Dunlap, M. v. Ridley Swim Club

J-A16029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARYANN C. DUNLAP IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RIDLEY PARK SWIM CLUB; JOHN W.

HARPER, INC. AND JOHN W. HARPER,

JR., T/A HARPER ASSOCIATES; HARPER

ASSOCIATES MANAGEMENT, LLC;

WILLIAM BARONI AND MARGARET

STEUBER; MARK WARHOLIC; AND GARY

AND BRIANNA SALAS,

Appellants No. 3199 EDA 2014

Appeal from the Judgment Entered October 16, 2014

In the Court of Common Pleas of Delaware County

Civil Division at No(s): 12-5415

BEFORE: LAZARUS, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 04, 2015

Ridley Park Swim Club (“Ridley Park”) appeals from the judgment

entered on October 16, 2014. After careful consideration, we vacate and

remand.

The factual background and procedural history of this case are as

follows. On June 24, 2009, Maryann C. Dunlap (“Dunlap”) was swimming at

Ridley Park’s pool. While she was leaving Ridley Park’s property, a tree fell

on her and caused serious injuries. Before the accident, the tree was

located on property owned by Harper Associates (“the Harper property”).

The tree was between 15 and 25 feet from the property line separating the

Harper property and Ridley Park’s property and no part of the tree overhung

* Retired Senior Judge assigned to the Superior Court

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Ridley Park’s property. The tree was dead, decaying, and had wild

vegetation growing on it. Harper Associates did not examine the tree or

take any other action to ascertain if the tree posed a hazard to individuals on

either the Harper property or Ridley Park’s property.

On June 25, 2012, Dunlap commenced this action by filing a complaint

against multiple defendants, including Ridley Park and Harper Associates.

On May 23, 2013, the trial court issued a scheduling order which directed,

inter alia, that all expert reports be produced at least 90 days before trial.

Prior to trial, Harper Associates and Dunlap submitted their dispute to

binding high/low arbitration. The arbiter awarded Dunlap $350,000.00.

After the arbitration award, Dunlap and Harper Associates entered into a pro

rata joint tortfeasor release. Dunlap agreed to accept the $350,000.00 from

Harper Associates in exchange for dropping all claims against Harper

Associates and related parties. The release provided that recovery against

Ridley Park “shall be reduced only to the extent of the pro-rata share of such

damages as may be attributable to [Harper Associates and related

defendants], the alleged tortfeasors hereby released.” Exhibit A to Post-trial

Motion, 3/28/14, at 2.

On January 16, 2014, Dunlap’s facilities management expert, Brian

O’Donel (“O’Donel”), authored an expert report in which he opined that

Harper Associates was responsible for Dunlap’s injuries. That report,

however, was not provided to Ridley Park until after trial commenced. On

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February 12, 2014, O’Donel authored a second expert report in which he

faulted Ridley Park for not examining the trees located on the Harper

property. That report was promptly provided to Ridley Park.

Harper Associates did not participate in the trial that commenced on

March 17, 2014. At trial, Ridley Park objected to O’Donel’s testimony

because his expert reports were produced after the deadline set by the trial

court. The trial court overruled the objection and permitted O’Donel to

testify. On cross-examination, Ridley Park questioned O’Donel regarding the

January 16 expert report. Dunlap objected and the trial court sustained the

objection. At the close of Dunlap’s case-in-chief, the trial court ruled that

Harper Associates would not appear on the verdict form. The trial court

reasoned that Ridley Park would be unable to prove a prima facie case of

negligence against Harper Associates because Ridley Park did not retain an

expert witness to testify regarding Harper Associates’ negligence.

On March 19, 2014, the jury returned a verdict in favor of Dunlap and

against Ridley Park in the amount of $750,000.00. On March 28, 2014,

Ridley Park filed a post-trial motion. On October 6, 2014, the trial court

denied the post-trial motion. On October 16, 2014, judgment was entered

in favor of Dunlap and against Ridley Park. This timely appeal followed.1

1

The trial court did not order Ridley Park to file a concise statement of

errors complained of on appeal. See Pa.R.A.P. 1925(b). Nonetheless, on

December 10, 2014, the trial court issued an opinion explaining its rationale

for denying Ridley Park’s post-trial motion.

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Ridley Park presents five issues for our review:

1. Should a new trial be granted where the trial court refused to

submit the negligence of [Harper Associates] to the jury even

though the tree that fell and injured [Dunlap] was owned by

[Harper Associates], was located on property owned and

possessed exclusively by [Harper Associates], and where

[Harper Associates] freely admitted that [it] failed to inspect and

maintain the tree and the property on which it was located?

2. Should a new trial be granted where the terms of a pro rata joint

tortfeasor release required that [Harper Associates’] liability be

determined and apportioned by the jury at trial?

3. Should a new trial be granted where the trial court refused to

permit the jury to apportion any fault to [Harper Associates]

even though [it] had already been adjudged as negligent in the

course of a binding arbitration?

4. Should a new trial be granted where the trial court abused its

discretion by refusing to permit [Ridley Park]’s counsel to cross-

examine [O’Donel] regarding the contents of his earlier

undisclosed report in which he concluded that [Harper Associates

was] solely responsible for [Dunlap]’s accident?

5. Should a new trial be granted where the trial court abused its

discretion by permitting [O’Donel] to testify even though his

report was produced in blatant violation of the [trial c]ourt’s

[s]cheduling [o]rder?

Ridley Park’s Brief at 4-5.

In its first issue, Ridley Park argues that the trial court erred by not

submitting Harper Associates’ alleged negligence to the jury. 2 We review a

2

In her brief, Dunlap implicitly argues that Ridley Park waived this issue for

failing to cite a specific case to the trial court and failing to seek a jury

instruction on Harper Associates’ alleged negligence. See Dunlap’s Brief at 6

nn. 1-2. We conclude that Ridley Park properly preserved this issue for our

review. Ridley Park argued extensively before the trial court that Harper

Associates belonged on the verdict form. See N.T., 3/19/14, at 60 (trial

(Footnote Continued Next Page)

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claim that the trial court erred by including or excluding settling defendants

on the verdict slip for an abuse of discretion. See Hyrcza v. W. Penn

Allegheny Health Sys., Inc., 978 A.2d 961, 968 (Pa. Super. 2009).

Our Supreme Court has held that a defendant has a right to have a

settling defendant appear on the verdict form in order to apportion liability.

Davis v. Miller, 123 A.2d 422, 424 (Pa. 1956). More recently, this Court

has held that Davis only requires a settling co-defendant to appear on the

verdict form upon showing of a prima facie case of negligence. See

Herbert v. Parkview Hosp., 854 A.2d 1285, 1290 (Pa. Super. 2004),

appeal denied, 872 A.2d 173 (Pa. 2005). Thus, the question in this case is

(Footnote Continued)

court noting Ridley Park’s standing objection to the verdict form). As the

trial court determined Harper Associates would not appear on the verdict

form, there was no reason to submit proposed jury instructions relating to

Harper Associates’ alleged negligence. We note that Ridley Park is not

challenging, per se, a specific jury instruction on appeal but, instead, raises

a broader claim concerning the propriety of placing Harper Associates’

negligence before the jury in passing on Ridley Park’s role in causing

Dunlap’s injuries. Furthermore, there is no requirement that a litigant cite a

specific case to the trial court in order to argue its applicability on appeal.

Instead, a litigant is only required to make the same substantive argument

to the trial court as on appeal in order to preserve the issue. Cf. Pa. Liquor

Control Bd. v. Willow Grove Veterans Home Ass’n, 509 A.2d 958, 961

(Pa. Cmwlth. 1986), disapproved on other grounds, In re Borough of

Churchill, 575 A.2d 550 (Pa. 1990) (Under Rule 302(a) “[a]n ‘issue’ is a

disputed point or question on which parties to an action desire the court to

decide.”). In this case, Ridley Park raised the substance of its argument to

the trial court, i.e., that Harper Associates should appear on the verdict

form. Accordingly, Ridley Park preserved this issue for our review.

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whether Ridley Park made a prima facie showing of Harper Associates’

negligence.3

The trial court held that Ridley Park failed to prove its prima facie case.

Trial Court Opinion, 12/10/14, at 2. It reasoned that, in order to prove its

prima facie case, Ridley Park was required to call an expert witness to testify

that Harper Associates was negligent. See N.T., 3/19/14, at 41. The trial

court also concluded that the area in question was a “jungle” and, therefore,

there was no legal duty for Harper Associates to inspect the tree. See N.T.,

7/20/14, at 59.

Dunlap argues that Ridley Park failed to prove its prima facie case of

negligence. Like the trial court, Dunlap argues that Ridley Park was required

to present expert testimony that there was a duty for Harper Associates to

inspect the tree, that Harper Associates breached that duty, and that Harper

Associates’ breach of duty was the proximate cause of Dunlap’s injuries.

Dunlap argues that Ridley Park failed to present such expert testimony and,

therefore, it failed to prove its prima facie case. Ridley Park, on the other

hand, argues that it was not required to present expert testimony relating to

Harper Associates’ negligence. Furthermore, Ridley Park argues that, even if

3

Dunlap argues that Ridley Park never seriously pursued its cross-claim

against Harper Associates. A cross-claim, however, was not necessary to

seek apportionment of responsibility. Herbert, 854 A.2d at 1290, citing

Nat’l Liberty Life Ins. Co. v. Kling P’ship, 504 A.2d 1273, 1277-1278

(Pa. Super. 1986).

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it were required to present expert testimony against Harper Associates,

Dunlap’s expert witnesses provided such expert testimony.

It is hornbook law that a prima facie case of “[n]egligence is

established by proving the following four elements: (1) a duty or obligation

recognized by law; (2) a breach of that duty; (3) a causal connection

between the conduct and the resulting injury; and (4) actual damages.”

Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005), appeal denied,

889 A.2d 89 Pa. 2005) (internal quotation marks and citation omitted). Our

Supreme Court has held that expert testimony is required when the subject

matter of the negligence is outside the skill and knowledge of an ordinary

layman. Young v. Commw., Dep't of Transp., 744 A.2d 1276, 1278 (Pa.

2000) (citations omitted).

We first consider whether there was a duty for Harper Associates to

examine the tree and, if so, whether expert testimony was necessary to

reach that conclusion. We conclude that Harper Associates possessed a duty

to visually inspect the tree and that no expert testimony was required to

reach this conclusion. In Barker v. Brown, 340 A.2d 566 (Pa. Super.

1975), this court held

that a possessor of land in or adjacent to a developed or

residential area is subject to liability for harm caused to others

outside of the land by a defect in the condition of a tree thereon,

if the exercise of reasonable care by the possessor (a) would

have disclosed the defect and the risk involved therein, and (b)

would have made it reasonably safe by repair or otherwise. The

reasonable care standard encompasses, at least, a duty to make

a visual inspection. Under some circumstances it may

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encompass more. If the possessor of land in or adjacent to a

developed area knows, or should know, through inspection or

otherwise, that a defect in one of his trees poses an

unreasonable danger to others outside of the land, he is under a

duty to eliminate that danger.

Id. at 569 (internal citations and paragraph breaks omitted).

Under Barker, a landowner has, at a minimum, the duty to visually

inspect trees next to a developed or residential area. No expert opinion was

necessary to establish the duty to visually inspect the trees. As noted in

Barker, in some instances a landowner’s duty extends beyond visual

inspection of trees. Under the circumstances of this case, expert testimony

is necessary to impose a greater duty. Ridley Park’s strategic decision,

however, to forgo pursuit of an enhanced duty does not mean it failed to

prove that Harper Associates had a duty to inspect visually. Instead, it

merely reflects Ridley Park’s decision to proceed on the lower standard

announced in Barker.

Dunlap argues that Barker is inapposite because the area of the

Harper property where the tree was located is undeveloped. Cf. Murtha v.

Joyce, 875 A.2d 1154, 1159–1160 (Pa. Super. 2005) (a property can

include both developed and undeveloped portions). Barker, however, does

not focus on the nature of the land on which the tree is located. Instead, it

focuses upon the adjacent land. This is evident not only by the plain

language of the holding, quoted above, but also by the preceding paragraph.

See Barker, 340 A.2d at 569 (“That tree, once growing in the midst of a

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forest, is no longer the same ‘natural object’ when a city grows around it or

residential areas are developed in proximity to it.”). Thus, under Barker,

the question is whether Ridley Park’s property is developed or undeveloped.

We conclude that the parking lot on Ridley Park’s property is

developed land. See Murtha, 875 A.2d at 1159-1160 (making a legal

determination as to whether land was developed or undeveloped); see also

Drusedum v. Guernaccini, 380 A.2d 894, 895 (Pa. Super. 1977) (parking

lot was developed); Norfolk S. Ry. Co. v. Pub. Util. Com'n, 971 A.2d 545,

548 (Pa. Cmwlth. 2009) (same). As the parking lot was developed, and

Barker holds that a property owner has a duty to at least visually inspect

trees that abut developed property, Ridley Park made a prima facie showing

that Harper Associates had a duty to visually inspect the subject tree.4

Furthermore, even if expert testimony were required to show Harper

Associates possessed a duty to visually inspect the trees, Dunlap’s own

experts provided such testimony. Dunlap called Howard L. Eyre (“Eyre”),

whom the trial court qualified as an expert witness in arboriculture and

related topics. N.T., 3/18/14, at 61. Eyre testified:

4

Dunlap argues that expert testimony was necessary to establish that a tree

25 feet from the property line should have been inspected. Barker,

however, makes no such qualifications. Instead, under Barker, a tree must

be inspected if it could fall and damage property or injure persons located on

adjacent developed or commercial real estate. The tree falling and injuring

Dunlap shows that the tree was close enough to the property line to fall and

injure an individual on Ridley Park’s land.

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Well, any tree in a situation like that needs to be regularly

observed. It’s on a boundary between two properties. Both

owners would have a responsibility to see what’s going on at

that location. And when you have a situation where grapevines

are beginning to load up the plants then they’re [sic] becomes a

real responsibility to care for the trees in a way that they’re not

being - people have to circulate on the site.

Id. at 79. Moreover, O’Donel was asked if he “agree[d] that this particular

tree that we’re talking about was such a tree that required the owner of that

tree to inspect it for hazardous conditions of that tree?” Id. at 148. O’Donel

responded “It could be, yes.” Id.

Dunlap’s arboriculture and facilities management experts, therefore,

testified that Harper Associates had a duty to, at a minimum, visually

inspect the subject tree. As discussed more fully infra, when expert

testimony is necessary to prove a prima facie case, the expert need not be

called by the party relying upon that testimony. Thus, even if expert

testimony were required to prove Harper Associates possessed a duty to

visually inspect the tree, O’Donel and Eyre’s testimony satisfied this

requirement.

Having determined that Ridley Park made a prima facie showing that

Harper Associates possessed a duty to inspect the subject tree, we turn to

whether Ridley Park made a prima facie showing that Harper Associates

breached that duty. There was no need for expert testimony on this

question. Whether a tree was visually inspected is not a question that

requires specialized knowledge or training. At trial, one of Harper

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Associates’ principals testified that Harper Associates never visually

inspected the subject tree. N.T., 3/18/14, at 29-30. From this testimony

alone, the jury could have determined that Harper Associates breached its

duty to visually inspect the trees adjacent to the Ridley Park property. See

also Dunlap’s Brief at 6 n.3 (“It is agreed that Harper [Associates] did not

inspect the subject tree prior to June 24, 2009.”).

Next, we consider whether Harper Associates’ alleged breach caused

the subject tree to fall.5 For this question, we agree with the trial court and

Dunlap that expert testimony was required. It requires specialized

knowledge and training to determine if the tree, when it fell, was in such

condition that visual inspection alone should have revealed a problem.

Thus, we turn to whether there was sufficient expert testimony presented

from which the jury could determine that Harper Associates’ alleged breach

caused the subject tree to fall.

We first note that it is appropriate for Ridley Park to rely upon expert

testimony offered by Dunlap’s expert. Herbert, 854 A.2d at 1290 (evidence

5

To the extent that Dunlap argues Ridley Park is judicially estopped from

arguing that the defect in the subject tree would have been found with a

visual inspection, see Dunlap’s Brief at 6 n.4, that argument is without

merit. “Pursuant to the doctrine of judicial estoppel, a party to an action is

estopped from assuming a position inconsistent with his or her assertion in a

previous action, if his or her contention was successfully maintained.”

Newman Dev. Group of Pottstown, LLC v. Genuardi’s Family Mkt.,

Inc., 98 A.3d 645, 656 (Pa. Super. 2014) (en banc), appeal denied, 676

MAL 2014 (Pa. June 24, 2015) (internal quotation marks and citation

omitted). In this case, Ridley Park’s argument was not successful in the trial

court. Thus, judicial estoppel does not apply.

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was sufficient for settling defendant to appear on verdict slip based upon

plaintiff’s expert’s testimony); see Lombardo v. Gardner, 82 Pa. D. &

C.4th 233, 243-244 (C.C.P. Lawrence 2007); Kol v. Trinh, 2005 Phila. Ct.

Com. Pl. LEXIS 347, *8-10 (June 27, 2005), aff’d, 902 A.2d 988 (Pa. Super.

2006) (unpublished memorandum).

Eyre, Dunlap’s expert, testified:

I think if a non-professional looked at the tree the tree itself

might have looked alive. But you have to take it in context with

the whole site. And if you look at photograph 90 where it shows

that the vines are already pulling down another part of the tree,

I think even to a lay-person that does not look normal.

N.T., 3/18/14, at 91. Eyre later testified that “the grapevine pulling down on

the limbs of other trees and putting pressure on the trees, downward

pressure” would have been “easily observed” by a lay person. Id. at 101.6

We acknowledge that testimony elicited from two witnesses

contradicts Eyre’s testimony. Specifically, John Cardow (“Cardow”), Ridley

Park’s president at the time of the incident, testified that he viewed the tree

after it fell. N.T., 3/19/14, at 84. Cardow testified that he believed the tree

looked like a “[l]ive, healthy tree with tree branches and green leaves all

6

Dunlap argues that Eyre “waffled” on whether a layperson would have

noticed a problem with the tree during a visual inspection. See N.T.,

3/18/15, at 92 (“The black locust stood for many years as a dead tree

completely encased in grapevines that appear to the non-professional

observer as being a live, healthy tree.”). This, however, was a quote from

Eyre’s expert report. In his live testimony, Eyre indicated that a layperson

would have noticed a problem with the tree. Thus, Eyre’s testimony

presented a credibility question for the jury to determine.

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over the parking lot.” Id. at 85. He further testified that he parked in the

lot where the tree fell, yet he “didn't notice any trees that seemed like they

would be a problem.” Id. at 89; see also id. at 100-101 (Cardow disagreed

with Eyre’s conclusion that the subject tree was dead). Finally, at his

deposition (a transcript of which was read at trial), Cardow testified that he

checked the trees on the Harper property on a monthly basis for the

previous six or seven years. N.T., 3/18/14, at 23. He testified that on

approximately six occasions he found trees he believed to be dangerous.

Id. The tree that fell and injured Dunlap, however, was not one of the trees

that Cardow found to be in a dangerous condition. Id. Similarly, Harper

Associates’ principal testified that he viewed the tree after it fell and believed

it to be healthy. Id. at 36.

Consistent with the foregoing testimony, the jury could have

reasonably found, that even if Harper Associates visually inspected the

subject tree it would not have noticed the tree was a danger to individuals

on Ridley Park’s property. The conflict in the testimony, however, was a

factual question that must be decided by the jury. The evidence was not

such that the trial court could determine, as a matter of law, that Harper

Associates’ failure to visually inspect the subject tree was not the proximate

cause of the tree falling. Ridley Park, therefore, made a prima facie

showing, based upon Eyre’s testimony, that Harper Associates would have

(or should have) noticed the subject tree was a danger if it visually

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inspected the tree prior to the incident. Finally, it is undisputed that the

fallen tree caused Dunlap’s injuries.

We therefore conclude that Ridley Park made a prima facie showing

that Harper Associates was negligent. Thus, the trial court abused its

discretion by not including Harper Associates on the verdict form and

permitting the jury to apportion responsibility between Ridley Park and

Harper Associates. This error clearly prejudiced Ridley Park because, if the

jury determined that Harper Associates bore some responsibility for Dunlap’s

injuries, the damage award would have been reduced in accordance with the

pro rata joint tortfeasor release. Thus, Ridley Park is entitled to a new trial.

Having determined that Ridley Park is entitled to a new trial, we need not

address its remaining issues. See Banohashim v. R.S. Enters., LLC, 77

A.3d 14, 27 n. 6 (Pa. Super. 2013), quoting Commonwealth v. Oakes,

392 A.2d 1324, 1326 (Pa. 1978) (“The grant of a new trial wipes the slate

clean of the former trial.”).

Judgment vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/4/2015

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