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Each case is unique and depends on its own special circumstances. The court should consider, among others, certain factors in determining whether or not a particular verdict is excessive. These factors are: (1) the severity of the injury; (2) whether plaintiff's injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony of plaintiff; (3) whether the injury will affect plaintiff permanently, (4) whether plaintiff can continue with his or her employment, (5) the size of the out-of-pocket expenses; and (6) the amount plaintiff demanded in the original complaint.
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.
Are the damages awarded by the trial court excessive?
First, Tarasovich argues that the jury awarded the substantial verdicts based on the prejudice caused by David's improper reference to his mother's untimely death. The Court cannot agree. It was held in another portion of the decision that the judge's cautionary instruction precluded any possibility that the statement prejudiced the jurors when they determined that Tarasovich was liable to plaintiffs. That rationale applies here. It would be anomalous to hold at the same time that the statement did not have an effect on liability deliberations, yet did have an effect on the amount of damages. The jury was not prejudiced by the statement and we will not engage in further speculation.
Second, all of the claims included the intangible element of pain and suffering. The amount of pain and suffering damages, both past and future, is primarily a jury question. Indeed, a jury is entitled to award substantial damages for pain and suffering where the injuries are permanent and cause pain. The Supreme Court has recently reaffirmed its position that the jury and trial judge are peculiarly situated to view the witnesses and evaluate a proper award of emotional suffering damages. In Botek, the Court reversed the Pennsylvania Supreme Court’s determination that a remittitur should have been ordered in a case where plaintiff had clearly suffered emotional harm, but had no objective scientific evidence to confirm any emotional injury. Fundamental to the Supreme Court's holding in Botek is that each plaintiff is entitled to be compensated for pain and suffering attendant to physical harm, and an appellate court should only disturb the fact finder's decision in drastic circumstances. In this case, there is no need to go further than the nature of the harm suffered by the adolescent girls to find support for a substantial award of pain and suffering damages. Both Diane and Gloria Krysmalski suffered a leg amputation as a sole and direct consequence of Tarasovich's negligence. The pain resulting from having a limb sheared from one's body in an accident can hardly be quantified and need not be related to the amount of out-of-pocket expenses, as Tarasovich seems to intimate. Both girls testified that they suffer pain and difficulty walking with an artificial limb. Both girls are embarrassed by their condition and testified that their involvement in scholastic activities is limited. Indeed, the loss of a limb will affect these victims every day for the rest of their lives. The Court will not substitute our judgment for the jury's in this case.
Finally, the awards to the son and mother are equally beyond the Court’s question. A pain and suffering award award of $ 35,000 to a victim in such a traumatic accident is hardly substantial, let alone excessive. Likewise, a jury could reasonably conclude that a mother who contemporaneously witnesses her childrens' limbs being severed, manifests hysterical screaming and crying, and exhibits emotionally unstable behavior could reasonably be entitled to $ 100,000. There was no abuse of discretion in denying Tarasovich's motion for a remittitur or new trial.