Opinion
J-A17037-15 No. 3074 EDA 2013
10-07-2015
SANTIAGO MARTINEZ Appellant v. TEMPLE UNIVERSITY HOSPITAL-EPISCOPAL CAMPUS AND BARRY CLARK Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered December 16, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 111202680
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Santiago Martinez ("Mr. Martinez"), appeals from the judgment entered in the Philadelphia County Court of Common Pleas, in favor of Appellee, Temple University Hospital-Episcopal Campus ("Hospital") and Barry Clark, in this slip and fall case. We affirm.
On May 23, 2013, at the conclusion of evidence at trial, the court dismissed Barry Clark from the case by agreement of the parties. Mr. Clark is not a party to this appeal.
The relevant facts and procedural history of this case are as follows. On December 22, 2009, at approximately 6:45 a.m., Mr. Martinez exited the Market-Frankford elevated SEPTA train headed toward COMHAR, Inc., a drug and rehabilitation facility in Philadelphia not affiliated with Hospital. To reach his destination, Mr. Martinez walked through a private parking area owned and operated by Hospital located on Hospital's Episcopal campus. While traversing Hospital's property, Mr. Martinez slipped and fell on snow and ice.
On December 21, 2011, Mr. Martinez filed a negligence complaint against Hospital and Barry Clark d/b/a the Degreasers (the company Hospital hired to perform snow removal services), seeking damages for injuries Mr. Martinez sustained in the fall. On March 19, 2013, the Hospital filed a motion in limine to preclude, inter alia, introduction at trial of statements from unidentified declarants. Specifically, the Hospital alleged Mr. Martinez had testified at his deposition that two unidentified nurses called for help after Mr. Martinez's fall and told him about Hospital's inadequate snow removal practices over the years. Mr. Martinez also alleged at his deposition that an unidentified security guard told Mr. Martinez the day after the fall that he had heard about Mr. Martinez's fall from co-workers. Hospital sought to preclude Mr. Martinez from testifying at trial about the unidentified declarants' statements based on hearsay grounds. Mr. Martinez filed a response on March 29, 2013, claiming the unidentified declarants' statements met exceptions to the hearsay rule as present sense impressions and admissions by a party opponent.
On May 20, 2013, prior to trial, the court heard argument on Hospital's motion in limine. Hospital argued the unidentified declarants' statements constituted inadmissible hearsay. Mr. Martinez maintained the statements from the nurses were admissions by a party opponent. The court decided Mr. Martinez's deposition testimony was insufficient to establish that the unidentified nurses were actually Hospital employees. Consequently, the court granted Hospital's motion. Mr. Martinez objected to the court's ruling. Following the objection, the court said it would permit Mr. Martinez to reopen the issue during trial if Mr. Martinez could provide additional evidence to support his position that the unidentified declarants were Hospital employees.
Mr. Martinez did not offer any argument at the hearing on the present sense impression claim or mention the statement made by the security guard.
In addition, Mr. Martinez complained that Hospital's proposed points for charge included a jury instruction on the definition of trespasser and the duty a possessor of land owes to a trespasser. Mr. Martinez sought an offer of proof from Hospital that it had prima facie evidence to support its claim that Mr. Martinez was a trespasser. The court said Mr. Martinez's complaint was premature, and the court would instruct the jury on the definition of trespasser if the evidence presented at trial warranted that charge. Following the hearing, a jury trial commenced.
After the conclusion of the evidence, the court held a charging conference, at which time the court heard arguments regarding whether Mr. Martinez was an invitee, licensee, or trespasser. Hospital argued Mr. Martinez's own testimony confirmed he was a trespasser because Mr. Martinez admitted he was not on Hospital's property to do any business related to Hospital; he was not there to visit a patient; and he was not there for medical treatment. Mr. Martinez complained there was not enough evidence to warrant a trespasser jury instruction where no signs on Hospital's property alerted the public not to pass through, and the parking lot attendant did not stop Mr. Martinez. Rather, Mr. Martinez suggested he was either a licensee or invitee. Ultimately, the court determined the evidence warranted jury instructions only on the definitions of trespasser and licensee. The court also included special interrogatories on the verdict sheet asking the jury to determine as a threshold matter whether Mr. Martinez was a trespasser or licensee; Mr. Martinez objected to including "trespasser" on the verdict sheet. On May 23, 2013, the jury returned a verdict in favor of Hospital, finding Mr. Martinez was a trespasser, and Hospital did not engage in any willful or reckless misconduct that would necessarily cause injury to Mr. Martinez.
On May 31, 2013, Mr. Martinez timely filed post-trial motions, which the court denied on October 7, 2013. On October 22, 2013, Mr. Martinez filed a premature notice of appeal. On October 31, 2013, the trial court ordered Mr. Martinez to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mr. Martinez filed his Rule 1925(b) statement on November 19, 2013. On December 9, 2013, this Court entered a per curiam order directing Mr. Martinez to praecipe for entry of final judgment. On December 16, 2013, Mr. Martinez filed a praecipe for final judgment in favor of Hospital, which the court entered that day.
Ordinarily, an appeal properly lies from the entry of judgment, not from the order denying post-trial motions. See generally Johnston the Florist , Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa.Super. 1995) (en banc). Nevertheless, a final judgment entered during the pendency of an appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and Supply , Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 569 Pa. 693, 803 A.2d 735 (2002). Mr. Martinez's notice of appeal was premature when filed, but it related forward to December 16, 2013, the date the final judgment was entered. See Pa.R.A.P. 905(a) (stating: "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"). Hence, there are no jurisdictional impediments to our review.
Mr. Martinez raises four issues for our review:
WHETHER THE COURT'S ORDER OF OCTOBER 7, 2013, DENYING [MR. MARTINEZ'S] POST-TRIAL MOTIONS TO VACATE THE JURY VERDICT ENTERED ON MAY 23, 2013, MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED AS A MATTER OF LAW BY CHARGING THE JURY WITH REGARD TO TRESPASSER, DESPITE FAILING TO REQUIRE [HOSPITAL] TO SHOW THAT THERE WAS SUFFICIENT EVIDENCE OF RECORD TO ARGUE THAT [MR. MARTINEZ] COULD BE A TRESPASSER?
WHETHER THE COURT'S ORDER OF OCTOBER 7, 2013, DENYING [MR. MARTINEZ'S] POST-TRIAL MOTIONS TO VACATE THE JURY VERDICT ENTERED ON MAY 23, 2013, MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO FULLY AND ADEQUATELY INSTRUCT THE JURY ON THE DUTY OF CARE OWED TO [MR. MARTINEZ], INCLUDING COMPLETE INSTRUCTIONS ON INVITEES, LICENSEES, AND KNOWN
TRESPASSERS, DESPITE SUFFICIENT EVIDENCE OF RECORD TO SUBMIT THOSE STANDARDS TO THE JURY?(Mr. Martinez's Brief at 4-5).
WHETHER THE COURT'S ORDER OF OCTOBER 7, 2013, DENYING [MR. MARTINEZ'S] POST-TRIAL MOTIONS TO VACATE THE JURY VERDICT ENTERED ON MAY 23, 2013, MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED AS A MATTER OF LAW BY PLACING THE ISSUE OF WHETHER [MR. MARTINEZ] WAS A TRESPASSER ON THE VERDICT SHEET WHILE EXCLUDING INVITEE FROM THE VERDICT SHEET, DESPITE SUFFICIENT EVIDENCE TO THE CONTRARY, WHICH MISLED THE JURY AND WAS UNFAIRLY PREJUDICIAL TO [MR. MARTINEZ]?
WHETHER THE COURT'S ORDER OF OCTOBER 7, 2013, DENYING [MR. MARTINEZ'S] POST-TRIAL MOTIONS TO VACATE THE JURY VERDICT ENTERED ON MAY 23, 2013 MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING [HOSPITAL'S] MOTION IN LIMINE, ...AND PRECLUDING TESTIMONY ABOUT OUT-OF-COURT STATEMENTS THAT WERE PRESENT SENSE IMPRESSIONS, OPPOSING PARTY STATEMENTS, AND ALSO OFFERED TO PROVE NOTICE OR KNOWLEDGE?
When reviewing a trial court's jury instruction:
Under Pennsylvania law, our standard of review when considering the adequacy of jury instructions in a civil case is to determine whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. It is only when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue that error in a charge will be found to be a sufficient basis for the award of a new trial.Smith v. Morrison , 47 A.3d 131, 134-34 (Pa.Super. 2012), appeal denied, 618 Pa. 690, 57 A.3d 71 (2012). Additionally:
In reviewing a challenge to the trial court's refusal to give
a specific jury instruction, it is the function of [the reviewing Court] to determine whether the record supports the trial court's decision. In so reviewing, we are mindful that a trial court is bound to charge only on that law for which there is some factual support in the record.Levey v. DeNardo , 555 Pa. 514, 517, 725 A.2d 733, 735 (1999) (internal citations omitted). Further, the court may grant or refuse a request for special interrogatories on a verdict sheet based on whether they would add to the logical and reasonable understanding of the issues; we will not disturb the trial court's ruling absent an abuse of discretion. Century 21 Heritage Realty , Inc. v. Bair , 563 A.2d 114, 116 (Pa.Super. 1989).
With respect to a trial court's decision regarding the admission or exclusion of evidence:
It is well established in this Commonwealth that the decision to admit or to exclude evidence, including expert testimony, lies within the sound discretion of the trial court. Moreover, our standard of review is very narrow; we may only reverse upon a showing that the trial court clearly abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.Harris v. Toys "R" Us-Penn , Inc., 880 A.2d 1270, 1274 (Pa.Super. 2005), appeal denied, 586 Pa. 770, 895 A.2d 1262 (2006).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Shelley Robins New, we conclude Mr. Martinez's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed November 20, 2014, at 2-8) (finding: (issues 1-3) evidence at trial showed Mr. Martinez walked through Hospital's property as shortcut to his destination on date of fall; Mr. Martinez admitted he had no business with Hospital that day, he was not visiting any patient at Hospital, and he was not seeking treatment at Hospital; no evidence demonstrated Mr. Martinez was invitee of Hospital, so court declined to give jury instruction for invitee status; court instructed jury on licensee and trespasser definitions, where evidence warranted those instructions; court issued standard jury instructions for trespasser and licensee, and duty of care possessor of land owes to trespasser or licensee; court included on verdict sheet question asking jury if Mr. Martinez was trespasser or licensee, and directing jury to answer subsequent questions based on that threshold determination; jury returned unanimous verdict finding Mr. Martinez was trespasser on Hospital's property on date of fall; thus, Mr. Martinez's claim that court gave improper jury instructions and his related complaints fail; (issue 4) Hospital filed motion in limine based on hearsay grounds to exclude Mr. Martinez from testifying about statements made by two unidentified declarants at time of Mr. Martinez's fall; declarants allegedly told Mr. Martinez there was "always accumulating snow in this area over the years"; Mr. Martinez offered no evidence to support declarants were employees of Hospital (necessary to satisfy admission by party opponent exception to hearsay rule), other than Mr. Martinez's deposition testimony that declarants wore lab coats with nametags, which Mr. Martinez could not identify; absent more, court granted Hospital's motion; at trial, Mr. Martinez provided further description that declarants' lab coats had "T" on side of coats, which Mr. Martinez claimed represented Hospital's insignia; based on this testimony, court gave counsel for Mr. Martinez opportunity to lay foundation to establish connection between Hospital and declarants; Mr. Martinez provided insufficient detail to lay proper foundation, and counsel for Mr. Martinez did not elicit additional testimony throughout trial to establish declarants were employees of Hospital; thus, trial court's ruling on Hospital's motion was proper, and Mr. Martinez's claim on appeal merits no relief). Accordingly, we affirm on the basis of the trial court's opinion.
On appeal, Mr. Martinez also argues the declarants' statements satisfied the present sense impression exception to the hearsay rule, and the court should have admitted Mr. Martinez's testimony about their alleged statements to demonstrate Hospital's knowledge about the condition in the parking area. Mr. Martinez further asserts the court should have allowed him to testify about statements an unidentified security guard made to Mr. Martinez the day after his fall. Mr. Martinez failed to preserve these precise claims before the trial court at the hearing on Hospital's motion in limine and in his Rule 1925(b) statement, so they are waived. See HSBC Bank , NA v. Donaghy , 101 A.3d 129 (Pa.Super. 2014) (stating issues not raised in Rule 1925(b) statement will be deemed waived on appeal); McManamon v. Washko , 906 A.2d 1259 (Pa.Super. 2006), appeal denied, 591 Pa. 736, 921 A.2d 497 (2007) (explaining party must make timely and specific objection at appropriate stage of proceedings to preserve issue for appellate review; Superior Court will not consider claim which was not called to trial court's attention at time when any error committed could have been corrected).
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2015
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