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Trial Practice is Real (PA)

March 12, 2020

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<p style="text-align: justify;">A recent case in Pennsylvania illustrates the importance of preserving objections at various points during trial.  The case <em><a href="">Dempsey v. Josiassen et al.</a></em> illustrates objections related to the jury verdict sheet and jury instructions once a case has concluded. In this personal injury case, plaintiff Dempsey was a passenger in a car driven by defendant Osbourne. As Osbourne was slowly driving down a street in Philadelphia, defendant Josiassen opened his car door. Osbourne was unable to avoid a collision with the door. Dempsey sued both defendants for negligence claiming various bodily injuries.</p>
<p style="text-align: justify;">At trial, both vehicle operators presented evidence of their reasonable behavior under the circumstances, including facts such as the host driver stating he was driving 10-15 miles per hour and traffic conditions prevented his accident avoidance.  The stationary operator testified that he parked close to the curb and checked his surroundings before opening the door. Plaintiff testified that she was unaware of anything her driver did to cause the accident.  The defendants also presented evidence of the passenger's preexisting injuries.</p>
<p style="text-align: justify;">Prior to deliberations, the trial court instructed jurors to decide and submit by special interrogatories whether Osbourne and/or Josiassen were negligent.  The jury was not instructed that one or the other must be found negligent.  Moreover, the jury was instructed that Dempsey could not recover if neither defendant was negligent. Inevitably, the jury found that Osbourne and Josiassen were not negligent and the case was dismissed.</p>
<p style="text-align: justify;">Plaintiff's counsel filed a timely post-trial motion asserting that Josiassen was negligent as a matter of law and that the jury’s verdict was against the weight of the evidence.  That motion, which lacked any substantive weight of the evidence argument, was denied because the record reflected that Dempsey did not object to the verdict until after the jury was dismissed.  Stated another way, plaintiff failed to object to the jury instructions and verdict sheet prior to the conclusion of the case. The Superior Court ultimately found that Dempsey had waived her right to object to the verdict and failed to convince the court that the post-trial motion was anything more than sour grapes.  Plaintiff's counsel's motion leaned heavily on the improper jury instructions and the court denied the motion because the opportunity to challenge the verdict was waived by her failure to preserve the issue at trial. The Court reasoned that Dempsey did not object to the instruction, verdict sheet, or verdict until she determined that she did not appreciate the outcome. Therefore, the judgment was affirmed.</p>
Trials are fraught with appealable issues, so it is the trial attorney's task to raise objections for the issues to be preserved for an appeal.  Some issues can be anticipated, while some cannot. A seasoned trial attorney would recognize the potential disastrous outcome of the verdict sheet, object and live to fight another day.

Thanks to Gabrielle Outlaw for her contribution to this post. Please contact <a href="">Vincent Terrasi</a> with any questions or comments.


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