The Superior Court recently remanded Simon & Simon’s limited tort case Li Jin Lu vs. Kenney for a new trial on the issue of damages, after a Philadelphia Judge incorrectly instructed the jury that in order to recover non-economic damages, the Plaintiff’s injuries must be “grave.” On appeal, the Superior Court determined that the trial court erred by defining “serious” as it did, and further stated that this erroneous instruction alone may have controlled the jury’s decision.
The underlying motor vehicle collision took place on Girard Avenue, when a vehicle driven by Plaintiff, Li Jin Lu, who was subject to the limited tort threshold, was struck by the Defendant, Levis Kenney who was attempting to exit a parking lot. After Simon & Simon attorney Andrew Baron tried the case, during jury deliberations, the Jury determined that Plaintiff and Defendant were each 50% negligent for the accident, and found that said negligence was the factual cause of Plaintiff’s injuries.
However, the jury determined that Plaintiff’s injuries did not constitute a serious impairment of a body function, and thus did not award damages.
In his appeal to the Superior Court, Plaintiff argued that by telling the jury that Plaintiff’s injuries had to be “grave” in order for him to recover, the trial Judge misstated the applicable law, and misled the jury by improperly elevating the limited tort threshold. Importantly, during a charging conference with the trial judge, both parties to the suit had specifically requested that the trial court utilize Pennsylvania Suggested Standard Jury Instruction – Civil 7.190, in order to inform the jury of the law concerning limited tort and serious impairment. This instruction provides in part as follows:
In determining whether the impairment of a body function was serious, you should consider factors such as the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.
The terms “serious,” “impairment,” and “body function” have no special or technical meaning in the law and should be considered by you [the jury] in the ordinary sense of their common usage.
See Pennsylvania Suggested Standard Jury Instruction – Civil 7.190.
Here, the trial Judge did not instruct the jury in accordance with the agreed upon standard instruction, and the applicable law. Rather than allowing the jury to determine the meaning and definition of “serious” for itself, the court instead attempted to define the term “serious” for the jury. As illustrated in the standard jury charge above, it is within the sole purview of the jury to define these terms, without assistance from the trial judge. See also Washington v. Baxter, 719 A.2s733 (Pa. 1998).
Upon review and consideration of this case, the Superior Court agreed, and Ordered a new trial limited to the issue of damages. A new trial was deemed necessary since the instruction as given by the trial court in this case had “a tendency to mislead or confuse rather than clarify a material issue.” Gorman v. Costello, 929 A.2d 1208, 1212 (Pa. Super. 2007). In its Opinion, the Superior Court reasoned that in this case, the trial court’s instructions “took the jury’s focus away” from the factors it must consider in determining whether a Plaintiff has suffered a serious impairment of a body function, and “misled the jury into believing that only a grave injury constitutes a serious injury.” The Court further opined that “While it is true that a grave injury would be a serious injury, an injury need not be grave to be serious.”
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