Opinion
No. 1488 C.D. 2012
06-10-2013
Scott Cooper v. City of Philadelphia v. Ho Seung Hong, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Ho Seung Hong (Hong) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), which denied Hong's post-trial motion for a new trial or judgment non obstante veredicto (n.o.v.). Hong filed the post-trial motion as a result of the trial court's verdict directing him to indemnify Appellee City of Philadelphia (City) for damages that the trial court awarded to Appellee Scott Cooper (Plaintiff) in his negligence action against the City. For the reasons set forth below, we now affirm.
On March 3, 2010, Plaintiff filed a complaint against the City in the trial court, raising a cause of action for negligence. (Reproduced Record (R.R.) at 28a.) Specifically, Plaintiff alleged that he stepped into a hole in a sidewalk "adjacent to the property having the address 2461 East Memphis Street," and, consequently, tripped and fell. (R.R. at 28a-32a.) He further alleged that the City failed to repair the hole or otherwise permitted the hole to exist in the sidewalk. (Id.) As a result of the fall, Plaintiff alleged that he sustained serious injuries, inter alia, to his right foot and right knee. (Id.) On May 6, 2010, the City filed a joinder complaint, joining Hong as an additional defendant. (Id. at 34a.) The City alleged that Hong was the owner of the property at 2461 East Memphis Street, where Plaintiff purportedly fell. (Id. at 35a.) Consequently, the City demanded contribution and/or indemnification from Hong in the event that a judgment was rendered in Plaintiff's favor. (Id. at 35a-36a.) The matter proceeded to compulsory arbitration. On May 11, 2011, a panel of arbitrators rendered an award, finding in favor of the City and Hong and against the Plaintiff. (Certified Record (C.R.), Item No. 25, Report and Award of Arbitrators.) On June 8, 2011, Plaintiff appealed from the arbitrators' award, demanding a non-jury trial. (C.R., Item No. 26.) On June 14, 2011, pursuant to Pa. R.C.P. No. 1311.1, relating to procedure on appeal and admission of documentary evidence, Plaintiff stipulated to $25,000 as the maximum amount of damages recoverable upon the trial of the appeal from the arbitration award. (C.R., Item No. 27.)
Plaintiff/Appellee Scott Cooper is not participating in the instant appeal.
On March 5, 2012, the trial court held a bench trial. (R.R. at 139a.) At the outset, the City's attorney informed the trial court that Plaintiff and the City had settled for $25,000 and that, as a result of the settlement, the City sought indemnification from Hong. (Id. at 142a.) In support of its indemnification claim, the City offered Plaintiff's testimony. Plaintiff testified that on or about September 18, 2008, between 9 p.m. and 10 p.m., as he was walking to a store, he fell as a result of a hole in a sidewalk. (Id. at 148a-49a, 150a, 157a.) Specifically, he testified that he fell on Letterley Street, where it intersects with Memphis Street. (Id. at 147a-48a, 178a-79a.) According to Plaintiff's testimony, he was communicating in sign language with his girlfriend immediately prior to the fall. (Id. at 149a-50a.) Consequently, he did not see the hole. (Id. at 152a.) Plaintiff testified that the fall caused injuries to his right foot and right knee. (Id. at 151a.) Subsequent to the fall, Plaintiff testified, he went home. (Id. at 157a.) He further testified that his sister took him to Northeast Hospital the next day, because he "was in a lot of pain." (Id. at 158a.) Plaintiff also testified that his foot injury specifically limited his walking and affected his employment. (Id. at 169a, 171a-72a.) He testified that the pain in his right foot continues to trouble him. (Id. at 175a.) During the testimony, the City also moved two photographs of the hole into evidence. (Id. at 153a-56a.)
We note that Hong's property sits at the corner of Letterly Street and East Memphis Street and that there is a sidewalk on Letterly Street that is adjacent to his property.
On cross-examination, Plaintiff acknowledged that he had a history of medical problems relating to his right knee and foot. (Id. at 183a.) He testified, however, that he had no issues with his right foot prior to the fall. (Id. at 189a.) He also testified that on the night of the fall, he had worn sandals that he described as sliders. (Id. at 197a.) He further testified that he was familiar with the neighborhood and had known about the hole in the sidewalk prior to his fall in 2008. (Id. at 206a, 208a.) Specifically, he testified that the hole had been there for five to ten years. (Id. at 208a-209a.) Indeed, Plaintiff testified that he had walked on Letterly Street many times prior to the fall. (Id. at 208a.)
During cross-examination, the City's attorney objected, on the basis of hearsay and relevance, to Hong's attorney's question to Plaintiff regarding the photographs of the hole. Specifically, Hong's attorney asked Plaintiff whether he questioned his family why the photographs "needed to be taken." (Id. at 194a.) The trial court sustained the objection. (Id.)
Following Plaintiff's testimony, the City, without objection, introduced and moved the admission of documentary evidence, including medical reports and a copy of a deed, dated October 15, 2007, to the 2461 East Memphis Street property. (Id. at 214a-15a.) The deed named Hong as the owner of the property. (Id. at 43a.) The City then rested.
In response, Hong introduced an independent medical examination (IME) report prepared by the City's medical expert. (Id. at 217a.) The City objected to the IME report's introduction, arguing that (1) it belonged to the City because the City commissioned and paid for it, and (2) Hong failed to list it on his pretrial memorandum. (Id. at 217a-219a.) The trial court sustained the City's objection to the IME report on the basis that Hong failed to meet the requirements of Pa. R.C.P. No. 1311.1(b). (Id. at 219a.) Thereafter, the trial court rendered its ruling from the bench:
Based on the evidence presented the [trial court] finds that the plaintiff sustained an injury to his right knee, right lower leg and his foot area. The [trial court], based on the evidence of record, concludes that the City, and the [P]laintiff's testimony, proved by a preponderance of the evidence, that there was a defective
condition on the premises of the defendant/additional defendant, Ho Seung Hong[,] consisting of poorly maintained sidewalk.(Id. at 230a (emphasis added).) The trial court ultimately found in favor of the City on its indemnification claim against Hong, directing Hong to indemnify the City in the amount of $17,352.25. (Id.) Following the verdict, Hong filed a motion for post-trial relief. Hong, inter alia, requested judgment n.o.v. or a new trial, arguing that the weight of the evidence was insufficient to support the trial court's verdict. (Id. at 234a-235a.) The trial court issued an order, denying Hong's post-trial motion. (Id. at 240a.) Hong appealed the trial court's order to this Court.
The trial court issued an opinion in support of its order in accordance with Pennsylvania Rule of Appellate Procedure 1925(a). In the opinion, the trial court, in part, addressed Hong's argument for a new trial based on the weight of the evidence and evidentiary challenges. With regard to the weight of the evidence, the trial court reasoned:
In this matter, the weight of the evidence presented to this Court was sufficient to support a verdict against [Hong]. As the fact finder, [the trial court] found that the evidence showed [Hong] owned the property at 2461 East Memphis Street and had so, at least, since 2007. At times during the [P]laintiff's testimony, he did seem to have difficulty recalling the exact street address and date of his fall. However, such memory lapses are not enough to merit a new trial. As stated by the Pennsylvania Supreme Court in [Armbruster v. Horowitz, 572 Pa. 1, 813 A.2d 698 (2002)], "a trial judge cannot grant a new trial because of mere conflict of testimony." [Armbruster, 572 Pa. at 9, 813 A.2d at 702.] There is ample testimonial evidence and photographic evidence in the record to show that [P]laintiff's injury occurred at 2461 [East] Memphis Street.
Further, Plaintiff's medical records indicate that he was injured on or about September 18, 2008. Not knowing whether [. . . P]laintiff's injury occurred on the 17th or 18th of September does not create such an injustice as to compel [the trial court] to grant a new trial. There was enough evidence produced to conclude that [. . . P]laintiff's injury did occur in September 2008 at 2461 [East] Memphis Street, which, at the time, was owned by [Hong].(C.R., trial court's opinion at 5-6.)
The trial court next addressed Hong's evidentiary challenges. First, the trial court concluded that Hong's argument that it had erred in sustaining the City's objection to the question about the photographs was without merit. (Id. at 6.) Specifically, the trial court reasoned that neither the City's objection nor the trial court's ruling prevented Hong's attorney from asking Plaintiff questions about the reasons the photographs were taken. (Id. at 6.) In fact, the trial court concluded that Hong's attorney made a strategic decision to cease questioning Plaintiff about the photographs of the sidewalk. (Id.) Second, the trial court concluded that it properly barred Hong from introducing the IME report at trial, because he failed to comply with the requirements of Pa. R.C.P. No. 1311.1(b). Specifically, the trial court reasoned that Hong failed to provide to the parties a written notice of his intention to offer the IME report "at trial at least 20 days from the date [the] appeal is first listed" for trial. (Id. at 6-7.)
On appeal, Hong argues that the trial court abused its discretion in refusing to grant him a new trial when the weight of the evidence indicates that he neither had a duty to repair the sidewalk nor had notice of the hole therein. He also argues that the trial court erred in disallowing the introduction of the IME report into the record. Lastly, Hong argues that the trial court erred in sustaining the City's objection to his attorney's question to Plaintiff about whether Plaintiff asked his family why the photographs of the sidewalk on Letterly Street were taken.
This Court's standard of review of a trial court's denial of a motion for post-trial relief is limited to a determination of whether the trial court abused its discretion or committed an error of law. Ryals v. City of Philadelphia, 848 A.2d 1101, 1103 n.3 (Pa. Cmwlth. 2004); Williams v. Se. Pa. Transp. Auth., 741 A.2d 848, 853 n.3 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 680, 759 A.2d 925 (2000).
To the extent that Hong challenges the trial court's refusal to grant judgment n.o.v. in his brief, we decline to address that challenge. As the City aptly points out, Hong waived a right to request judgment n.o.v. when he failed to move for directed verdict at trial. Dep't of General Servs. v. U.S. Mineral Prods. Co., 927 A.2d 717, 725 (Pa. Cmwlth. 2007) (reasoning that "our Supreme Court requires a motion for directed verdict during trial as a prerequisite to a posttrial motion for JNOV based on the state of the evidence"), aff'd, 598 Pa. 331, 956 A.2d 967 (2008).
We first address Hong's contention that a new trial is warranted because the evidence does not support the trial court's verdict with regard to duty and notice. In this Commonwealth, "a weight of the evidence claim is primarily addressed to the discretion of the judge who actually presided at trial." Armbruster v. Horowitz, 572 Pa. 1, 8-9, 813 A.2d 698, 702 (2002). "[A] new trial should be granted only in truly extraordinary circumstances, i.e., 'when the [fact-finder's] verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.'" Id. at 9-10, 813 A.2d at 703 (quoting Cmwlth. v. Brown, 538 Pa. 410, 435, 618 A.2d 1177, 1189 (1994)). Appellate courts are "bound by the credibility determinations of the trial court," and a judge in a bench trial, as "the finder of fact[,] is [the] sole judge of credibility and is free to believe all, part, or none of the evidence." In re Funds in Possession of Conemaugh Twp. Supervisors, 562 Pa. 85, 89-90, 753 A.2d 788, 790 (2000). "[A] mere conflict in testimony will not suffice as grounds for a new trial." Elliott v. Ionta, 869 A.2d 502, 504 (Pa. Super. 2005). In ruling on a motion for new trial, a court must review all the evidence. Abbott v. Onopiuk, 437 Pa. 412, 415, 263 A.2d 881, 883 (1970). The evidence must be viewed in a light most favorable to the verdict winner. Dep't of General Servs., 927 A.2d at 726.
In the context of a new trial, our Supreme Court, in Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000), noted that "[a]n 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." Harman, 562 Pa. at 469, 756 A.2d at 1123. "A finding by an appellate court that it would have reached a different result than the trial court does not constitute a finding of an abuse of discretion." Id., 756 A.2d at 1123.
The City, a local agency, is subject to the provisions of Section 8542(b) of the Judicial Code (Code), 42 Pa. C.S. § 8542(b)(7), which provides that a local agency may be liable for injuries where the injuries are caused by
See Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995).
[a] dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority
to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable.(Emphasis added.) Also, the injured party must show that damages would be recoverable under common law. 42 Pa. C.S. § 8542(a)(1); Lockwood v. City of Pittsburgh, 561 Pa. 515, 519-20, 751 A.2d 1136, 1139 (2000).
In Pennsylvania, "a property owner has the primary duty of keeping the sidewalk in front of his property in repair, and the city's liability to see that the sidewalk is left in repair is secondary." Restifo v. City of Philadelphia, 617 A.2d 818, 820 (Pa. Cmwlth. 1992) (emphasis added). "The difference between primary and secondary liability is not based on a difference in degrees of negligence . . . . It depends on a difference in character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured persons." Id. (omission in original; quoting Builders Supply Co. v. McCabe, 366 Pa. 322, 326, 77 A.2d 368, 370 (1951)).
Here, it is undisputed that Hong was the owner of the property located at 2461 East Memphis Street when Plaintiff tripped and fell in September 2008. Indeed, as the trial court found on account of the admitted copy of the deed, Hong has been the owner of the property since October 15, 2007. (C.R., trial court's opinion at 4-5.) The trial court also found that the hole in the sidewalk had existed for at least five or at most ten years prior to Plaintiff's fall. (Id. at 4.) Based on these findings, which are supported by the record, we agree with the trial court that Hong should have known about the existence of the hole in the sidewalk. In viewing the evidence in a light most favorable to Plaintiff and the City, we conclude that the trial court did not abuse its discretion in denying Hong a new trial. Specifically, contrary to Hong's argument, the weight of the evidence in this case indicates that Hong actually owned the property adjacent to which Plaintiff's injury occurred, and thus had at least constructive knowledge of the hole in the sidewalk, which he failed to repair. As a result, Hong was primarily liable for Plaintiff's injuries.
To the extent Hong argues that Plaintiff's injuries were not caused by the fall, we disagree. Here, the trial court as the finder of fact found that the "City presented testimonial evidence that the plaintiff was injured on or about September 18, 2008" as a result of his fall on Letterly Street. (Id.) Additionally, our review of the entire record also confirms that Plaintiff provided sufficient testimonial and documentary evidence, i.e., medical reports, to demonstrate that his injury occurred as a result of the fall. We, therefore, conclude that the trial court's decision is not "contrary to the evidence as to shock one's sense of justice." Armbruster, 572 Pa. at 9-10, 813 A.2d at 703.
We next address Hong's argument that the trial court erred in barring him from introducing the IME report under Pa. R.C.P. No. 1311.1(b), which provides in pertinent part:
(b) if the plaintiff has filed and served a stipulation as provided in subdivision (a), any party may offer at trial the documents set forth in Rule 1305(b)(1). The documents offered shall be admitted if the party offering
them has provided written notice to every other party of the intention to offer the documents at trial at least twenty days from the date the appeal is first listed for trial. The written notice shall be accompanied by a copy of each document to be offered.(Emphasis added.) Here, we agree with the trial court that Hong failed to provide a written notice to either Plaintiff or the City of his intention to use the IME report at least twenty days from the date the appeal was first listed for trial. As a result, Hong failed to adhere to the plain language of Rule 1311.1(b). The trial court, therefore, did not err in prohibiting Hong from introducing the IME report.
Pa. R.C.P. No. 1305(b)(1) provides in pertinent part:
The following documents shall be admitted into evidence if at least twenty days' notice of the intention to offer them was given to every other party accompanied by a copy of each document to be offered:
. . .
(iv) expert reports and descriptions of expert qualifications[.]
Based on our disposition of this issue, we need not address whether Hong was entitled to use the IME report that was created by the City's expert and paid for by the City. --------
Finally, we address Hong's argument that the trial court erred in sustaining the City's objection to his attorney's question to Plaintiff about the reasons the sidewalk photographs were taken. Hong also argues that the trial court in particular precluded him from questioning Plaintiff about the sidewalk photographs. We disagree.
"In general, questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a finding of abuse of discretion." Carpenter v. Pleasant, 759 A.2d 411, 414 (Pa. Cmwlth. 2000), appeal denied, 566 Pa. 668, 782 A.2d 549 (2001). "The improper exclusion of relevant material evidence is, however, grounds for a new trial." Id. The fundamental consideration in determining the admission of evidence is whether the evidence is relevant to the fact to be proven. See Pa. R.E. 402. Evidence is considered relevant if it tends to make the fact at issue more or less probable than it would be without the evidence. Pa. R.E. 401. "All relevant evidence is admissible, except as otherwise provided by law." Carpenter, 759 A.2d at 414. "Evidence that is not relevant is not admissible." Id. Generally, hearsay evidence is not admissible, unless it falls under one of the enumerated exceptions. Pa. R.E. 802. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa. R.E. 801(c).
Here, as contained in the hearing transcript, the following exchange between Hong's attorney and Plaintiff prompted the argument sub judice:
Hearing Interpreter:
My mom told my brother.
[Hong's attorney:]
Q. Did you ask them why photos needed to be taken?
[The City's attorney:]
Objection, Your Honor. I mean this is bordering on hearsay with respect to the other parties not being present. And also, Your Honor, if I may, there's no relevance as to him asking why to his mother and brother as to taking the photographs.
[The trial court:]
Sustained.
[Hong's attorney:]
Q. Did you say anything to your family about the photos?
Hearing Interpreter:
The interpreter is requesting you to repeat the question, please.
[Hong's attorney:]
Q. Yes. When the photos were taken, Mr. Cooper, did you say anything about the photos to your family?
A. Explain again, please.(R.R. at 194a (emphasis added).)
Hearing Interpreter:
Could you repeat that question?
[Hong's attorney:]
I'll move on.
First, we observe that the transcript indicates that Hong's attorney's question to Plaintiff about whether he asked his family why the sidewalk photographs needed be taken did not constitute hearsay. Indeed, the question merely called for a "yes or no" response, which may have led to a hearsay question thereafter. Regardless, a hearsay objection was premature in this instance. Second, we observe the City's objection was couched more in terms of relevance than hearsay. As the City's attorney stated during the objection, "there [was] no relevance as to him asking why to his mother and brother [took] the photographs." Id. We agree. In fact, Hong did not proffer or attempt to proffer any reason for why the question was relevant until he submitted his brief to this Court.
In his brief, Hong argues that the question was "relevant and material to the issue of whether [Plaintiff] was being truthful in light of his inability to remember the specific date and location of his slip and fall injury." (Appellant's br. at 18.) We disagree. A question about the reasons why the photographs were taken would not prove where or when Plaintiff fell and thus was immaterial for that purpose. Indeed, the issue of where and when Plaintiff fell was adequately addressed by Plaintiff's testimony and related documentary evidence. Specifically, Plaintiff testified at the hearing that he sustained an injury as a result of his tripping and falling on Letterly Street in or around September 18, 2008. We, therefore, conclude that the objected-to question would not have led to relevant material evidence, and as a result, the trial court did not abuse its discretion in sustaining the City's objection.
We also agree with the trial court that Hong's argument that the trial court somehow precluded him from questioning Plaintiff about the photographs of the sidewalk is without merit. As the hearing transcript demonstrates, Hong's attorney voluntarily waived all rights to question Plaintiff about the reasons why the sidewalk photographs were taken when the attorney decided to "move on." (R.R. at 194a.)
Accordingly, we affirm the trial court's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 10th day of June, 2013, the order of the Court of Common Pleas of Philadelphia County is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge