Monaco, K. v. Temple University ( 2015 )

J. A32031/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KELLY MONACO, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TEMPLE UNIVERSITY - OF THE :
COMMONWEALTH SYSTEM OF HIGHER :
EDUCATION, :
:
Appellant : No. 499 EDA 2014
Appeal from the Judgment Dated July 25, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: 120503532
BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 22, 2015
Appellant, Temple University – of the Commonwealth System of Higher
Education, appeals from the judgment1 entered in the Philadelphia County
Court of Common Pleas, in favor of Appellee, Kelly Monaco, following a jury
trial. Appellant argues the trial court erred in denying its motion for a new
trial and/or remittitur in this slip and fall case because: (1) prejudicial error
resulted from various evidentiary rulings; (2) the trial court committed
*
Former Justice specially assigned to the Superior Court.
1
Appellant purported to appeal from the order denying its post-trial motion.
We amend the caption to reflect the appeal properly lies from the judgment
entered on July 25, 2013. See Levitt v. Patrick, 976 A.2d 581, 584 n.2
(Pa. Super. 2009).
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reversible error in its charge to the jury; and (3) the jury verdict was plainly
excessive and exorbitant. We affirm the judgment but correct a patent error
in the amount of total damages to Appellee.
The trial court summarized the evidence as follows:
[Appellee, a student at Temple University,] brought the
instant premises liability action due to a slip and fall
incident that occurred shortly after 12:30 p.m. on a set of
steps in front of Ritter Hall on the Philadelphia campus of
[Appellant] on June 1, 2010. It had been raining heavily,
but [Appellee] waited until the rain had diminished before
leaving Ritter Hall with a classmate, Donald Prifti.
[Appellee, who was wearing flip-flops,] slipped and fell
backward while descending the steps[,] causing a severe
ankle fracture which required the implantation of surgical
hardware by an orthopedic surgeon.
[Appellee] presented evidence at trial which the jury[,]
as the fact finder[,] found established the liability of
[Appellant]. The stairs outside of Ritter Hall lacked tread
for traction; were negligently constructed with respect to
slope; had side handrails that were too short; and lacked a
center handrail for [Appellee] to grasp when descending
the steps. [Appellee] presented the expert testimony of
Walter E. Green, A1A, who opined that the steps were a
fall hazard because of improper slope, inadequate
handrails, and lack of adequate traction. [Appellant] also
introduced liability experts, but the jury found the theories
of [Appellee’s] experts to be a more credible and accurate
description of the circumstances surrounding the fall.
Significantly, [Appellant] did not produce any medical
orthopedic experts or damages experts. On the other
hand, [Appellee] was treated at Temple University Hospital
by a Temple University orthopedic surgeon.
As a result of the fall, [Appellee’s] right ankle was
severely fractured, causing [Appellee] to miss five months
of work, and the summer sessions [of Appellant]. The
fracture required the surgical implantation of a plate and
screws to stabilize [Appellee’s] ankle. [Appellee] is in her
twenties, and as her medical expert opined, is likely to
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require significant future medical intervention.
The Commonwealth of Pennsylvania, and the
Commonwealth of Pennsylvania Department of General
Services, were dismissed from the case by Stipulation on
April 8, 2013, leaving [Appellant] as the sole remaining
Defendant. After jury selection, the trial in this matter
took place from July [22], 2013 to July 25, 2013. The jury
returned a verdict in the amount of $725,000.00; finding
[Appellee] 10% negligent, and [Appellant] 90% negligent.
Therefore, taking into account [Appellee’s] comparative
negligence, the Court molded the verdict to $652,500.00.
[Appellant] filed Post Trial Motions to which [Appellee]
responded. After argument on same, [Appellant’s] Post
Trial Motions were denied, and judgment was entered on
December 18, [2013] on the verdict, to which was added
$2,201.62 in delay damages for a total final verdict
amount of $654,201.62.[2]
Trial Ct. Op., 3/14/14, at 1-3 (citations to record omitted).
Appellant filed a timely notice of appeal on January 7, 2014, and a
timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal3 on January 31, 2014. The trial court issued its Rule 1925(a) opinion
on March 24, 2014.
On appeal, Appellant argues the trial court erred in six evidentiary
2
As we discuss infra, the court miscalculated the amount of total damages,
and we modify it.
3
Appellant’s 1925(b) statement was seven pages in length and contained
unnecessary factual and procedural history and inappropriate argument.
Rule 1925(b)(4) requires a statement to “concisely identify each rule or
error . . . .” Pa.R.A.P. 1925(b)(4)(ii). Nevertheless, we do not find waiver.
See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 421
(Pa. 2007).
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rulings: (1) “admitting unauthenticated photographs, which were not
provided during discovery;” (2) “allowing [Appellee’s] counsel to question
[Appellant’s] witnesses about matters beyond both personal knowledge and
work responsibility, as well as impermissible inquiry related to subsequent
remedial repair;” (3) “precluding [Appellant’s] cross-examination inquiry of
[Appellee] regarding the actual cause of her injury;” (4) “precluding certain
testimony from each of [Appellant’s] two defense experts;” (5) “allowing
[Appellee’s] physician to speculate about possible future problems, despite
his uncontroverted memorialized notation that [Appellee’s] injury had
resolved within a few months of the incident;” and (6) “admitting patently
inflammatory evidence, implying ‘hidden documents,’ divorced from the
actual merits of [Appellee’s] claim.”4 Appellant’s Brief at 13, 16, 18, 19, 21,
23. Appellant also argues the court erred in refusing its suggested points for
jury charge concerning weather, duty in relation to magnitude of defect,
self-serving testimony, Appellee’s duty to keep a lookout for her own safety,
landowner liability, permissible verdict influences, and speculative evidence.
Finally, Appellant contends the verdict warrants a new trial or remittitur
because it is “plainly excessive and exorbitant.” We address these seriatim.
This Court has stated:
We will reverse a trial court’s decision to deny a
4
These evidentiary challenges are preserved for appeal, as Appellant made
contemporaneous objections to them at trial.
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motion for a new trial only if the trial court abused
its discretion. We must review the court’s alleged
mistake and determine whether the court erred and,
if so, whether the error resulted in prejudice
necessitating a new trial. If the alleged mistake
concerned an error of law, we will scrutinize for legal
error. 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. 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.
Where a jury’s verdict is so contrary to the evidence
that it shocks one’s sense of justice, a new trial is
warranted.
Potochnick v. Perry, 861 A.2d 277, 281-82 (Pa. Super. 2004) (citations
omitted).
The standard of review in assessing an evidentiary ruling
of a trial court is extremely narrow. The admission or
exclusion of evidence is a matter within the sound
discretion of the trial court, which may only be reversed
upon a showing of a manifest abuse of discretion. To
constitute reversible error, an evidentiary ruling must not
only be erroneous, but also harmful or prejudicial to the
complaining party.
Id. at 282 (citations and quotation marks omitted).
Appellant first argues the trial court erred in admitting Appellee’s
photographs of the exterior steps of Ritter Hall, where Appellee fell, and of
Shusterman Hall, another campus building. Appellant’s Brief at 13 (citing
N.T. Trial, 7/22/13, at 60-61); see N.T., 7/22/13, at 152-55. It claims the
photographs were not properly authenticated because “[t]he record includes
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no explanation of when, where or by whom the photographs were taken.”
Id. Appellant further argues prejudice resulted because Appellee did not
produce them until the deposition, three days prior to jury selection, of
Appellant’s mechanical expert, Howard Medoff, Ph.D. Id. at 15. We find no
relief is due.
To authenticate or identify an item of evidence, Pennsylvania Rule of
Evidence 901 requires a proponent to “produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Pa.R.E.
901(a).
At trial, Appellant argued—as it does in the instant appeal—the
“photos were not produced as a part of [Appellee’s] expert report,” but
instead Appellee’s “counsel attempted to introduce [them] during the video
deposition of [Appellant’s] mechanical expert . . . .” N.T., 7/22/13, at 57.
Appellee responded some of the photographs were “impeachment materials”
and refuted Medoff’s measurements of the steps. Id. at 60. The other
photographs, Appellee contended, “relate to the friction strips that [she]
questioned [Appellant’s housekeeping employee, Kenneth] Murdter about at
his deposition,” and that Appellee’s architecture expert, Walter Green,
referenced the photographs in his report.5 Id. at 60. Appellant then argued
“the report that [Appellee was] attempting to rebut was served . . . back in
5
Appellee further argued she had provided the photographs to Appellant’s
counsel. N.T., 7/22/13, at 60-61.
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April;” we note trial was conducted in July. Id. at 61. The trial court
overruled Appellant’s objection to the photographs on the ground that they
would be used to impeach. Id.
The record belies Appellant’s instant authentication argument because
Appellee’s architecture expert testified the photographs depicted anti-slip
adhesive strips that were on stairs near Shusterman Hall at the time of
Appellee’s slip and fall. See N.T., 7/22/13, at 152-55. The record also
undermines Appellant’s argument that presentation of these photographs
resulted in surprise and prejudiced its ability to “properly investigate the
referenced photos.” See Appellant’s Brief at 15-16. Appellant argues these
photographs were not part of Green’s report and were produced for the first
time at trial. Id. Yet, as noted by the trial court in its opinion, Green
referenced them in his expert report, “which was produced well before trial.”
Trial Ct. Op. at 5; Expert Rep. of Walter E. Green, 4/1/13, at 2, 3, 5, Ex. 1-
9. Moreover, this report expressly noted the steps outside Shusterman Hall
utilized abrasive coating at the time of Appellee’s fall. Expert Rep. of Walter
E. Green at 2, 5. Therefore, we agree with the trial court that no prejudice
resulted, and hold the court did not abuse its discretion in admitting this
photographic evidence. See Trial Ct. Op. at 5.
Appellant next argues the trial court erred by permitting its
housekeeping employee, Vincent Washington, to testify on cross-
examination about non-skid treads at Shusterman Hall. Appellant’s Brief at
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16, 17. Appellant also argues the court erred in allowing Washington and
assistant superintendent of housekeeping, Kenneth Murdter, to testify as to
subsequent repairs and investigations into other falls. Id. at 16-17. We
disagree.
A lay witness may testify in the form of an opinion if it is “rationally
based on the witness’s perception . . . , helpful to clearly understanding the
witness’s testimony or to determining a fact in issue . . . , and not based on
scientific, technical, or other specialized knowledge within the scope of Rule
702.” Pa.R.E. 701(a)–(c); see Pa.R.E. 702 (regarding testimony by expert
witnesses). Evidence of subsequent remedial measures is not admissible to
prove negligence if those measures “would have made an earlier injury or
harm less likely to occur.” Pa.R.E. 407. However, “[i]n certain
circumstances[,] evidence of similar accidents occurring at substantially the
same place and under the same or similar circumstances may, in the sound
discretion of the trial [j]udge, be admissible to prove constructive notice of a
defective or dangerous condition and the likelihood of injury.” Houdeshell
ex rel. Bordas v. Rice, 939 A.2d 981, 984 (Pa. Super. 2007) (citations,
punctuation, and emphasis omitted).
Here, Appellee called Appellant’s housekeeping employee, Washington,
to testify on cross-examination as a lay witness. N.T., 7/22/13, at 63.
Appellant objected to Appellee’s line of questioning about external stairs
near Shusterman Hall. Id. at 73. The trial court overruled Appellant’s
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objection on the ground that Washington could testify as to the facts. Id.
Appellant asked whether Washington had seen the steps and was aware
they had friction strips. Id. at 74. Washington answered affirmatively,
stating only, “Yeah.” Id.
Washington’s personal knowledge of external steps on Appellant’s
campus is supported by the record. As part of his job responsibilities, he
monitored the conditions of external staircases “all over” Appellant’s
campus. Id. at 64-65, 67. Whether the steps had friction strips constitutes
a matter of simple observation rather than “scientific, technical, or other
specialized knowledge.” See Pa.R.E. 701(c). We thus agree with the trial
court that “[t]his was fact testimony.” See Trial Ct. Op. at 6.
Furthermore, the record does not support Appellant’s argument that
the trial court erred in permitting Murdter’s testimony on “subsequent
remedial repairs.” See Appellant’s Brief at 17. Appellee asked Murdter
whether he asked his boss to inspect the Ritter steps after Appellee’s fall.
N.T., 7/22/13, at 86. Appellant objected, arguing Appellee improperly
sought testimony on subsequent repair, but the court overruled this
objection. Id. at 86-87. The trial transcript shows the ensuing testimony:
[Appellee’s Counsel:] Did you ask your supervisor to
send someone out there to take a look at the step?
[Murdter:] Yes. I said they had a complaint about it.
Was there anything subsequent, that we have somebody
come out to take a look at it, something like that.
Q. Would it surprise you to know the step’s still in that
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condition today?
A. I haven’t been there in a little while, but probably—I
don’t know to be honest with you. I don’t know.
Id. at 87.
We hold the trial court properly ruled the ban on subsequent remedial
measure testimony did not apply to this testimony. Murdter testified he had
no knowledge of any remedial measure taken by Appellant to make “an
earlier injury or harm less likely to occur.” Id. Therefore, Rule 407 did not
apply. See Pa.R.E. 407. Moreover, Appellant’s argument that the trial court
abused its discretion in permitting his testimony about Appellant’s
investigation into similar accidents fails because such testimony “is
admissible to demonstrate the existence of a hazardous condition.” See,
e.g., Yoffee v. Pennsylvania Power & Light Co., 123 A.2d 636, 648-49
(Pa. 1956) (“Authorities are almost unanimous in holding that evidence of
the occurrence of similar accidents is admissible for the purpose of
establishing the character of the place where they occurred, their cause, and
the imputation of notice, constructive at least, to the proprietors of the
establishment, of the defect, and the likelihood of injury.”).
Appellant next argues “self-evident” prejudice resulted because the
trial court precluded cross-examination of Appellee regarding how the
“inherent nature” of her flip-flops and the rain caused her injury. Appellant’s
Brief at 18. Appellant claims the trial court’s decision “denied the defense its
sole opportunity to thoroughly explore actual causative evidence directly
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with [Appellee].” Id. at 19. We disagree.
On cross-examination, Appellee testified about the flip-flops she was
wearing when she fell, the rain on the day of her fall, and how she fell. N.T.,
7/23/13, 25-28, 30. Appellee stated, “I was walking straight ahead, and I
don’t know which direction it went exactly, but it did go—I fell directly back,
my legs right out in front of me [sic].” Id. at 29-30. Appellant then asked:
“Isn’t it true that in order for a twist to happen, one end [sic] has to remain
stationary while the other end turns?” Id. at 30. Appellee objected, and
after a sidebar discussion, the trial court sustained the objection. Id. at 30-
33. We find the trial court properly precluded this testimony because an
opinion as to the torque required to cause a twisting-type injury is “based on
scientific, technical, or other specialized knowledge.” See Pa.R.E. 701.
Such an opinion is beyond the knowledge of a layperson. Appellant has not
demonstrated Appellee possessed sufficient experience or specialized
knowledge that qualified her to offer such an opinion.
Moreover, the record does not support Appellant’s argument that the
trial court’s rulings deprived it of an opportunity to question Appellee about
her flip-flops or the causative evidence. Rather, immediately prior to the
court’s ruling, Appellant cross-examined Appellee about her flip-flops, how
she slipped, and how the rain led to her injury:
[Appellant’s Counsel:] Now you testified that you
have been—you were wearing flip-flops—
[Appellee:] Yes.
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Q. —at the time?
A. That is correct.
Q. And these are the style of flip[-]flops that have a
post between the big toe and the other toes—
[A.] Yes.
Q. —correct? Now, isn’t it true that when you are
wearing flip[-]flops even on a flat surface, every step that
you take, your heel comes away from the sole of the flip[-
]flop?
A. Yes.
Q. So every step you take, there’s a space that
occurs between your heel and the flip[-]flop; is that
correct?
A. Yes, I do suppose so.
* * *
[Appellant’s Counsel:] So every step that you took in
your flip[-]flops between here and the steps created a
space between your heel and your flip-flop that the rain
could get into; isn’t that correct?
[Appellee:] Perhaps, yes.
Q. You testified that it was raining very hard when
you ended your class, correct?
A. Yes.
Q. And that you and your friend, Mr. Prifti, waited
until the rain slacked up as you said—
A. Yes.
Q. —before you decided to leave. now in your
deposition when we asked you, was it raining when you
left the building, you said that it had been raining hard.
You and your friend waited, but you decided to leave
anyway, and you used the word [sic] you left anyway.
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A. Well, it had still been raining, but it slowed down a
little bit.
Q. So when you used the term that you decided to
leave anyway, meaning despite the fact that it was still
raining, was it still raining hard, or had it stopped raining?
A. It had slowed down.
Q. But it was still raining?
A. Yes.
Q. Now when we asked what caused you to fall, do
you remember the answer that you gave us?
A. I took a step, and my foot slipped out from
underneath of me.
Q. Could we look at page 56 of her deposition? I’m
looking at page 56, line 16.
* * *
[Appellant’s Counsel:] I have marked off in ink the
question and the answer and the question [sic]. Could you
please read what that question says?
[Appellee:] It says, can you tell me what caused
your fall, and I responded, the water from the rain.
Q. You didn’t say anything about the steps or your
shoes or slipping or anything like that?
A. There was still water on the step from the rain.
Q. But your answer was that the water caused you to
fall. That was your answer to us back in –
A. February.
Q. – February. Are you aware that your physician
has testified that your injury resulted from a twisting
injury? Are you aware of that?
A. Yes.
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Q. And are you aware that the emergency
department records show that your injury was a twisting-
type injury? Are you aware of that?
A. Yes.
Q. And since both those health care providers report
a twisting-type injury, how do you explain that your foot
slipped straight out from under you without twisting?
A. I was walking straight ahead, and I don’t know
which direction it went exactly, but it did go – I fell directly
back, my legs right out in front of me.
Q. I understand that. But I’d like for you to explain
as to your foot itself. Can you explain how you encounter
a twisting injury when your foot slipped straight out from
under you?
A. I would assume from the momentum of me
walking.
N.T., 7/23/13, at 25-30. At this point, Appellant posed the question that is
the subject of this issue: “Isn’t it true that in order for a twist to happen, one
end has to remain stationary while the other end turns?” Id. at 30. In light
of the forgoing exchange, we disagree with Appellant’s claim that the court
precluded it from questioning Appellee about the cause of her fall.
Appellant next challenges the trial court’s rulings that limited its expert
witness testimony. It argues the court erred in precluding Appellant’s
architecture expert, Ronald Kobelin, from testifying that part of his analysis
included the coefficient of friction measurements taken by its biomedical
engineering expert, Howard Medoff. Appellant’s Brief at 19-21. Specifically,
the trial court sustained the objection to Appellant asking Kobelin: “Do you
know whether the textured granite steps at Ritter Hall reach the .5
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coefficient of friction level?” N.T., 7/23/13, at 102. Appellant also contends
the court erred in precluding Medoff from testifying about the opinion of
Appellee’s architecture expert, Walter Green. Id. at 20. Appellant argues
these decisions were “flatly contrary to governing law” because an expert is
permitted to testify on an opinion of another expert. Id. at 21. We
disagree.
As with other evidentiary rulings, “[t]he admissibility of expert
testimony is soundly committed to the discretion of the trial court, and the
trial court’s decision will not be overruled absent ‘a clear abuse of
discretion.’” Hatwood v. Hosp. of Univ. of Pa., 55 A.3d 1229, 1239 (Pa.
Super. 2012).
Appellant’s claim that the trial court erred in precluding Kobelin from
testifying about his knowledge of the coefficient of friction on the Ritter Hall
steps is without merit. Any potential harm or prejudice resulting from this
ruling was cured by Kobelin’s subsequent testimony that the Ritter Hall steps
met the applicable codes, regulations, and industry standards based on their
coefficient of friction measurements. See Potochnick, 861 A.2d, at 281;
N.T., 7/23/13, at 109-10. Incorporating the referenced .5 coefficient of
friction, he expressly stated: “[T]he textured granite surface applies a
coefficient of friction far exceeding .5 and in my opinion is very safe under
any kind of wet conditions or dry conditions.” Id. at 110. Kobelin also
testified that slip resistance is measured by a surface’s coefficient of friction,
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a measurement of .5 is the industry standard, and lower coefficients of
friction may also be safe. Id. at 101-02, 105-08.
Appellant’s argument that the trial court erred in precluding testimony
of its biomedical engineering and human factors expert, Medoff, about the
findings of Appellee’s architecture expert, Kobelin, also lacks merit. Medoff
was qualified to testify about biomechanical engineering and human factors
analysis, and he had a background in pedestrian walkway safety and
footwear. N.T. Trial, 7/16/13, at 6-7, 8-9.
“Experts are permitted only to render opinions in the specific field(s) in
which they have expertise, and not to speculate outside their fields.”
Tucker v. Bensalem Twp., 987 A.2d 198, 204 (Pa. Cmwlth. 2009); 6 see
Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 539-40 (Pa. Super.
2003) (“[E]ven physicians have been held unqualified to testify in specialty
areas in which they are not experienced or educated.”). The Viguers Court
found no error in the trial court’s holding that the plaintiff’s pulmonary
physician expert was not qualified to testify about the defective design of the
defendant’s cigarettes or safer cigarette alternatives. Viguers, 837 A.2d at
6
“We are not bound by decisions of the Commonwealth Court; however
such decisions provide persuasive authority. Thus, we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
See Graver v. Foster Wheeler Corp., 96 A.3d 383, 387 n.6 (Pa. Super.
2014) (citations omitted), appeal denied, 2015 WL 669800 (Pa. Feb. 4,
2015).
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539. Although this purported expert treated smokers and “studied the
tobacco industry for many years, including articles, journals, public and
internal documents relating to the manufacture of cigarettes,” he was not
qualified as an expert in the “manufacture” or “design process” of cigarettes
specifically. Id. at 539-540 n.5; see also Christiansen v. Silfies, 667
A.2d 396, 403 (Pa. Super. 1995) (ruling trial court did not err in holding
trooper could not testify about regulations involving driving standards even
though he was expert on safety inspections of motor carriers and certain
related regulations). Rather, the Court noted, “cigarette design is a field far
removed from medicine,” and requires specific industry knowledge.
Viguers, 837 A.2d at 539-40 n.5.
The trial court in the current case did not err in holding Medoff was not
qualified to testify about Kobelin’s architectural conclusions. Although
Medoff possessed credentials in the field of safe walking generally, he was
not qualified as an expert in architecture and did not purport to be an expert
in architecture. See N.T., 7/16/13, at 6-7, 8-9. Moreover, no prejudice
resulted where Appellant cross-examined Appellee’s architecture witness,
Walter Green, and where Kobelin testified about architecture on behalf of
Appellant. See N.T., 7/22/13, at 111-15, 158-73; N.T., 7/23/13, at 74-144.
Appellant argues the trial court erred in denying its motion in limine to
preclude “future harm” testimony of Appellee’s treating physician, Dr.
Andrew J. Meyr. Appellant’s Brief at 21-23. We note that Dr. Meyr was
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employed by Temple Hospital at the time he treated Appellee. Appellant
asserts such testimony is inadmissible by law due to its “reliance on
conjecture and speculation to establish the essential elements of [Appellee’s]
case.” Id. at 21. Appellant further purports that Dr. Meyr stated on the
record that Appellee’s injuries resolved within a few months of the accident.
Id. at 21-23. We disagree.
We note that in his expert report, Dr. Meyr stated:
[Appellant’s] prognosis for her left ankle is fair. Typically
after a fracture of the ankle, such as the one she
sustained, future resultant deformities could include but
are not limited to: Osteoarthritis of the ankle, damage of
the subchondral bone of the talus bone, painful ankle
synovitis, inability to ambulate with a normal gait pattern,
significant pain affecting activities of daily living, early
degenerative changes of the affected limb and the
contralateral limb due to abnormal gait as well as
inflammation of tendous and ligaments due to altered gait.
If she does go on to have significant arthritic changes,
these often can cause a lifetime of pain and disability, and
often require future invasive procedures such as
arthroscopic examinations, joint replacements and even
fusions, to help control pain. Thankfully it does not appear
as though any of these complications have developed to
my knowledge yet but she is certainly at risk for the future
development of them at some point in the future,
especially considering her young age at the time of the
injury.[7]
Expert Rep. of Andrew J. Meyr, 3/22/13, at 2.
7
In its argument, Appellant truncates the relevant opinion of Dr. Meyr. In
so doing, Appellant ignores Dr. Meyr’s opinion that Appellee “is certainly at
risk for the future development of [resultant deformities] at some point in
the future, especially considering her young age at the time of the injury.”
Compare Appellant’s Brief at 22-23, with Expert Rep. of Andrew J. Meyr.
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Appellee presented the deposition testimony of Dr. Meyr by video
wherein he testified that Appellee’s injury increased her risk of developing
arthritis, chronic pain, and chronic swelling. N.T. Trial, 7/17/13, at 27-29.
He further testified that if degenerative arthritis develops and preliminary
treatments are ineffective, Appellee may require fusion or replacement of
her joint. Id. at 29-30. Dr. Meyr estimated the cost of this procedure at
$50,000 to $60,000. Id. at 30.
The trial court correctly noted that testimony about Appellee’s medical
prognosis is relevant and admissible in a determination of damages. Trial
Ct. Op. at 7 (citing Kovach v. Central Trucking, Inc., 808 A.2d 958, 961
(Pa. Super. 2002)). The court also noted testimony regarding a prognosis
“need not be within a reasonable degree of medical certainty” when applied
to damages. Hamil v. Bashline, 392 A.2d 1280, 1288-89 n.10 (Pa. 1978);
see Gradel v. Inouye, 421 A.2d 674, 680 (Pa. 1980) (“[A] doctor properly
may be allowed to explain the possible future effects of an injury, and with
less definiteness than is required of opinion testimony on causation.”)
(citations omitted). Dr. Meyr testified that although Appellee did not
currently suffer from arthritis or any related affliction, she was at risk for
developing arthritis and other afflictions. Therefore, Appellant’s argument,
that the trial court’s ruling runs contra to the law, lacks merit.
Appellant’s next evidentiary issue concerns an initial response it gave
to Appellee’s discovery request about “the existence of same-site fall-related
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incident reports.” Appellant’s Brief at 24. Appellant avers the following. In
October 2012,8 it responded, “[f]ollowing a due diligence investigation,”
“None. But [Appellant] reserves the right to supplement this response.” Id.
“[W]ithin a week of trial, [Appellee] sent a second request on the same
subject.” Id. Appellant’s counsel “decided to personally inquire,” “learned
that indeed two prior falls had occurred at the site—albeit dissimilar in
nature,” and “then promptly delivered” the discovery to Appellee. Id. In
the instant appeal, Appellant avers the record thus “confirms defense
counsel’s adherence to the continuing duty to disclose.” Id.
Appellant then maintains the court erred in allowing Appellee “to
project onto a large screen a magnified image of the initial interrogatory—
with [Appellant’] response—for the jury to view.” Id. Appellant argues
Appellee’s presentation to the jury of Appellee’s initial response to an
interrogatory about any other reports of falls on the Ritter Hall steps resulted
in prejudice. Id. at 23, 27. Appellant further contends that this
impermissibly allowed the jury to infer nefarious intent where Appellant
properly updated its response and where any delay in production resulted
from ordinary discovery errors. Id. at 25-26. We disagree.
At trial, Appellant’s assistant superintendent of housekeeping, Kenneth
Murdter, testified he had never received a report of anyone other than
8
The exact dates of Appellant’s interrogatories and Appellee’s responses are
not readily ascertainable in the record.
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Appellee falling on the Ritter Hall steps. N.T., 7/22/13, at 89. On cross-
examination, Appellee presented its discovery request to the jury and stated
Appellant did not send “additional reports of people that slipped and fell”
until July 19, 2013. Id. at 94. Appellee asked Murdter if he knew “why it
took until July 19, 2013,” the business day before trial, to respond. Id.
Appellant’s counsel objected, stating, “[W]e only received the notice to
produce two days before the date of this letter.” Id. Appellee then
presented to the jury the original discovery request for those records. Id.
Appellant again objected, arguing, “[U]nless [Murdter is] going to be
presented with the response to that [initial interrogatory], I think this line of
questioning is grossly misleading.” Id. at 95. The trial court allowed
Appellee to proceed, reasoning someone would have had to answer the
interrogatories on behalf of Appellant. Id. at 95-96. Appellee then
presented Appellant’s response, which indicated there were no such incident
reports. Id. at 96. Appellant did not object to the presentation of its
response. Id. at 96-97.
In its opinion, the trial court found Appellant “failed to produce” two
incident reports responsive to Appellee’s discovery requests “until the day
before trial despite several requests by [Appellee].” Trial Ct. Op. at 8.
Any party may impeach the credibility of a witness “by any evidence
relevant to that issue, except as otherwise provided by statute or these
rules.” Pa.R.E. 607(b). “Evidence is relevant if . . . it has any tendency to
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make a fact more or less probable than it would be without the evidence,
and . . . the fact is of consequence in determining the action.” Pa.R.E. 401.
We find the initial August 2012 interrogatory undercuts Appellant’s
representation that it “only received the notice to produce two days before”
it produced the incident reports. See N.T., 7/22/13, at 94. Further,
Appellant waived its objection to the presentation of its response when it
requested Murdter be shown the response and then failed to object to
Appellee showing it. Id. at 95-97.
Appellant similarly argues it is entitled to a new trial because the court
erred in “allowing [certain] cross-examination [of its architecture expert,
Ronald Kobelin] regarding additional photographs in front of the jury.”
Appellant’s Brief at 27. Appellant contends the trial court agreed that cross-
examining Kobelin about photographs he took but that Appellant did not
produce to Appellee “would give the impression that there was duplicity by
defense counsel, and that same was ‘hiding’ something.” Id. at 28. We find
this issue waived.
The trial transcript shows the following exchange occurred in front of
the jury, and then a sidebar discussion ensued:
[Appellee’s Counsel:] Did you take any photographs at
the scene, at the scene of the accident?
[Kobelin:] I did.
Q. Where are they?
Trial Court: All right. Do you have—go ahead.
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[Appellee’s Counsel:] I’ve never been provided with any
photographs. Were they maybe attached to Dr. Medoff’s
report instead of yours?
[Kobelin:] No. I sent mine separate.
Q. How many did you take?
A. Six, seven maybe, six, seven maybe, general.
[Appelle’s Counsel:] Can we see you sidebar [sic], Your
Honor?
N.T., 7/23/13, at 113-14.
A sidebar discussion out of the jury’s hearing followed. Appellee’s
counsel claimed she never received any photographs corresponding to
Kobelin’s report. Id. at 114-15, 117-18, 125, 127-28. Appellant claimed it
forwarded everything it received to Appellee, id. at 114, and that it did not
receive the other three or four photographs that Kobelin testified he sent to
Appellant. Id. at 114, 125-26. The parties also discussed how the three
photographs Appellant presented at trial compared to those Appellee
presented. Id. at 127-29. The trial court determined the parties would
examine Kobelin regarding the missing photographs outside the presence of
the jury. Id. at 130-31.
The trial court recessed the jury. Id. at 132. Appellee’s counsel then
asked Kobelin if he sent the six or seven photographs to Appellant, and
Kobelin responded he emailed them to Appellant. Id. at 140-41. Appellee’s
counsel then requested Kobelin to send the missing photographs to the
court. Id. at 141. Appellant also asked Kobelin to clarify to which exhibits
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the three photographs presented at trial corresponded. Id. at 139-40. The
proceedings concluded that day without the jury reentering the court room.
Id. at 144.
We find Appellant’s argument meritless because Appellee did not
cross-examine Kobelin about the missing photographs in the presence of the
jury. In support of its argument, Appellant cites thirty-two pages, pages
113 through 144,9 of the July 23, 2013 trial transcript. See Appellant’s Brief
at 28 n.99. However, our review of those pages indicates the jury only
heard Kobelin testify that he took six or seven photographs and that he sent
them to Appellant. N.T., 7/23/13, at 113-14. The remainder of the
discussion regarding these photographs occurred either at sidebar, id., at
114-15, 117-18, 124-28, 130-31, or with the jury recessed. Id., at 138-43.
Likewise, Appellant proffers that its objection was overruled, but does not
cite to the place in the transcript where it made the objection or where the
trial court overruled it. See Appellant’s Brief at 28.
In its second issue, Appellant argues it should be afforded a new trial
because the court improperly refused all thirty-eight of its points of charge
and, specifically, refused its fourteen points related to weather, self-serving
testimony, Appellee’s duty “to keep a lookout for her own safety,” landowner
9
Appellant cites to pages 1130a through 1140a of the reproduced record.
Appellant’s Brief at 28 n.99. These correspond to pages 113 through 144 of
the notes of the July 23, 2013 testimony.
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liability, permissible verdict influences, and speculative evidence.
Appellant’s Brief at 29. The sum of Appellant’s argument is as follows:
All of these rejected points have three things in
common: each accurately states governing law; each
responds to the facts in the instant litigation; and the
charge actually given to the jury remained silent as
regards each governing precept. This is contrary to the
rules of law as pertaining to jury instructions, as detailed
in the foregoing Standards of Review section.
Id.10
It is well-settled that:
Our standard of review regarding jury instructions is
limited to determining whether the trial court committed a
clear abuse of discretion or error of law which controlled
the outcome of the case.
* * *
[I]n reviewing a trial judge’s charge, the proper test is
not whether certain portions taken out of context appear
erroneous. We look to the charge in its entirety, against
the background of the evidence in the particular case, to
determine whether or not error was committed and
whether that error was prejudicial to the
complaining party.
Polett v. Pub. Commc’ns, Inc., 83 A.3d 205, 216 (Pa. Super. 2013)
(citations omitted) (emphasis added), appeal granted on other grounds, 91
A.3d 1237 (Pa. 2014).
Appellant makes no argument regarding prejudice; we therefore find
10
Appellant’s entire discussion on these jury instructions spans less than a
page. Appellant’s Brief at 29. It is wholly devoid of any legal authority even
though Appellant notes, “[t]he applicable law accompanies each point.” Id.
at 29 n.102. Nevertheless, we decline to find waiver on this point.
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no relief is due. See Polett, 83 A.3d at 216.
Appellant also argues the trial court erred in reading to the jury
sections 602.3 and 602.4 of the Philadelphia Maintenance Code because they
“include[ ] language strongly suggesting it is applicable only to interior
passageways,” and because they contradict the law regarding Appellant’s
duty to “provide a reasonably safe egress” and its duty to retrofit.
Appellant’s Brief at 29-30. Instead, Appellant urges, the trial court
committed reversible error by rejecting its points for charge, “which
specifically cautioned that no such duty [to retrofit] exists in Pennsylvania.”
Id. at 30. We disagree.
Sections 602.3 and 602.4 of the Philadelphia Maintenance Code in
effect at the time of trial provided:
602.3: Stairways, handrails, and guards: Every exterior
and interior flight of stairs having more than three risers
shall have handrails, and every open portion of stair
landing, balcony, deck, porch, or other walking surface
which is more than 30 inches above the floor or grade
below shall have guards. Handrails shall not be less than
30 inches nor more than 42 inches high measured
vertically above the nosing of the tread and above the
finished floor of the landing or walking surfaces. Guards
shall not be less than 30 inches high above the floor to the
walking surface.
602.4: Walking surfaces. Walking surfaces of aisles,
passageways, corridors, stairways and other elements or
means of egress shall be maintained free of warping, loose
or torn surfaces and any other condition which does not
provide a safe means of egress.
N.T. Trial, 7/24/13, at 93-94 (citing PHILA., PA., PROPERTY MAINTENANCE CODE,
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§§ 602.3, 602.4 (2d. ed. 2d. prtg. 2007)).
The law is well established that the “refusal to give a requested
instruction containing a correct statement of law is ground for a new trial
unless the substance thereof has otherwise been covered in the court’s
general charge.” Potochnik v. Perry, 861 A.2d 277, 285 (Pa. Super. 2004)
(emphasis omitted).
The express language of the Philadelphia Property Maintenance Code
belies Appellant’s claim that it “includes language strongly suggesting it is
applicable only to interior passageways.” Section 602.3 states, “Every
exterior and interior flight of stairs . . . .” Compare Appellant’s Brief at 29-
30, with N.T., 7/24/13, at 93-94 (citing PHILA., PA., PROPERTY MAINTENANCE
CODE, §§ 602.3, 602.4 (2d. ed. 2d. prtg. 2007)).
Appellant’s argument that section 602.4 “easily yields an interpretation
yielding a duty to absolutely maintain safe egress, as opposed to the well-
settled premises liability edict to provide a reasonably safe egress” also
lacks merit. See Appellant’s Brief at 30. The trial court properly instructed
the jury on negligence rather than strict liability, and on Appellant’s duty as
a property owner to Appellee as an invitee, as reflected in a review of the
entire record. N.T., 7/24/13, at 90-91, 93-94; see Potochnick, 861 A.2d
at 283. The trial court instructed on negligence as follows:
The legal term negligence, otherwise known as
carelessness, is absence of ordinary care that a reasonably
prudent person would use in the circumstances presented
here. Negligent conduct may consist either of an act or a
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failure to act when there’s a duty to do so. In other words,
negligence is the failure to do something that a reasonably
careful person would do or doing [sic] something that a
reasonably careful person would not do in light of all of the
surrounding circumstances established by the evidence in
this case.
N.T., 7/24/13, at 90-91. The trial court instructed on the duty of care an
owner of land has to an invitee as follows:
This duty [of care to an invitee] is owed generally, it’s
to invitees generally. An owner of property is required to
use reasonable care in the maintenance and use of the
land and to protect invitees from foreseeable harm.
An owner of land or property: An owner of property is
required to inspect the premises and to discover
dangerous conditions. An owner of his property is liable
for harm caused to invitees by a condition on the property
if the owner knows or by using reasonable care would
discover the condition and should realize that it involves an
unreasonable risk of harm, and the owner should expect
that the invitees will not discover or realize the danger or
will fail to protect themselves against it and the owner fails
to use reasonable care to protect the invitees against the
danger.
An owner of property is liable for any harm that the
owner should have anticipated regardless of whether the
danger is known or obvious.
Id.The trial court also provided context to the code by instructing, “a
violation of [the] code would be evidence that you should consider along
with all the other evidence presented on the question of whether [Appellant]
was negligent.” Id. at 93.11 Appellant does not explain how “applying §
11
Appellant does not address this language in its argument. Rather,
Appellant truncates the court’s jury charge in its excerpt so as to exclude
this portion. Compare Appellant’s Brief, App’x E, with N.T., 7/24/13, at 93.
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602.4 [of the Philadelphia Property Maintenance Code] in the instant case is
directly contrary to the well-established rule precluding a duty to retrofit.”
See Appellant’s Brief at 30. As relevant here, the Philadelphia Property
Maintenance Code provides only that “[w]alking surfaces of . . . stairways . .
. shall be maintained free of . . . any other condition which does not provide
safe means of egress.” See N.T., 7/24/13, at 93-94 (citing PHILA., PA.,
PROPERTY MAINTENANCE CODE, §§ 602.3, 602.4 (2d. ed. 2d. prtg. 2007)). The
Code does not impose an absolute duty to retrofit. Indeed, the code
expressly states, “In certain cases, the [Philadelphia] Property Maintenance
[C]ode may require retrofit of basic features to provide a minimum level of
safety, welfare and health in those structures build prior to the
establishment of such provisions in the other codes.” See PHILA., PA.,
PROPERTY MAINTENANCE CODE, “History” (2d. ed. 2d. prtg. 2007)). Appellant
conceded this position at trial:
[The Philadelphia Maintenance Code] says that all
property, interior, outerior [sic] must be safe, period. It
does not specify slope or coefficients of friction. It doesn’t
specify any of that. Only it says [sic] these premises
should be made safe. And unless they’ve been deemed
to be unsafe, then there’s no requirement to retrofit.
See N.T., 7/24/13, at 29 (emphasis added).
Lastly, Appellant argues the trial court erred in denying its motion for
a new trial or, alternatively, remittitur because the jury verdict was “plainly
excessive and exorbitant.” Appellant’s Brief at 31. It contends the verdict
“speaks for itself” as shocking because Appellee’s “expert noted that the
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injury had resolved by December 2010,” Appellee “returned to her usual
waitressing and physical fitness jobs within months of the incident,” and the
verdict exceeded Appellant’s out-of pocket expenses, compensation
demanded, and medical expenses. Id. at 31-33. We disagree.
“The grant or refusal of a new trial because of the excessiveness of the
verdict is within the discretion of the trial court.” Paliometros v. Loyola,
932 A.2d 128, 134 (Pa. Super. 2007). Our standard of review is to
“determine whether the trial court abused its discretion or committed an
error of law” in reaching its decision. Id. “This [C]ourt will not find a verdict
excessive unless it is so grossly excessive as to shock our sense of justice.”
Id. (citations omitted). In making this determination, this Court may
consider, inter alia, the following factors:
(1) the severity of the injury; (2) whether the
[p]laintiff’s injury is manifested by objective physical
evidence or whether it is only revealed by the
subjective testimony of the [p]laintiff . . . ; (3)
whether the injury will affect the [p]laintiff
permanently; (4) whether the [p]laintiff can continue
with his or her employment; (5) the size of the
[p]laintiff’s out-of-pocket expenses; and (6) the
amount [the p]laintiff demanded in the original
complaint.
Id. at 135 (citations omitted).
Evidence adduced at trial showed Appellee’s injury was severe and
manifested by objective physical evidence where she required multiple
surgeries. See Trial Ct. Op. at 9-10. Her treatment “required the surgical
implantation of a plate and screws to stabilize [her] ankle.” Id. at 2.
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Appellee took pain medication and received stomach injections to prevent
blood clots. Id. at 9-10. She is “likely to require significant future medical
intervention.” Id. at 2. Despite Appellant’s argument otherwise, the jury
could have reasonably found Appellee is at risk for developing serious pain
and deformities based on her injury. See Gaydos v. Gaydos, 693 A.2d
1368, 1371 (Pa. Super. 1997) (“The fact finder is free to believe all, part, or
none of the evidence and [this] Court will not disturb the credibility
determinations of the [trial] court”). Although Appellee eventually returned
to work, the evidence showed she was bedridden for weeks and missed her
summer classes due to her injury. See Trial Ct. Op. at 10. The molded
verdict of $654,701.62,12 including delay damages, will compensate
Appellant for her expenses, injuries, pain and suffering, and risk of future
harm.
While this verdict exceeded out-of-pocket expenses, it “does not shock
[this Court’s] sense of justice when considering” these factors. See
Bennyhoff v. Pappert, 790 A.2d 313, 321 (Pa. Super. 2001) (affirming
trial court’s denial of remittitur and holding verdict was not excessive—even
though it was 120 times greater than plaintiff’s medical expenses—when
considering her “previously active lifestyle, her multiple treatments and
surgeries, and her relative youth at the time of the accident”).
12
As we discuss infra, the trial court miscalculated the total amount of
damages, and we modify it.
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Appellant emphasizes Dr. Meyr’s statement, “Thankfully it does not
appear as though any [future] complications have developed to my
knowledge yet,” and that Appellee is “[d]oing well without signs of
complications.” Appellant’s Brief at 32. However, as noted supra, Appellant
does not address Dr. Meyr’s opinion that Appellee “is certainly at risk for the
future development of [resultant deformities] at some point in the future,
especially considering her young age at the time of the injury.” Expert Rep.
of Andrew J. Meyr, 3/22/13, at 2.
Finally, we sua sponte review the amount of damages entered by the
trial court. As stated above, the jury found Appellee had damages of
$725,000, but also found her 10% negligent, and thus Appellee’s award was
reduced to $652,500. Appellee subsequently requested delay damages,
and on December 18, 2013, the court awarded delay damages of $2,201.62.
However, the court’s order misstated the underlying jury award as
$652,000, and accordingly miscalculated the total damages as
$654,201.62. Because this error is patently obviously, we modify the total
judgment to the correct amount of $654,701.62. See Braun v. Wal-Mart
Stores, Inc., 24 A.3d 875, 981-82 (Pa. Super. 2011) (per curiam), aff’d,
106 A.3d 656 (Pa. 2014).
Based on the foregoing, we discern no merit to Appellant’s arguments
that the trial court erred in its evidentiary rulings, its charge to the jury, and
its denial of remittitur. We therefore affirm the trial court’s July 25, 2013
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verdict entered in favor of Appellee, but correct the court’s patent
mathematical error.
Judgment as modified affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2015
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