Monaco, K. v. Temple University

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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