Defense Digest

Plaintiff's Counsel's Closing Argument Analogy To A 'Drunk' Driving A Truck, Not Prejudicial To 'Funk'

The Pennsylvania Superior Court recently affirmed a trial court's decision to deny post trial motions filed by both the plaintiff and the defendants, which were filed as a result of a jury awarding the plaintiff compensatory damages and punitive damages against both defendants in a personal injury action stemming from a motor vehicle accident. In John Dillow v. Anne Myers, personal representative of the Estate of Edward John Myers, deceased, and Funk Water Quality Company, 2005 Pa. Dist. & Cnty. Dec. LEXIS 458, the plaintiff Dillow, who was in a parked truck on the shoulder of a road, was struck by a truck owned by defendant Funk Water Quality Company (hereinafter "Funk") and operated by Funk's employee, Edward John Myers. (Edward John Myers died of unrelated causes prior to trial.) Myers was sued as the result of his direct negligent conduct, and Funk was sued under a theory of vicarious liability as Myers' employer. John Dillow recovered both compensatory damages of $271,000 against both defendants, as well as punitive damages of $155,000 against Funk and $100 against Myers after liability was admitted in this negligence lawsuit.

In Pennsylvania, an employer is responsible for tortuous misconduct by an employee who causes harm to a third party, so long as the employee's misconduct occurred in the course of and within the scope of his employment. Costa v. Roxborough Mem'l Hospital, 708 A.2d 490, 493 (Pa. Super. 1998).

Essentially, the accident was caused because the loading racks on the driver's side of the truck were either missing or broken, requiring the heavy cargo to be placed exclusively on racks on the passenger side of the truck. The truck was so overloaded that Myers had to pull the wheel to the left just to stay straight in the right lane. Further, a witness testified that Myers was accelerating going down hills, so he would be in excess of the speed limit, and traveling at approximately 65-70 mph. Further, Myers would often change lanes without signaling and ultimately swerved onto the shoulder of the road, hitting the truck that Dillow was occupying.

After the jury award, both defendants Funk and Myers and the plaintiff filed motions for post trial relief. Funk's motion questioned an award of punitive damages against it that was greater than that against its employee. The trial court held that the evidence indicated that the employee's conduct was reckless as the load on his truck was placed exclusively on the passenger side because the loading racks on the driver's side were broken. Although punitive damages against Funk were vicariously imposed, the court held that the jury had the discretion to consider various factors, including the employer's knowledge regarding the broken loading racks, in determining the amount of punitive damages awarded against each defendant. In addition to denying Funk's motion, the trial court also denied the post trial motions of Dillow and Myers.

On appeal, the defendants claimed that: (a) a mistrial should have been granted because plaintiff's attorney made prejudicial remarks in his closing argument; (b) there was no evidence of outrageous conduct to justify punitive damages; (c) since punitive damages were only listed at $100 against the Estate of Myers, the larger punitive damages could not lie against defendant Funk; and (d) the verdict and delay damages should be reduced because the defendants paid the workers' compensation carrier for any potential lien.

The alleged prejudicial comments occurred during the closing argument by Dillow's attorney. It should be noted that during closing argument, defendants' counsel argued that the loading and tilting of the defendants' truck did not create an unsafe or unreasonably dangerous condition because the truck had previously been loaded in this same manner and had been operated without mishap. In response, plaintiff's counsel asserted that the defendants' logic, that being, "we did it numerous times before without incident, therefore, it can't be reckless," was flawed, and he compared the argument to that made by an intoxicated driver involved in a motor vehicle accident who claims his driving was not impaired as evidenced by previous occasions when he had driven in the same condition without incident.

The inflammatory comments occurred when plaintiff's counsel attempted to qualify the reckless conduct exhibited by Myers when he stated:

The Pennsylvania Superior Court held that "counsel merely used the drunk driver reference as an analogy in explaining why it was non-sensical to claim that Myers' conduct was not outrageous simply because he had driven the same improperly loaded truck in the past without incident. While counsel may have been able to use a more suitable example to get his point across, the jury was not misled or confused into believing that counsel was claiming Myers was actually drunk when he drove the truck and caused the accident with Dillow." It is well settled that not every intemperate remark by an attorney requires a mistrial. Commonwealth v. Stantz, 353 Pa. Super. 95, 509 A.2d 351 (Pa. Super. 1986).

Because the comments made by counsel were properly tempered by the court's instructions and counsel's clarification and did not mislead or confuse the jury, they did not deprive the defendants of a fair court. Thus, this claim was meritless.

In addressing the defendant's claim that there is no evidence of outrageous conduct, the court found no abusive discretion on the part of the jury where Myers' conduct was outrageous considering the way he loaded and drove the truck and as to Funk where Myers was working as an employee at the time of the accident. Moreover, it was completely proper for the jury to assess punitives at a higher amount for Funk based upon its financial status. There is no rule that an employer's punitive damages must be limited or proportionate to those caused by its employee when fault is premised upon the theory of vicarious liability. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (Pa. 1991).

Lastly, the defendants argue that the plaintiff's recovery in delay damages should be reduced because they paid any potential lien to the workers' compensation carrier. The court held that a workers' compensation lien is between the worker and his carrier. A defendant in a civil case cannot essentially deprive plaintiff's counsel of his fee for his services by prepaying the lien. In fact, had the money been accepted by the carrier, it is possible that this would have been a windfall to the plaintiff because of the defendant's improper unilateral action. However, in this case, there is no evidence of record that the carrier accepted Funk's tender, so this argument fails for that reason as well.

The judgment of the trial court was affirmed.

* Dave is an associate in our Philadelphia, Pennsylvania, office and works in the Casualty Department. His direct telephone number is (215) 575-2754 and his e-mail address is dpczap@mdwcg.com.