-125.

Nonetheless, Tarasovich finds grounds for a new trial in the fact that David Krysmalski testified that his mother was in the store at the time of the accident. (N.T., 3/27/89, at 486.) Conflicting testimony, however, is not cause for a new trial. Baldino v. Castagna, 505 Pa. 239, 249, 478 A.2d 807, 812 (1984) ("[w]e have consistently held that a new trial should not be granted on a mere conflict in the testimony"). The jury reasonably found, on the basis of the testimony summarized above, that Mrs. Krysmalski was on the scene at the time of the collision. We will not disturb that finding. Moreover, this case is dissimilar from the cases cited by Tarasovich in support of his argument. The authority cited by Tarasovich involved family members who happened upon the scene of an accident involving a family member minutes later or were notified of the accident by...