Brownlee, J. v. Home Depot

J-A17017-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JONATHAN BROWNLEE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

HOME DEPOT U.S.A., INC., :

:

Appellant : No. 3232 EDA 2019

Appeal from the Judgment Entered October 7, 2019

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): No. 180400537

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.: Filed: October 22, 2020

Home Depot U.S.A., Inc. (Home Depot) appeals from the judgment1

entered in the Philadelphia County Court of Common Pleas, following a jury

trial, in favor of Jonathan Brownlee (Appellee) in this premises liability action.

Home Depot raises a number of claims on appeal, challenging (1) the trial

court’s denial of its pretrial motion for summary judgment and motion for

compulsory nonsuit, (2) the court’s alleged failure to remove a juror, (3) the

____________________________________________

1 Home Depot’s notice of appeal purports to appeal from the October 2, 2019,

order denying its post-trial motions. See Notice of Appeal, 10/30/19. This is

improper. “[A]n appeal to this Court can only lie from judgments entered

subsequent to the trial court’s disposition of any post-verdict motions, not

from the order denying post-trial motions.” Johnston the Florist, Inc. v.

TEDCO Const. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc).

Nevertheless, because judgment was subsequently entered on the docket, we

may treat the notice of appeal as filed on that date. See Pa.R.A.P. 905(a)(5)

(“A notice of appeal filed after the announcement of a determination but

before the entry of an appealable order shall be treated as filed after such

entry and on the day thereof.”). We have corrected the caption accordingly.

J-A17017-20

court’s evidentiary rulings compelling Home Depot to produce a witness and

precluding certain physical evidence, (4) the court’s jury instructions, and (5)

the court’s refusal to include the issue of factual cause on the jury verdict

sheet. Because we conclude the trial court committed reversible error when

it removed the issue of factual cause from the jury, we vacate the judgment,

and remand for a new trial.

On April 4, 2018, Appellee filed this negligence action against Home

Depot2 seeking recovery for injuries he suffered as a result of a February 2017

slip and fall at the Home Depot store located at 4660 E. Roosevelt Boulevard

in Philadelphia. Appellee alleged he “slipped and fell on a piece of wood

located on the floor/aisle of . . . the premises,” which caused him to suffer

“severe and permanent bodily injury.” Appellee’s Complaint at 4.

The case proceeded through discovery. On January 30, 2019, Home

Depot filed a motion for summary judgment, arguing that it was entitled to

judgment as a matter of law because (1) the piece of wood Appellee slipped

on was an “open and obvious condition,” and (2) Appellee could not prove

Home Depot had “constructive notice” the piece of wood was on the floor.

Home Depot’s Motion for Summary Judgment, 1/30/19, at 4, 5. The trial

court denied the motion on March 14, 2019.

____________________________________________

2 Appellee named two additional defendants — Roosevelt II Associates, LP and

Paramount Northeast Tower, LLC — which he alleged were the owners or

lessors of the premises. Appellee’s Complaint, 4/4/18, at 3-4. Both

defendants, however, were dismissed from the case when the trial court

granted their pretrial motion for partial summary judgment. See Order,

4/17/19. Thus, the trial proceeded solely against Home Depot.

-2-

J-A17017-20

A jury trial commenced on May 22, 2019, with the Honorable Abbe F.

Fletman presiding. The trial court summarized the relevant facts presented

during trial in its December 20, 2019, opinion:

During [Appellee’s] case in chief, he testified that he had

recently started a general contracting business and went to Home

Depot on February 22, 2017 to buy materials for a rehabilitation

project he was working on. He testified he was looking at products

and prices before he slipped and fell. At the time of the fall, he

was in the lumber aisle. The store was empty of customers, and

he saw three Home Depot employees standing and talking in the

vicinity of the accident before he slipped and fell. He also testified

that there was a lumber saw near where the accident occurred.

Patrick Gallagher, a Home Depot specialty assistant store

manager, admitted that Home Depot and its employees are

responsible for maintaining and controlling the store premises,

including the floor where the accident occurred. Mr. Gallagher

further testified that Home Depot employees were trained to

detect and correct slip hazards, but the ones who were in the

vicinity of [Appellee’s] slip and fall failed to do so. Mr. Gallagher

testified that Home Depot employees routinely document

inspections for slip hazards only at 10 a.m. each day, but that

[Appellee’s] accident occurred at 4 p.m. Mr. Gallagher

corroborated [Appellee’s] testimony that the accident occurred

near a lumber saw, adding that he estimated that the saw was 12

to 14 feet from the site of the accident, and that only Home Depot

employees were authorized to use the saw. He further testified

that three Home Depot employees were in the vicinity when

[Appellee] fell.

During Home Depot’s case in chief, Richard Levenberg,

M.D., the defense’s expert witness, testified that [Appellee]

suffered at least some injury as a result of the accident:

Q: And I believe that you did tell this jury that

[Appellee] suffered an injury in this fall, and you've

qualified that as a sprain/strain, contusion?

A: I did.

Trial Ct. Op., 12/20/19, at 1-2 (record citations omitted).

-3-

J-A17017-20

Additionally, we note that during the first day of trial, Juror No. 2 cried

during Appellee’s opening statement and became upset during the videotaped

deposition statement of Appellee’s expert witness. See N.T., 5/22/19, at 26,

37. On the second day of trial, counsel for Home Depot requested the court

excuse Juror No. 2. N.T., 5/23/19, at 4. The trial court denied the motion at

that time, but noted it was “very aware of the situation” and that Home Depot

could raise the motion again if there was any further issue with the juror. Id.

at 5. The record does not reveal any further disruptions from Juror No. 2.

On May 28, 2019, the jury returned a verdict for Appellee and against

Home Depot in the amount of $510,500. Home Depot filed a timely post-trial

motion on June 5th, followed by an amended motion on July 12th. The trial

court conducted argument on August 28, 2019. Thereafter, on October 2nd,

the court entered an order denying Home Depot’s motion for post-trial relief.

Judgment was entered upon praecipe of Appellee on October 7, 2019. This

timely appeal followed.3

Home Depot raises the following issues on appeal:

A. Whether the trial court erred in denying Home Depot’s motion

for summary judgment[?]

B. Whether the trial court erred by allowing Juror #2 to remain

on the jury panel based upon the appearance of juror bias[?]

____________________________________________

3 On October 31, 2019, the trial court ordered Home Depot to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Home Depot complied and filed a Rule 1925(b) statement on November 18th.

The trial court filed an opinion on December 20th.

-4-

J-A17017-20

C. Whether the trial court erred by failing to grant compulsory

non-suit [p]ursuant to Pa.R.Civ.Pro. 230.1[?]

D. Whether the trial court erred by requiring Home Depot to

produce a witness that was not noticed by [Appellee] until late on

the eve of trial[?]

E. Whether the trial court erred in making several evidentiary

rulings which prejudiced Home Depot and denied it a fair trial[?]

F. Whether the trial court erred in charging the jury on negative

inference and failing to charge the jury on factual cause and other

Home Depot requested jury instructions[?]

Home Depot’s Brief at 7.4

Home Depot addresses its first and third issues together. It argues the

trial court erred when it, first, denied Home Depot’s pretrial motion for

summary judgment, and, later, its motion for compulsory non-suit. However,

Home Depot does not distinguish between the two motions, but rather

conflates the arguments. Specifically, it contends it owed no duty to Appellee

because the piece of wood on the floor was an open and obvious condition,

and Appellee failed to prove Home Depot had constructive notice of the

harmful condition. Home Depot’s Brief at 24, 29.

A motion for summary judgment and a motion for a compulsory nonsuit

both require the trial court to determine if the plaintiff presented a prima facie

case for relief. A motion for summary judgment is made pretrial. See

Pa.R.C.P. 1035.2 (“After the relevant pleadings are closed, but within such

____________________________________________

4 Because we are compelled to reverse the judgment and remand for a new

trial, we need not address several of Home Depot’s issues on appeal.

-5-

J-A17017-20

time as not to unreasonably delay trial, any party may move for summary

judgment . . . .”).

Summary judgment is appropriate “when the record clearly shows

that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.” The record is

viewed favorably to the nonmoving party and only when the facts

are so clear that reasonable minds could not differ can a trial court

properly enter summary judgment.

Krepps v. Snyder, 112 A.3d 1246, 1258 (Pa. Super. 2015) (citations

omitted). We reverse an order denying summary judgment “only where it is

established that the court committed an error of law or abused its discretion.”

Id.

A motion for compulsory nonsuit is made after the plaintiff has

presented their case in chief. See Pa.R.C.P. 230.1(a)(1). “The grant of a

nonsuit is proper where, having viewed all evidence in the plaintiff’s favor, the

[trial] court determines that the plaintiff has not established the necessary

elements of his cause of action.” Oliver v. Ball, 136 A.3d 162, 166 (Pa.

Super. 2016). However, this Court has held that “where a defendant presents

evidence following the denial of a motion for nonsuit, the correctness of the

trial court’s denial is rendered a moot issue and unappealable.” Tong-

Summerford v. Abington Mem'l Hosp., 190 A.3d 631, 640 (Pa. Super.

2018). Accordingly, we decline to separately address Home Depot’s challenge

to the court’s denial of its motion for nonsuit.

While the same reasoning may be applied to conclude the denial of a

motion for summary judgment is moot after trial, our research has uncovered

-6-

J-A17017-20

no case law to support this contention. Rather, in Krepps, a panel of this

Court reviewed that very claim, and concluded the trial court did not abuse its

discretion when it denied the plaintiff’s pretrial motion for summary

judgment.5 See Krepps, 112 A.3d at 1257-60. Thus, we proceed to review

the record, in the light most favorable to Appellee (the non-moving party), to

determine whether Home Depot was entitled to judgment as a matter of law,

such that the trial court erred or abused its discretion in denying Home Depot’s

motion for summary judgment. See id. at 1258.

It is well-established that a landowner “is under an affirmative duty to

protect a business visitor not only against known dangers, but also against

those which might be discovered with reasonable care.” Campisi v. Acme

Markets, 915 A.2d 117, 119 (Pa. Super. 2006) (citation omitted). See also

Restatement (Second) of Torts § 343 (“Dangerous conditions known to or

discoverable by possessor”). Nevertheless, “[a] possessor of land is not liable

to his invitees for physical harm caused to them by any . . . condition on the

land whose danger is known or obvious to them, unless the possessor should

anticipate the harm despite such knowledge or obviousness.” Carrender v.

Fitterer, 469 A.2d 120, 123 (Pa. 1983), quoting Restatement (Second) of

Torts § 343A. Moreover,

____________________________________________

5 We note that a litigant should be permitted to challenge, on appeal, a trial

court’s denial of a pretrial motion for summary judgment even after the parties

have proceed to trial and a verdict. If not, a trial court’s unchecked denial of

pretrial relief may result in delayed justice or a waste of judicial resources.

-7-

J-A17017-20

“the mere existence of a harmful condition in a public place of

business, or the mere happening of an accident due to such a

condition is neither, in and of itself, evidence of a breach of the

proprietor’s duty of care to his invitees, nor raises a presumption

of negligence.” In order to recover damages in a “slip and fall”

case such as this, the invitee must present evidence which proves

that the store owner deviated in some way from his duty of

reasonable care under the existing circumstances. This evidence

must show that the proprietor knew, or in the exercise of

reasonable care should have known, of the existence of the

harmful condition. Section 343 also requires the invitee to prove

either that the store owner helped to create the harmful condition,

or that it had actual or constructive notice of the condition.

Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. 1994) (citations

omitted)

Home Depot’s first argument focuses on the alleged open and obvious

condition of the piece of wood lying in the aisle. Home Depot’s Brief at 24.

Home Depot emphasizes “there were no visual obstructions surrounding the

piece of wood [and it was] not concealed from view.” Id. at 25. Furthermore,

it notes that Appellee acknowledged he was not focused on the floor, but

rather was looking at “products he was pricing.” Id. at 25-26, citing N.T.,

5/23/19, at 61-62. Relying on Carrender, Rogers v. Max Azen, Inc., 16

A.2d 529 (Pa. 1940), and Thomas v. Family Dollar Stores of PA, 2018 WL

6044931, at *3 (E.D. Pa. 2018), Home Depot asserts that if Appellee had been

looking where he was walking, the danger of the piece of wood would have

been “readily apparent,” and he could have easily avoided slipping on it.

Home Depot’s Brief at 26-29. Thus, it maintains it owed Appellee “no duty

and is not liable for his injuries.” Id. at 29.

The trial court disposed of this claim as follows:

-8-

J-A17017-20

Home Depot argues that a photograph of [Appellee] shortly after

he fell “clearly establishes” that the piece of wood was open and

obvious, because the piece of wood is in the aisle through which

[Appellee] was walking. This evidence, however, does not

constitute grounds for a non-suit, since reasonable minds can

differ about whether [Appellee] should have seen the wood. It is

not unreasonable for a jury to find that it was Home Depot’s duty

to protect [Appellee] against this condition. Therefore, this Court

did not err in finding that the piece of wood was not an open and

obvious condition as a matter of law.

Trial Ct. Op. at 8-9 (record citations omitted).

We detect no error of law or abuse of discretion on the part of the trial

court. Based on the photos of the piece of wood included in the certified

record, it is evident the wood was thin and approximately the length of a man’s

shoe. See Home Depot’s Motion for Summary Judgment at Exhibit B; Trial

Exhibit List, 6/4/19, at 1-2. The trial court acted within its discretion when it

determined that “reasonable minds [could] differ” as to whether Appellee

should have seen the piece of wood and recognized its danger. Trial Ct. Op.

at 8-9.

The cases Home Depot relies upon do not compel a different result. In

Carrender, the plaintiff slipped on a patch of ice next to her car after leaving

an appointment. Carrender, 469 A.2d at 122. Significantly, the plaintiff

knew the patch of ice was there, but chose to park her car in that spot, despite

the fact there were other spaces in the parking lot free of ice. Id. The

Supreme Court explained that the plaintiff’s “own testimony showed not only

that the existence of the ice was obvious to a reasonably attentive invitee, but

also that [the plaintiff] herself was aware of the ice and appreciated the risk

-9-

J-A17017-20

of traversing it.” Id. at 124. Because the danger “posed by the isolated patch

of ice was both obvious and known,” the Court concluded the defendants

“could have reasonably expected that the danger would be avoided.” Id.

Conversely, here, there was no testimony Appellee saw the piece of wood in

the aisle, but proceeded to step on it anyway. Moreover, based upon the

photos, we cannot say that no two reasonable minds could disagree that the

“danger” of the wood in the aisle was open and obvious. Thus, Carrender

does not compel a different result.

In Rogers, the plaintiff was injured after she alighted a flight of stairs

at a store, and “stumbled or tripped . . . over the end of a half-inch high base

[by] which the banister was anchored to the floor and upon which it rested.”

Rogers, 16 A.2d at 530. In concluding that the defendant/store was entitled

to judgment as a matter of law, the Pennsylvania Supreme Court focused on

the plaintiff’s own contributory negligence. Id. at 531. Indeed, the Court

cited the plaintiff’s testimony, which demonstrated her “thoughtless

inattention to her surroundings and a complete failure to be duly observant of

where she was stepping[.]” Id. Significantly, the Supreme Court

distinguished the facts before it from those cases in which “a less degree of

attention in the placement of feet is required” due to store displays designed

to catch the attention of shoppers. Id. In the present case, Appellee claimed

he was distracted by merchandise so that he did not focus on the floor in front

of him. For that reason, we find Rogers distinguishable.

- 10 -

J-A17017-20

Home Depot also relies upon Thomas, an unpublished federal district

court decision, which is not binding on this Court. See Carbis Walker, LLP

v. Hill, Barth & King, LLC, 930 A.2d 573, 581 n.9 (Pa. Super. 2007)

(“[W]hile federal district court decisions may be persuasive, they are not

binding authority.”). Nevertheless, we conclude that it, too, does not compel

a different result.

In Thomas, the plaintiff was shopping in the detergent aisle of a Dollar

Store, and looking at the shelves to find the detergent she needed. Thomas,

2018 WL 6044931 at *1. “As she rounded the corner of the aisle, [the

plaintiff] encountered a ‘thick, yellow substance’ on the floor, next to a broken

glass bottle.” Id. She slipped on the substance and fell. Id. The district

court concluded the defendant/store owed no duty to the plaintiff because the

substance on the floor was an “open and obvious condition.” Id. at *2. The

court determined the “condition and its danger would have been readily

apparent to a reasonable person” and could have been avoided if the plaintiff

had been paying attention to where she was walking. Id. at *3.

While Thomas appears at first glance to be factually similar to the case

before us, we note, here, the trial court had the opportunity to view pictures

of the “dangerous condition” — the piece of wood lying on the floor. After

viewing the photos, the court determined that reasonable people could

disagree whether the danger posed by the piece of wood lying in the aisle was

so obvious that “both the condition and this risk [would have been] apparent

to and . . . recognized by a reasonable man[.]” See Carrender, 469 A.2d at

- 11 -

J-A17017-20

123, quoting Restatement (Second) of Torts § 343A comment. Indeed, we

agree the “danger” of a small piece of wood on the floor of a lumber store is

less obvious and recognizable than the danger of a slippery substance located

next to a broken glass bottle. Accordingly, we detect no error in the court’s

refusal to find, as a matter of law, that the piece of wood constituted an open

and obvious danger.

Home Depot also argues it was entitled to judgment as a matter of law

because Appellee failed to establish Home Depot had constructive notice of

the dangerous condition. Home Depot’s Brief at 29. It maintains Appellee’s

failure to present any evidence as to “how the piece of wood ended [up] on

Home Depot’s floor or how long the piece of wood was there” defeats his claim.

Id. at 31.

The trial court, however, found Appellee presented sufficient evidence

for a jury to infer Home Depot had actual or constructive notice of the piece

of wood on the floor:

[Appellee] testified that he saw three Home Depot employees in

the vicinity of the accident before he slipped and fell. He also

testified that there was a lumber saw near the accident location.

Moreover, [Peter] Gallagher, a Home Depot assistant store

manager, corroborated [Appellee’s] testimony about the saw,

adding that he estimated that the saw was 12 to 14 feet from the

site of the accident, that there was an employee standing next to

the saw at the time of the accident, and that only Home Depot

employees were authorized to use the saw. In addition, Mr.

Gallagher repeatedly testified that Home Depot employees were

trained to detect and correct slip hazards, but the ones who were

close to the accident location failed to do so. Finally, Mr. Gallagher

testified that Home Depot employees routinely document

inspections for slip hazards at 10 a.m. each day, but [Appellee’s]

- 12 -

J-A17017-20

accident occurred at 4 p.m. Considered in conjunction, this

testimony supports the conclusion that (1) Home Depot knew or

should have known about the dangerous condition created by the

piece of wood, or (2) Home Depot created the dangerous

condition.

Trial Ct. Op. at 10-11.

Again, we agree with the trial court’s ruling. Home Depot focuses on

the lapse of time between the “origin of the defect and the accident,” and

emphasizes that there was no evidence presented as to how or when the piece

of wood ended up on the floor. Home Depot’s Brief at 30. However, the

circumstantial evidence, if credited by the jury, was sufficient to demonstrate

Home Depot should have known of the dangerous condition. Indeed, Appellee

testified that at the time he fell, the “store was empty,” but there were three

employees standing in the immediate area. N.T., 5/23/19, at 20.

Furthermore, assistant store manager Gallagher confirmed there was a lumber

saw, manned by a Home Depot employee, approximately 12 to 14 feet from

the area where Appellee fell. Id. at 85-87, 100. Accordingly, we conclude

the trial court did not err or abuse its discretion in denying Home Depot’s

motion for summary judgment.

Home Depot next challenges the court’s jury instructions. “We review

the trial court’s jury instructions for an abuse of discretion or legal error

controlling the outcome of the case.” Cragle v. O'Brien, 225 A.3d 182, 190

(Pa. Super. 2019) (citations omitted). Moreover, when considering a claim

that the trial court improperly charged the jury, we must bear in mind the

following:

- 13 -

J-A17017-20

“It is well settled that in reviewing a challenge to a jury instruction

the charge, as a whole, must be considered. Furthermore, the

trial court has broad discretion in phrasing the instructions, so

long as the directions given ‘clearly, adequately, and accurately’

reflect the law.” “Error in a charge is sufficient ground for a new

trial, if the charge as a whole is inadequate or not clear or has a

tendency to mislead or confuse rather than clarify a material

issue. A charge will be found adequate unless ‘the issues are not

made clear to the jury or the jury was palpably misled by what

the trial judge said or unless there is an omission in the charge

which amounts to fundamental error.’” Further, “[a] reviewing

court will not grant a new trial on the ground of inadequacy of the

charge unless there is a prejudicial omission of something basic

or fundamental. In reviewing a trial court’s charge to the jury, we

must not take the challenged words or passage out of context of

the whole of the charge, but must look to the charge in its

entirety.” “The harmless error doctrine underlies every decision

to grant or deny a new trial. A new trial is not warranted merely

because some irregularity occurred during the trial or another trial

judge would have ruled differently; the moving party must

demonstrate to the trial court that he or she has suffered prejudice

from the mistake.”

Grove v. Port Auth. of Allegheny Cty., 218 A.3d 877, 887–88 (Pa. 2019)

(citations omitted).

First, Home Depot argues the trial court erred when it failed to charge

the jury on factual cause and removed the issue of factual cause from the jury

verdict sheet.6 Home Depot’s Brief at 60. Although the trial court determined

a finding of factual cause was unnecessary because Home Depot’s expert

witness admitted Appellee suffered some injury, Home Depot insists its expert

did not testify that Appellee was injured by slipping on a piece of wood. Id.

at 64-65. Rather, it maintains “[t]here are multiple ways [Appellee] could

____________________________________________

6This Court reviews challenges to the verdict sheet under the same standard

as challenges to the court’s jury instructions. See Seels v. Tenet Health

Sys. Hahnemann, LLC, 167 A.3d 190, 208 n.5 (Pa. Super. 2017).

- 14 -

J-A17017-20

have accidentally or purposely slipped in the store” and “[t]he causal

connection in this case was for the jury to decide.” Id. at 65-66.

Preliminarily, we note Home Depot’s Statement of Questions Involved

does not include the claim that the court erred in removing the issue of factual

cause from the jury verdict sheet. Home Depot’s Brief at 7 (challenging

“whether the trial court erred in charging the jury on negative inference and

failing to charge the jury on factual cause and other Home Depot requested

instructions”). Pennsylvania Rule of Appellate Procedure 2116 mandates that

“[n]o question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a).

Nevertheless, we note that this particular claim was raised during trial, in post-

trial motions, and in Home Depot’s Rule 1925(b) statement. See N.T.,

5/28/19, at 4-16; Home Depot’s Motion for Post Trial Relief, 6/5/19, at 11-

12; Home Depot’s Concise Statement of Errors Pursuant to Pennsylvania Rule

of Appellate Procedure 1925(b), 11/18/19, at 3. Moreover, the trial court’s

opinion, while focused on the jury instruction question, clearly explains why

the court decided to remove the issue from consideration by the jury. See

Trial Ct. Op. at 19-20. Furthermore, Appellee raises no objection to the

discrepancy in Home Depot’s brief. Thus, we decline to find this issue waived

because Home Depot’s failure to comply with Rule 2116 does not impede our

review. See Phillips v. Selig, 959 A.2d 420, 428 (Pa. Super. 2008)

(overlooking appellant’s failure to specifically challenge grant of summary

- 15 -

J-A17017-20

judgment on one of three causes of action in statement of questions involved

when appellant developed argument for all three in argument section of brief).

As in any negligence action, a plaintiff in a slip and fall case must prove:

(1) the defendant owed a duty to the plaintiff; (2) the

defendant breached that duty; (3) a causal relationship

between the breach and the resulting injury suffered by the

plaintiff; and (4) actual loss suffered by the plaintiff.

Our Supreme Court has defined factual cause “in the ‘but for’

sense, explaining that a defendant’s allegedly wrongful act is a

cause-in-fact if the plaintiff proves that the harm he sustained

would not have happened, but for the defendant’s act.”

Koziar v. Rayner, 200 A.3d 513, 518–19 (Pa. Super. 2018).

In the case sub judice, on the final day of trial, counsel for Appellee

objected to including a factual cause question on the jury verdict sheet. See

N.T., 5/28/19, at 3. Specifically, counsel argued that “[b]oth medical experts

agreed that there is an injury caused by the incident.” Id. Indeed, Home

Depot’s expert, Richard Jay Levenberg, M.D., acknowledged twice during his

deposition testimony that Appellee suffered an injury as a result of the fall:

[Home Depot’s counsel:] And based on the results of your

physical examination, your review of the records, including the

MRI results and other diagnostic studies, did you arrive to a

reasonable degree of medical certainty at an opinion on what

injuries [Appellee] sustained when he allegedly tripped and fell at

Home Depot on February 22, 2017?

[Dr. Levenberg:] Yes. He had a sprain and strain and contusion.

* * *

[Appellee’s counsel:] And I believe you did tell this jury that

[Appellee] suffered an injury in this fall and you’ve qualified that

as a sprain/strain, contusion?

[Dr. Levenberg:] I did.

- 16 -

J-A17017-20

Trial Exhibit List, P-8, Videotape Deposition of Richard Jay Levenberg, M.D.,

5/2/19, at 19, 51-52. Based on Dr. Levenberg’s admission that “there is a

causal connection,” the trial court omitted from the verdict sheet the question

of whether Home Depot’s negligence (assuming the jury found it was

negligent) was a factual cause of Appellee’s injury. N.T., 5/28/19, at 16.

In support of its ruling, the trial court relies upon Andrews v. Jackson,

800 A.2d 959 (Pa. Super. 2002). In that case, the defendant was driving a

moving van, and, after stopping too far into an intersection at a stoplight,

backed up into the plaintiff’s car. Id. at 960. The plaintiff filed a negligence

action. During trial, the defendant’s expert conceded the plaintiff “had

suffered a soft-tissue injury . . . in the accident” but refuted the plaintiff’s

assertion that the accident aggravated a prior condition. Id. at 961. The jury

returned a verdict finding the defendant negligent, but concluded their

negligence was not a substantial factor in causing the plaintiff’s injuries, and

awarded no damages. Id. The trial court subsequently granted the plaintiff’s

motion for a new trial, “finding both parties’ medical experts had agreed that

[the plaintiff] suffered some injury as a result of the accident.” Id. On appeal,

this Court affirmed the trial court’s award of a new trial, concluding:

Where there is no dispute that the defendant is negligent and both

parties’ medical experts agree the accident caused some injury to

the plaintiff, the jury may not find the defendant’s negligence was

not a substantial factor in bringing about at least some of plaintiff’s

injuries. Such a verdict is contrary to the weight of the evidence

adduced at trial.

Id. at 962 (citations omitted).

- 17 -

J-A17017-20

Relying on this language in Andrews, the trial court in the present case

opined:

The issue of the degree of an injury is addressed through

damages, not factual cause. As such, the existence of evidence

tending to show that there were concurrent causes for [Appellee’s]

injury did not compel this Court to charge the jury regarding

factual cause, since [Home Depot’s] expert had conceded this

element of [Appellee’s] claim.

Trial Ct. Op. at 20 (citation omitted). Clearly, the court viewed the evidence

of “concurrent causes” as evidence of degree of injury. Id.

Home Depot argues, however, that “Andrews applies only to motor

vehicle cases.” Home Depot’s Brief at 66. Rather, it contends the decisions

in Daniel v. William R. Drach Co., Inc., 849 A.2d 1266 (Pa. Super. 2004),

and Koziar, supra — both of which involved injuries sustained in a slip and

fall — are more applicable here. We agree.

In Daniel, the plaintiff slipped and fell on the defendant’s loading dock

while he was picking up an 800-pound barrel of scrap metal. Daniel, 849

A.2d at 1266. The plaintiff insisted he fell because the defendant negligently

allowed oil to build up on the floor. Id. At the conclusion of trial, the jury

found the defendant negligent, but that the negligence was not a substantial

factor in causing the plaintiff’s injury. Id. The trial court denied the plaintiff’s

motion for a new trial. Id. at 1266-67.

On appeal, relying on Andrews, the plaintiff argued that the trial court

should have found the jury’s verdict was against the weight of the evidence.

- 18 -

J-A17017-20

Daniel, 849 A.2d at 1268. However, this Court concluded Andrews was

distinguishable:

In Andrews and the other cases that [the plaintiff] cite[s],

the jury’s finding of negligence established that the negligent

operator of the vehicle caused the collision. Whereas those juries’

findings on negligence established that the drivers were liable for

causing the collision, the jury’s decision in this case that [the

defendant] was negligent did not establish that its negligence

caused the alleged accident in which [the plaintiff] injured himself.

This is so because when an auto accident occurs and one

driver is found to be negligent, then absent contributory

negligence, the driver’s negligence is almost invariably

what caused the auto accident. And therefore, if there is an

uncontroverted injury that arose from the auto accident, the jury

must find that the driver’s negligence, which caused the accident,

was also a substantial factor in causing the injury.

Id. (emphasis added).

The Daniel Court, however, explained that Andrews did not stand for

the proposition that “regardless of the factual circumstances, a finding of

negligence combined with an uncontroverted injury automatically requires a

finding that the negligence was a substantial factor in causing the accident

that caused the injury.” Daniel, 849 A.2d at 1268 (emphasis added). Rather,

the Court noted that the defendant, through cross-examination of the plaintiff,

attempted to show that “other factors may have caused [the] accident,”

including the plaintiff’s own actions in attempting to control an 800-pound

drum. Id. at 1269. Therefore, this Court concluded a new trial was not

warranted. Id. at 1273.

In Koziar, the plaintiff was working as a house cleaner at the

defendants’ home when she tripped and fell while exiting the garage. Koziar,

- 19 -

J-A17017-20

200 A.3d at 516. Following trial, the jury found the defendants negligent, but

concluded their negligence was not a factual cause of the plaintiff’s harm. Id.

at 517. The trial court subsequently granted the plaintiff’s motion for a new

trial, concluding the jury’s verdict was against the weight of the evidence

because the medical testimony was uncontested that the plaintiff was injured

in the fall. See id.

This Court, however, reversed on appeal. Koziar, 200 A.3d at 522.

Relying on Daniel, the Koziar Court opined:

In this case, [the plaintiff] provided several different accounts of

how the fall occurred, which the [defendants] presented during

[the plaintiff’s] cross-examination. The jury could have well found

that in one or more of the versions of events provided by [the

plaintiff], the [defendants] were negligent, but ultimately

determined that version was not where or how [the plaintiff] fell

and sustained her injuries. Alternatively, the jury could have

found that while the [defendants] were negligent, it was not their

negligence, but rather [the plaintiff’s] own negligence that caused

her injuries.

Id. at 520–21.

We conclude the facts in the present case are more closely aligned with

those in Daniel and Kozier than those in Andrews. As Home Depot asserts

in its brief, “[t]here are multiple ways [Appellee] could have accidentally or

purposely slipped in the store and the expert did not testify that [Appellee]

slipped as a result of the piece of wood.” Home Depot’s Brief at 65. We agree.

Although Appellee testified he slipped on a piece of wood that was

- 20 -

J-A17017-20

“underneath” his foot,7 one of Home Depot’s employees, Dante Harris, who

was standing nearby provided the following statement:8

I did see [the] man fall, but he did not fall on the piece of wood

that was on the ground. It was nowhere near him and we thought

he passed out because we all saw that the floor was clear from

debris, leaving nothing to fall on.

N.T., 5/23/19, at 106. Thus, Home Depot should have been permitted to

argue to the jury that Appellee failed to prove he slipped on the piece of wood

recovered near the fall. Furthermore, while we agree Dr. Levenberg’s

testimony conclusively established Appellee suffered some injury as a result

of the fall, it did not establish that Appellee fell because he slipped on a piece

of wood on the floor, nor could it. Accordingly, we agree with Home Depot

that the trial court erred when it removed the issue of factual cause from the

jury on this basis. Thus, we are compelled to vacate the judgment and remand

for a new trial.

Lastly, Home Depot argues the trial court erred when it refused to

provide Home Depot’s requested instructions on the issues of “open and

obvious conditions” and “constructive notice.”9 Home Depot’s Brief at 67.

____________________________________________

7 N.T., 5/23/19, at 21.

8 Although Harris did not testify at trial, his statement was marked as an

exhibit and read to the jury. N.T., 5/23/19, at 106.

9 Home Depot preserved its objections to the jury instructions at trial. See

N.T., 5/28/19, at 39-41, 45. See also Pa.R.A.P. 302(b) (“A general exception

to the charge to the jury will not preserve an issue for appeal. Specific

exception shall be taken to the language or omission complained of.”).

- 21 -

J-A17017-20

Home Depot insists the standard instruction, provided by the court, did not

adequately inform the jury on these concepts.10 Id. at 69-70, 72.

We reiterate that a trial court has “broad discretion in phrasing the

instructions, so long as the directions given ‘clearly, adequately, and

accurately’ reflect the law.” Grove, 218 A.3d at 887 (citation omitted).

Moreover, this Court will not grant a new trial based on the “inadequacy of

the charge unless there is a prejudicial omission of something basic and

fundamental.” Id. at 888 (citation omitted).

With respect to the concept of an open and obvious condition, Home

Depot requested the trial court, inter alia, define the term “obvious,” instruct

the jury that a person “must always look where he is going,” and compare a

shopper’s obligation to watch for obstacles when walking to a driver’s

obligation to not get distracted by billboards. See Home Depot’s Proposed

Jury Instructions at ## 19, 23, 23(a), 23(b).11 On the issue of constructive

notice, Home Depot requested the court charge the jury that a property owner

has “actual notice” of a harmful condition only if the plaintiff proves “the

harmful condition was a reoccurring and uncorrected condition,” and that to

____________________________________________

10Although we remand for a new trial on the grounds set forth above, we

nevertheless address this claim, which might arise on remand.

11Although Home Depot’s proposed jury instructions are not included in the

certified record, they are included in Home Depot’s Reproduced Record, and

Appellee does not dispute their accuracy. See Home Depot’s Reproduced

Record at 23a-87a.

- 22 -

J-A17017-20

prove “constructive notice,” Appellee must establish “the harmful condition

existed for such a length of time that in the exercise of reasonable care, the

property owner should have known of its existence.” Id. at ## 21, 22.

Here, the trial court provided the following jury instruction on the issue

of Home Depot’s duty to Appellee:

An owner of land 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 is also required to inspect the

premises and to discover dangerous conditions. An owner of land

is liable for harm caused to invitees by condition on the land 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 land is liable to invitees

for any harm that the owner should have anticipated, regardless

of whether the danger is known and obvious.

N.T., 5/28/19, at 73. This charge mirrors the standard instruction for a land

owner’s duty of care to invitees. See Pa.S.S.J.I. (Civ.) 18.40. Furthermore,

the trial court also instructed the jury to consider Appellee’s negligence, if any,

in determining Home Depot’s potential liability:

Now in this case [Appellee] claims he was injured by . . .

Home Depot’s negligent conduct. In addition, as a defense, Home

Depot claims that [Appellee] was negligent and that his own

negligence was a factual cause in bringing about his harm. So,

the issues you must decide in accordance with the law that I have

given you is, was the defendant, Home Depot, negligent? Was

[Appellee] negligent? Was [Appellee’s] negligent conduct a

factual cause in bringing about his injury?

N.T., 5/28/19, at 71-72.

In its opinion, the trial court explained:

- 23 -

J-A17017-20

These instructions conveyed to the jury that (a) Home Depot did

not owe a duty to protect [Appellee] for open and obvious

conditions, and (b) Home Depot was not liable to [Appellee] to the

extent that [Appellee] himself was negligent. Since Home Depot’s

proposed instructions would merely have served to repeat these

points, they were unnecessarily cumulative, and this Court need

not use them.

* * *

[Moreover, t]hese instructions addressed the points of law in

Home Depot’s proposed instruction, namely, that a business

owner must have actual or constructive notice of a dangerous

condition to be liable for harm caused to invitees. Since Home

Depot’s proposed instruction would have served to simply repeat

these points, they were also unnecessarily cumulative, and this

Court need not use them.

Trial Ct. Op. at 22-23.

Again, we find no abuse of discretion in the trial court’s ruling. See

Cragle, 225 A.3d at 190. The standard instruction properly and sufficiently

instructed the jury that Home Depot would not be held liable for any obviously

harmful conditions which a shopper should recognize. Indeed, Home Depot

does not cite any authority in which an appellate court found error in a trial

court’s instruction because the trial court did not define the term “open and

obvious” for the jury.12 Thus, we agree Home Depot’s proposed instructions

on this issue were superfluous.

With regard to “constructive notice,” Home Depot cites

Commonwealth, Dept. of Transp. v. Patton, 686 A.2d 1302 (Pa. 1997),

for the proposition that “the failure to charge a jury on constructive notice in

a premises liability case constitutes reversible error warranting a new trial.”

____________________________________________

12 Our independent research has similarly uncovered no case law.

- 24 -

J-A17017-20

Home Depot’s Brief at 71. Home Depot’s argument is misleading. In Patton,

the decedent died after a tree limb fell onto her car while she was driving on

a state road. Patton, 686 A.2d at 1303. The plaintiff, the administrator of

the decedent’s estate, presented expert testimony that a tree inspector should

have recognized the danger. Id. The trial court provided the jury with a

general charge on negligence, but refused the Commonwealth’s proposed

charge, which would have instructed the jury that it must determine if the

Commonwealth had “actual or constructive notice . . . of the allegedly

dangerous condition of the highway where [the] accident occurred.” Id. at

1304 (citation omitted). Rather, “the trial court held that no notice, actual

or constructive [was] necessary to activate the Commonwealth’s liability

under 42 Pa.C.S. § 8522(b)(4),” which sets forth exceptions to the

Commonwealth’s sovereign immunity. Id. (emphasis added). Clearly,

Patton is distinguishable from the present case in which the trial court

instructed the jury that Home Depot was liable for Appellee’s harm caused by

a condition on its land if it “knows or by using reasonable care would discover

the condition[.]” N.T., 5/28/19, at 73. Accordingly, Patton is not controlling,

and Home Depot is entitled to no relief on this claim.

- 25 -

J-A17017-20

Because we agree the trial court committed reversible error when it

removed the issue of factual cause from the jury verdict sheet, we vacate the

judgment entered for Appellee and remand for a new trial.13

Judgment vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/20

____________________________________________

13 In light of our disposition, we need not address Home Depot’s claims that

the trial court erred when it (1) permitted Juror #2 to remain on the jury

panel, (2) required Home Depot to produce a witness who was not notified to

attend until the eve of trial, (3) precluded Home Depot from admitting into

evidence the piece of wood which allegedly caused Appellee’s fall, and (4)

subsequently provided a negative inference charge based upon Home Depot’s

failure to produce the evidence. Home Depot’s Brief at 48, 55. We note,

however, that while Home Depot’s failure to make the wood available during

discovery was suspect, it did provide photos of the wood, and Appellee did

not specifically request to inspect the item or file a motion to compel at any

time before trial. See N.T., 5/28/19, at 17-23. Furthermore, after the trial

court granted Appellee’s request to exclude the evidence based on a discovery

violation, the added prejudice of a negative inference charge was

unwarranted. Home Depot did not destroy or fail to provide the evidence;

rather, it turned over the evidence in an untimely manner. We presume,

however, that this claim will be rendered moot during retrial as the piece of

wood has been recovered.

- 26 -