Friday, January 25, 2019

Zero Verdict in Dog Bite Case Upheld on Appeal (Non-Precedential)

In a non-precedential decision issued by the Pennsylvania Superior Court in the case of Anthony v. Rizzo, No. 1067 M.D.A. 2017 (Pa. Super. April 3, 2018 Bowes, J., Murray, J., and Blatt, J.) (Non-precedential Op. by Murray, J.), the Pennsylvania Superior Court affirmed the trial court decision by the Honorable Lesa S. Gelb following an appeal from the judgement entered in favor of the Defendants after a jury awarded the Plaintiff $0 damages in this negligence cause of action arising out of an alleged dog bite by a poodle.  

According to the Opinion, the Plaintiff was employed as a house cleaner for the Defendants.   The Plaintiff had walked up to the Defendant’s car in which a poodle was located, unrestrained and in the rear seat with the windows opened.  As the Plaintiff approached the car, the dog “came into contact” with the Plaintiff’s right forearm. 

 The Opinion indicates that the Plaintiff was treated for what was described as a dog bite which involve an avulsion, or tearing of the skin, on the Plaintiff’s right forearm. The Plaintiff treated with her family doctor who cleaned the area, applied steri-strips, prescribed antibiotics, and administered a tetanus shot.    The Plaintiff had a follow-up visit with the family doctor one (1) month later at which point the Plaintiff's injury was noted to appear to be healing. The Plaintiff was not referred to any plastic surgeon to discuss any scarring-related issues.

As reflected on the verdict slip, the jury found that the Defendants were negligent and that the negligence of the Defendant was a factual cause of the Plaintiff’s harm.   However, the jury also attributed 50% of the causal negligence to the Plaintiff.  As for damages, the jury wrote down $0 on the verdict slip.  

The Plaintiff raised two (2) issues on appeal, first the Plaintiff asserted that the trial court committed an error in denying the Plaintiff’s Motion to Preclude a Verdict Slip Question and Jury Instruction on factual cause when it was not disputed that the Plaintiff had suffered some injury as a result of the accident.

The Plaintiff’s second issue was whether the trial court committed an error of law in denying the Plaintiff’s Motion for a new trial on damages since the jury’s verdict was so contrary to the evidence that it shocked one’s sense of justice.  

As to the first issue, the Superior Court stated that its review of the trial court’s jury instruction on factual cause revealed that that instruction was nearly identical to the Pennsylvania Standard Jury Instruction.   As such, the Superior Court found that the trial court provided an adequate instruction for factual cause to sufficiently guide the jury in its deliberation.   The Superior Court also noted that, even if an error had occurred in this regard, such error would be harmless because the jury found that the Defendant’s negligence was indeed a factual cause of the Plaintiff's harm in any event.  

 The appellate court also rejected the Plaintiff’s contention that the jury’s verdict was against the weight of the evidence.   Given that the appellate court agreed that the Plaintiff did not offer sufficient evidence in support of a claim for “compensable” pain, there was no need to overturn the decision below.   This was particularly so in this case where the Plaintiff had not presented any expert medical testimony about her alleged pain and suffering and where the Defendants asserted that the Plaintiff had suffered a mere scratch that represented a minor injury.  

As such, the Plaintiff’s appeal was denied and Judge Gelb’s decision below was affirmed by the Pennsylvania Superior Court. 

Anyone wishing to review this non-precedential decision by the Pennsylvania Superior Court, may click this LINK.

The trial court decision in this matter by Judge Lesa Gelb of the Luzerne County Court of Common Pleas may be viewed at this LINK.

I send thanks to Attorney Stephen T. Kopko of my office for bringing this decision to my attention. 

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