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Last week, while I was sitting in the Philadelphia courtroom of the Superior Court of Pennsylvania waiting to orally argue an appeal that one of my clients had taken, I observed the oral argument of a separate appeal in another case that perhaps heretofore had only been imagined in the minds of law school casebook writers.

In a nutshell, the plaintiff had filed a lawsuit claiming that the defendant’s negligence had caused the plaintiff to sustain a broken pinkie toe. And, according to the appellate judges’ questioning at oral argument, the plaintiff had introduced incontrovertible evidence that her pinkie toe had been broken in the event that had allegedly resulted from the defendant’s negligence. The plaintiff had an X-ray establishing, beyond any reasonable doubt, that her pinkie toe had been fractured.

For a plaintiff to prevail on a claim of negligence, she must establish by a preponderance of the evidence each of the elements of that claim. The first element is whether the defendant was negligent, which consists of establishing that the defendant owed a legal duty to the plaintiff that the defendant breached. The second element is whether the defendant’s negligence was a factual cause of the plaintiff’s injury. And the third and final element is damages.

Apparently, in the case of the broken pinkie toe, the defendant at trial devoted most of its effort in an attempt to establish that the defendant had not been negligent and that the defendant’s negligence, if any, was not a factual cause of the plaintiff’s injury. The amount of the plaintiff’s damages was also contested at trial, but apparently the defendant was not asserting that the plaintiff was entitled to no damages if in fact the defendant’s negligence was a factual cause of the plaintiff’s broken pinkie toe.

After hearing all the evidence and receiving instructions from the judge, the jury deliberated and then returned a verdict that contained findings on each of the three elements of the plaintiff’s negligence claim.

First, the jury found that the defendant was negligent. Second, the jury found that the defendant’s negligence was a factual cause of the plaintiff’s injury. But third and finally, the jury found that the plaintiff should recover zero dollars in damages.

Because a jury’s failure to award anything in damages constitutes the jury’s rejection of the plaintiff’s negligence claim, the trial court entered judgment in favor of the defendant.

From that result, the plaintiff had appealed to the Superior Court. Perhaps recognizing that a broken pinkie toe would not be the most pressing matter on that appellate court’s docket, counsel for the parties had wisely designated the case for oral argument on the so-called “expedited list” at just five minutes per side.

The issue that was obviously troubling the judges at oral argument was that the jury’s finding that the plaintiff had sustained zero dollars in damages was directly contrary to the undisputed evidence that the plaintiff had suffered a broken pinkie toe as a result of the defendant’s negligence.

Indeed, from what I could gather from observing the appellate oral argument, at trial the defendant had never argued that the plaintiff was entitled to nothing in damages even if the defendant’s negligence had caused the plaintiff to sustain a broken toe. Rather, the dispute concerning damages at trial was merely how much in damages the plaintiff deserved, but not even the defendant was contending that the plaintiff deserved zero dollars.

What should the appellate court do in these circumstances? Although the opposing parties did not have an actual stipulation that the plaintiff suffered some damages, functionally such a stipulation existed based on the evidence and the parties’ arguments.

It seemed to me that the Superior Court was leaning toward setting aside the trial court’s judgment in favor of the defendant and ordering a new trial, because the jury’s verdict finding zero dollars in damages could not be supported by any reasonable understanding of the evidence. And that, to me, seems to be the correct result.

One can imagine a similar scenario where a flatbed truck hauling metal rods is traveling on a highway when a single metal rod becomes dislodged, bouncing off the surface of the road up into the air, before hitting the windshield of an automobile that had been traveling behind the truck and striking the driver of that car in the head, killing her instantly.

During the trial of that case, the defendant trucking company may dispute whether it had negligently tethered the metal rods to the flatbed truck, and it may also argue over what amount of damages the plaintiff’s survivors are entitled to receive. But it would seem, on those facts, that no one could deny that the defendant’s negligence, if any, was the cause of the plaintiff’s death. Nor had the defendant’s lawyer even argued to the jury that the jury should conclude that the trucking company’s alleged negligence was not a factual cause of the plaintiff’s death.

But let’s assume that the jury, after hearing all of the evidence and the judge’s legal instructions, returns a finding that the defendant had been negligent but that the defendant’s negligence was not a cause in fact of the plaintiff’s death.

What should the appellate court do in those circumstances? As in the earlier case of the broken pinkie toe, presumably what the appellate court should do is overturn the jury’s verdict and order a new trial, because the jury’s finding that the defendant’s negligence was not a cause in fact of the plaintiff’s injuries garners absolutely no support from the trial court record nor was it even an argument that the defendant had advanced at trial.

Appellate courts are understandably reluctant to overturn jury verdicts. But just as a jury verdict in favor of the plaintiff can be overturned where absolutely no evidence of record exists in support of the jury’s findings, so can a jury verdict in favor of the defendant where it is absolutely contrary to any reasonable understanding of the record.

HOWARD J. BASHMAN operates an appellate litigation boutique in Willow Grove, Pa. and can be reached by telephone at 215-830-1458 and via email at [email protected] You can access his appellate Web log athttp://howappealing.law.com/.

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