Angela Paliometros v. Diego Loyola, et al.

1 This is an appeal from an Order entered by the trial court on August 3,
2006, as amended by its Order of August 25, 2006, denying Appellants'
Motion for Post-Trial Relief, and denying Appellants' request for a remitittur.
The Amended Order of August 25, 2006 merely molded the verdict and

J. A14031/07

- 2 -
entered judgment in favor of Appellee in the amount of $745,172.17.
Appellants' Motion for Post-Trial Relief was based upon their assertions that
they owed no legal duty to Appellee with respect to her claim of Innkeeper's
Liability, and that there was no evidence as to causation in any event. While
numerous Defendants are named in the Complaint, the only Appellants are
the co-owners of Ligonier Gardens.

2 A review of the Statement of the Case and Counterstatement of the
Case in the parties' Briefs indicates that the parties are essentially in
agreement as to the evidence presented at trial.

I. FACTUAL BACKGROUND

3 Appellee (Plaintiff below) presented a claim for damages as a
consequence of physical and emotional injuries sustained by her by reason
of a sexual assault that was committed upon her by the Individual Defendant
below, Diego Loyola, on the premises of the Appellants' motor lodge or
motel. Defendant below, Sigma Tau Gamma, Inc., a college fraternity,
rented two (2) rooms at the motel for the purpose of giving a party. The
party started on October 16, 1998, and continued into the early morning
hours of October 17, 1998. Appellee was invited to the party by a fraternity
member. Despite the fact that most of the guests at the party were under
the age of twenty-one (21) years, alcoholic beverages were served to the
invited guests by the Defendant fraternity.

J. A14031/07

- 3 -

4 Between the time of Appellee's arrival at the party, on the evening of
October 16, 1998, and the time of the sexual assault in the early morning
hours of October 17, 1998, Appellee had consumed four (4) mixed drinks
containing alcohol. Individual Defendant Loyola, who was not previously
known to Appellee, was also a guest at the party.

5 The only actual employee of the Appellant motel was Appellant
Parsons, one of the co-owners. Parsons left the motel on the evening of
October 16, 1998 before any guests had arrived at the fraternity party, and
did not return to the motel until after he was notified by the police that the
sexual assault had occurred.

6 Sometime during the evening of October 16, 1998, officers from the
Ligonier Police Department arrived at the motel in response to a call from
someone who complained about noise. The police found numerous incidents
of underage drinking and, in fact, had to call for an ambulance to attend to
two (2) intoxicated guests at the party. The police did not order the guests
to leave the party or the motel premises because they felt that such conduct
was not within the scope of their authority. They did, however, confiscate
the alcoholic beverages found upon the premises.

7 At trial, Appellee testified that while she was not intoxicated, she was
otherwise not feeling well and, therefore, entered into an unoccupied room
that had been rented from Appellants by the Defendant fraternity and sat on
the edge of the bed. Shortly thereafter, she "passed out." Upon regaining

J. A14031/07

- 4 -

consciousness, she saw a person (whom she later identified as Individual
Defendant Loyola) in the bed with her, who was kissing her face and neck.
He was also removing her skirt. She attempted to resist physically and
verbally but lost consciousness again. When she regained consciousness,
she was naked. She had not removed her own clothes. Defendant Loyola
was attempting to have sexual relations with her and, again, Appellee
"passed out." Upon awakening, she saw Defendant Loyola putting his
clothes on. She quickly dressed herself and left the room. She found her
escort, who took her home. Defendant Loyola was later charged with
various crimes. He pleaded guilty to a second degree misdemeanor charge
of indecent assault.

8 At the civil trial below, Appellee produced expert testimony as to the
industry standard of care for innkeepers. Such expert testified as to the
manner in which, in his opinion, the Appellant motel owners had departed
from the requisite standard of care. Appellants presented no expert
testimony in response.

9 As to damages, Appellee produced the testimony of a licensed
psychologist who noted that the hospital emergency room records
documented that Appellee had sustained identifiable physical injuries as a
result of the sexual assault. That psychologist further opined that Appellee
suffers from post-traumatic stress disorder and will require periodic
psychological treatment for the rest of her life. Appellee herself described

J. A14031/07

- 5 -

the incident in detail, and how it has affecter her. Her husband (whom she
married sometime after the incident) and her father also testified as to the
adverse effects of the assault upon Appellee. There was no contrary medical
testimony (or any medical testimony whatsoever) presented by Appellants
at trial.

10 Appellant Parsons, upon cross-examination, testified that had he been
physically on the premises and observed the underage drinking (the fact of
which was not contradicted), he would have refused accommodations to the
Defendant fraternity and its guests. Parsons further testified that he wished
he had done things differently on the date of the incident.

11 Against this evidentiary background, the jury rendered a verdict in
favor of Appellee in the amount of $590,000.00, which was molded to the
sum of $548,700.00 because of a finding of comparative negligence of seven
percent (7%) on the part of Appellee. The trial court, on Motion of Appellee,
also entered judgment for Delay Damages, under Pa. R.C.P. 238, in the
amount of $196,472.17, plus appropriate interest.

II. STANDARD OF REVIEW

12 Our standard of review of the denial of post-trial relief by a trial court
following a jury's verdict is as follows:
We will reverse a trial court's decision to deny a motion
for a new trial only if the trial court abused its discretion.
See Harman v. Borah, 562 Pa. 455, 756 A.2d 1116,
1121-1122 (Pa. 2000). We must review the court's
alleged mistake and determine whether the court erred
and, if so, whether the error resulted in prejudice

J. A14031/07

- 6 -

necessitating a new trial. See id. at 1122-1123. If the
alleged mistake concerned an error of law, we will
scrutinize for legal error. See [id.] at 1123. Once we
determine whether an error occurred, we must then
determine whether the trial court abused its discretion in
ruling on the request for a new trial. See id. "An abuse
of discretion exists when the trial court has rendered a
judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated
by partiality, prejudice, bias, or ill will." Id. at 1123.
Petrecca v. Allstate Insurance Company, 797 A.2d 322,
324 (Pa. Super. 2002).
Stalsitz v. Allentown Hospital, et al., 814 A.2d 766, 771 (Pa.
Super. 2002).

III. ISSUES ON APPEAL

13 Appellants seek post-trial relief on the following grounds:

A. The lack of causation, i.e., that there was no evidence
presented by Plaintiff that Ligonier Gardens had a duty
to Plaintiff [Appellee], and that there was no causation
between the fraternity party and the subsequent assault
on Plaintiff [Appellee]; and

B. The refusal of the trial court to grant a remitittur.
(See Brief for Appellants, p.4).

IV. WAIVER OF OBJECTION TO DELAY DAMAGES

14 It should be noted that Appellants objected to the imposition of Delay
Damages in the trial court. However, that issue does not appear in
Appellants' Statement of Questions involved in this Appeal and is, therefore,
waived. Consequently, such issue will not be considered or addressed by
this Court on appeal.

J. A14031/07

- 7 -

V. DISCUSSION

A. Innkeeper's Duty and Proximate Causation

15 Appellants have asserted that the trial court erred in denying their
Post-Trial Motion based upon their claims as to the absence of any duty on
their part and the lack of proximate cause. We find that the facts in this
case are strikingly similar to those that were involved in Rabutino,
Administratrix of the Estate of William Impagliazzo v. Freedom State
Realty Co., Inc., et. al., 809 A.2d 933 (Pa. Super. 2002), where a nineteen
(19) year-old decedent was shot to death on the fifth floor of the Travelodge
Hotel in Philadelphia, which was owned and operated by the defendant in
that case. Decedent had been among an estimated number of two hundred
(200) partygoers under the age of twenty-one (21) years, attending beer
parties on several floors of the hotel. Racial tension developed between
some Hispanic attendees and Italian-American youths. One such youth,
Jose Nunez, fired two (2) shots from his handgun into a crowd where
decedent was standing, killing the decedent. The decedent's administratrix
filed suit alleging negligence under Sections 343 and 344 of the Restatement
(Second) of Torts. The trial court entered summary judgment against the
administratrix in favor of all Defendants. This Court reversed as to all
Defendants except Wells Fargo Guard Services.

16 In an extensive analysis in Rabutino, this Court relied upon § 344 of
the Restatement (Second) of Torts, which provides:

J. A14031/07

- 8 -

§ 344. Business Premises Open to Public: Acts of

Third Persons or Animals

A possessor of land who holds it open to the public for entry
for his business purposes is subject to liability to members
of the public while they are upon the land for such a
purpose, for physical harm caused by the accidental,
negligent, or intentionally harmful acts of third persons or
animals, and by the failure of the possessor to exercise
reasonable care to

(a) discover that such acts are being done or are likely
to be done, or

(b) give a warning adequate to enable the visitors to
avoid the harm, or otherwise to protect them against it.

17 In discussing the import of that Section 344, we stated in
Rabutino:

In order for liability to be imposed upon a Defendant in
a negligence action, the Plaintiff must establish the
following four elements: (1) the existence of a duty or
obligation recognized by law; (2) a failure on the part of the
Defendant to conform to that duty, or a breach thereof; (3)
a causal connection between the Defendant's breach and
the resulting injury; and (4) actual loss or damage suffered
by the complainant. T.A. v. Allen, 447 Pa. Super. 302, 669
A.2d 360 (1995). The basis for the order granting
summary judgment was that Rabutino supplied insufficient
evidence of both a breach of duty owed Impagliazzo and
causation. We, therefore, examine each element in turn.
Generally, there is no duty to control the acts of a third
party unless the ‘Defendant stands in some special
relationship with either the person whose conduct needs to
be controlled or… with the intended victim of the conduct,
which gives the intended victim a right to protection.' "
Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 40
(Pa. Super. 2000). All parties agree that Rabutino
established the existence of a special relationship with
evidence that Impagliazzo was a business invitee of
Appellee Freedom Realty's. See T.A., supra, (citing
Restatement (Second) of Torts, § 314A(2) and (3), which
recognize, respectively, the special relationships between
innkeepers and guests, and between other possessors of

J. A14031/07

- 9 -

land who hold it open to the public and the members of the
public who enter in response to the invitation).
It follows, then, that Freedom Realty owed Impagliazzo
a duty owed to any business invitee, namely, that it would
take reasonable precaution against harmful third party
conduct that might be reasonably anticipated. Id.; See also
Moran v. Valley Forge Drive-in Theater, Inc., 431 Pa. 432,
246 A.2d 875 (1968) (adopting as Pennsylvania law
innkeeper liability expressed in Restatement (Second) of
Torts, § 344, infra).

The reason is clear; places to which the general
public are invited might indeed anticipate, either
from common experience or known fact, that places
of general public resort are also places where what
men can do, they might. One who invites all may
reasonably expect that all might not behave, and
bears responsibility for injury that follows the
absence of reasonable precaution against that
common expectation. Feld v. Merriam, 506 Pa., 383,
391, 485 A.2d 742, 745 (1984).

Rabutino, 809 A.2d at 938-939.

18 Here, the co-owner of Ligonier Gardens and its only actual employee,
Appellant Parsons, knew that he was renting rooms to a fraternity for the
purpose of the fraternity's holding a party with invited guests, most of whom
were under the age of twenty-one (21). Notwithstanding such knowledge,
Appellant Parsons, as a co-owner and the only employee of Appellants, left
the premises prior to the arrival of any of the fraternity party guests at the
motor lodge, leaving the entire premises totally unsupervised by any
personnel of Ligonier Gardens.

19 Thus, we see no significant difference between the evidence in the
case at Bar and that which we addressed in the Rabutino case. We
similarly find that there was no intervening force or superseding cause

J. A14031/07

- 10 -

preventing the application of Section 344 of the Restatement (Second) of
Torts to the instant matter.

20 For, as we stated in Rabutino:

Here, though Nunez's wrongful act constituted an
intervening force, a jury, looking back to the
circumstances of the evening, may reasonably determine
that it was not so extraordinary or unforeseeable so as to
have been a superseding cause terminating the liability of
Freedom Realty. Undoubtedly, the degree of violence
resorted to by Nunez is shocking. Nonetheless, we must
be mindful that the peculiar way in which an injury may
result is not material so long as there was a foreseeable
probability of injury to one within the ambit of danger.
"If [an] actor's conduct is a substantial factor in bringing
about harm to another, the fact that the actor neither
foresaw nor should have foreseen the extent of the harm
or the manner in which it occurred does not prevent him
from being liable."

Id. at 942 (Emphasis Added).

21 So too here, as in Rabutino, Appellants, as innkeepers, knowing that
a fraternity party was going to take place where there undoubtedly would be
underage drinking going on, owed to Appellee the affirmative duty to
exercise reasonable care under the circumstances, and to take precautions
by having some supervisory personnel physically present on the premises to
monitor both the premises and the conduct occurring upon the same in
order to prevent any possible injury to Appellee, as a business invitee on
their premises. Consequently, we agree with the trial court's conclusion that
Appellants breached their "duty of care under the circumstances and in
[their] position as an innkeeper."

J. A14031/07

- 11 -

B. REMITITTUR

22 Appellants finally contend that a remitittur should have been granted
because the verdict was not within the limits of fair and reasonable
compensation, and further suggest that partiality, prejudice, or mistake had
influenced the amount of the jury's damages award.

23 Our standard of review in considering the reversal of a trial court's
order denying a remitittur is to determine whether the trial court abused its
discretion or committed an error of law in reaching such decision. See
Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410 (Pa. Super. 2004). In
that regard, this Court, in Mecca v. Lukasik, 530 A.2d 1334 (Pa. Super.
1987), discussed the factors to be considered in determining whether or not
a verdict is excessive:

The grant or refusal of a new trial because of the
excessiveness of the verdict is within the discretion of the
trial court. Hall v. George, 403 Pa. 563, 170 A.2d 367
(1961). This court will not find a verdict excessive unless
it is so grossly excessive as to shock our sense of justice.
Kravinsky v. Glover, 263 Pa. Superior Ct. 8, 396 A.2d
1349 (1979). We begin with the premise that large
verdicts are not necessarily excessive verdicts. Each case
is unique and dependent on its own special circumstances
and a court should apply only those factors which it finds
to be relevant in determining whether or not the verdict is
excessive. Mineo v. Tancini, 349 Pa. Superior Ct. 115,
502 A.2d 1300 (1986). A court may consider the
following factors, inter alia:

(1) the severity of the injury; (2) whether the
Plaintiff's injury is manifested by objective physical
evidence or whether it is only revealed by the
subjective testimony of the Plaintiff (and, herein, the
court pointed out that where the injury is manifested
by broken bones, disfigurement, loss of

J. A14031/07

- 12 -
consciousness, or other objective evidence, the
courts have counted this in favor of sustaining a
verdict); (3) whether the injury will affect the
Plaintiff permanently; (4) whether the Plaintiff can
continue with his or her employment; (5) the size of
the Plaintiff's out-of-pocket expenses; and (6) the
amount Plaintiff demanded in the original complaint.
Kemp v. Philadelphia Transportation Co., 239 Pa.
Superior Ct. 379, 361 A.2d 362 (1976).
Id. at 1340.

24 Only four (4) of these factors are of any relevance with respect to the
jury's monetary award in this case.

1. The Severity of the Injury

25 While all conduct involving assault and battery is to be condemned, it
is difficult to imagine a more painful, degrading, or emotionally troubling
experience than an unwanted sexual assault on the body of a young
defenseless female individual, such as Appellee herein. It is abundantly
clear that the assault by Defendant Loyola lasted a considerable period of
time, with Appellee experiencing the human emotions of fright, fear, shock,
shame, and disgust during the attack. Moreover, it is also clear from
Appellee's trial testimony that she was conscious of being physically violated
by Defendant Loyola during this assault.

26 Appellee suffered physical injury as reflected by the testimony of her
licensed psychologist and as documented by the hospital emergency room
records. Appellee has been diagnosed with post-traumatic stress disorder,
which will require her to undergo medical treatment for the rest of her life.

J. A14031/07

- 13 -

Finally, both Appellee's husband and her father have detailed the ways in
which this incident has adversely affected Appellee. Under such
circumstances, Appellant has clearly demonstrated the severity of her
injuries. See Connolly v. Philadelphia Transp. Co., 420 Pa. 18, 216 A.2d
60 (1966); Guzman v. Bloom, 413 Pa. 576, 198 A.2d 499 (1964); LaFace
v. Brentwood Motor Coach Co., 387 Pa. 18, 127 A.2d 93 (1956); and
Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953).

2. Physical Manifestation of Injury

27 There was extensive testimony in the trial record by Appellee's
licensed psychologist as to Appellee's having sustained post-traumatic stress
disorder and its consequences. (N.T. 170-229). We have carefully reviewed
this testimony as to post-traumatic stress disorder, which was unchallenged,
and can fairly summarize it as follows:

(a) it is an emotional condition caused by a
traumatic event;

(b) symptoms include re-experiencing of the
trauma through nightmares, obsessive thoughts and
flashbacks;

(c) avoidance of situations, people and/or
objects which remind the patient about the traumatic
event;

(d) increased anxiety in general with a
heightened startle response; and

(e) treatment consists of ongoing psychological
counseling.

See Guzman, supra, and Connolly, supra.

J. A14031/07

- 14 -

3. Permanency

28 The permanency of Appellee's emotional and continuing psychological
post-traumatic injuries was confirmed by Appellee's expert psychologist
without rebuttal testimony of any kind whatsoever – medical or otherwise –
from Appellants; that psychologist also opined that Appellee would need
medical treatment for her post-traumatic stress disorder for the rest of her
life, and that such injury is permanent in nature. See Durdella v.
Trenton–Philadelphia Coach Co., 349 Pa. 482, 37 A.2d 481 (1944).

4. Out-of-Pocket Expenses

29 While there is no reference to the amount of past or future out-ofpocket
medical expenses in the record below, the case sub judice is
strikingly similar to Botek v. Mine Safety Appliance Corp., 531 Pa. 160,
611 A.2d 1174 (Pa. 1992), where plaintiff suffered post-traumatic stress
disorder without physical injury, had little or no monetary damages, and had
very little medical treatment. He did not see a doctor until one (1) year
after the incident causing his symptoms, but such symptoms continued until
the time of trial, some seven (7) years after the original incident. Expert
medical testimony confirmed that plaintiff had experienced the classic
symptoms of post-traumatic stress disorder for all of that period of time.
There, the jury returned a verdict of $350,000.00, with the later addition of
Delay Damages. This Court found the verdict to be excessive (Botek v.

J. A14031/07

- 15 -

Mine Safety Appliance Corp., 594 A.2d 778 (Pa. Super. 1991)), but the
Supreme Court of Pennsylvania reversed, stating:
We have held on numerous occasions that whether to
grant a new trial because of excessiveness or inadequacy
of the verdict is a matter within the sound and peculiar
discretion of the trial court, which has observed the
demeanor of the witnesses, and its decision will be
sustained by an appellate court in the absence of a clear
or gross abuse of discretion or error of law which
controlled the verdict or the outcome of the case.
(Citations Omitted). Here, we think that the trial court
judge (and the jury) acted reasonably and that they were
not guilty of an abuse of discretion. Certainly the
Superior Court was entitled to disagree with their
conclusion on the merits, but the Superior Court was not
free to substitute their judgment for that of the trial court
under our decisions.

Botek, 531 Pa. at 165-166, 611 A.2d at 1176.

30 Moreover, this Court, in Kemp v. Philadelphia Transportation Co.,
239 Pa. Super. 379, 361 A.2d 362 (Pa. 1976), has stated that:
The mere disparity between the amount of out-of-pocket
expenses and the amount of the verdict does not in itself
justify the granting of a new trial (because the verdict
was excessive). Zawoyski v. Pittsburgh Rys., 415 Pa.
563, 566, 204 A.2d 463, 465 (Pa. 1964).

Id., at 365.

31 From our review of the record and the evidence presented to the jury
during the trial of this matter, and upon our examination of the factors to be
considered in determining whether or not a jury's verdict is excessive, we
conclude that the trial court's determination that the jury's verdict was not
excessive was in accord with the appellate court decisions in Pennsylvania

J. A14031/07

- 16 -

and should, therefore, be affirmed. The denial of a remitittur by the trial
court was entirely proper, in that Appellee has suffered a heinous sexual
assault that caused her both physical injuries and serious post-traumatic
stress disorder, the latter of which is permanent in nature and will require
life-long medical treatment.

32 Orders affirmed.

33 POPOVICH, J. files a DISSENTING OPINION.