Opinion
1316 WDA 2023 J-A18020-24
09-05-2024
ELLEN M. WARWICK Appellant v. GOLDEN PROPERTIES, LLC v. J. MICHAEL BERARDINI AND JASON MICHAEL LOPEZ
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment Entered March 21, 2023 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-20-01471
BEFORE: OLSON, J., MURRAY, J., and BECK, J.
MEMORANDUM
MURRAY, J.
In this case involving a slip and fall on ice, Ellen M. Warwick (Appellant) appeals from the judgment entered following the jury's verdict against her and in favor of defendant Golden Properties, LLC (Golden Properties), and additional defendants J. Michael Berardini (Berardini), and Jason Michael Lopez (Lopez) (all collectively referred to as Defendants). After careful review, we affirm.
On January 20, 2019, several inches of snow fell in Brentwood Township, Pennsylvania. That same day, at around 4:00 p.m., Golden Properties' snow-removal contractor, Berardini, removed snow and salted the parking lot and sidewalk in front of Golden Properties' apartment building. However, as Lopez had parked his vehicle on part of the sidewalk, Berardini had some difficulty removing snow and salting that portion of the sidewalk.
On January 21, 2019, at around 5:20 p.m., Appellant slipped and fell on the sidewalk in front of Golden Properties' apartment building. Appellant claimed that a dusting of snow had covered untreated ice on the sidewalk. As a result of her fall, Appellant sustained fractures to her ankle, requiring surgery.
The trial court stated the relevant procedural history of this case:
On January 28, 2020, [Appellant], filed a Complaint against … Golden Properties, raising one count of negligence based on [the] alleged slip and fall incident caused by a patch of ice and snow on a sidewalk in front of an apartment building owned by Golden Properties.
On April 3, 2020, Golden Properties filed an Answer and New Matter. Golden Properties denied liability. In their New Matter, Golden Properties asserted that either all or part of [Appellant's] cause of action was [] barred by the Pennsylvania doctrines of contributory negligence, comparative negligence, and/or assumption of risk. Furthermore, Golden Properties asserted they could not be held liable because [Appellant's] injuries and damages were the sole result of a force majeure or Act of God or in the alternative[, Appellant's] complaint was the result of third parties over whom Golden Properties had no control.
On May 18, 2020, Golden Properties filed a Complaint to Join Additional Defendant, [] Berardini[.]Trial Court Opinion, 1/10/24, at 2.
Berardini filed an answer and new matter on November 25, 2020. Berardini denied liability and asserted the defenses of comparative negligence, contributory negligence and/or assumption of risk. Berardini also claimed Appellant's alleged injuries were caused by an act of God; unforeseeable circumstances; or the fault of Lopez, whose vehicle had blocked the sidewalk, thereby hindering Berardini's snow removal and salting. Lopez was joined as an additional defendant on September 29, 2021.
The trial court continued:
On December 2, 2021, Lopez filed an Answer, New Matter and Cross-Claim. Lopez denied liability. In his New Matter, Lopez asserted the following: any and all claims of [Appellant] were barred by the doctrines of contributory negligence, comparative negligence, and/or assumption of risk; to the extent that discovery reveals[] said accident was caused solely and/or exclusively by circumstances over which Lopez did not have control and/or responsibility and/or by supervening, intervening and/or independent causes over which he did not have control and/or responsibility and not in any manner whatsoever by the actions of Lopez; the cause of action against Lopez is time barred; and [Appellant's] claims are barred and/or limited due to the fact that they occurred as a result of sudden emergent weather conditions which were an Act of God for which Lopez cannot be held liable. Finally, in his cross-claim, Lopez asserted a cross-claim for contribution and/or indemnity against Golden Properties and Berardini.
On November 28, 2022, [Appellant] presented a Motion in Limine to preclude Golden Properties from offering any testimony as to the absence of [prior] complaints as to the condition of the sidewalk. On November 29, 2022, [the trial court] granted said motion except for the date of the incident [for] which Golden Properties had to lay an adequate foundation.Id. at 3-4.
Following a three-day trial, the jury found in favor of Defendants and against Appellant. Specifically, the jury found no negligence by Berardini and Lopez. The jury found Golden Properties negligent, but further found its negligence was not the factual cause of any harm to Appellant.
Appellant filed a post-trial motion challenging the verdict as against the weight of the evidence on December 12, 2022. On February 17, 2023, Appellant filed a supplemental post-trial motion challenging an evidentiary ruling. The trial court denied Appellant's post-trial motion and supplemental post-trial motion on March 20, 2023. Appellant timely appealed. The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement.
Appellant presents the following issues for our review:
A. Whether the jury erred in finding that ... Golden Properties' [] failure to remove the snow and ice from the sidewalk was not a factual cause of Appellant's fall.
B. Whether the trial court committed an error of law and/or abused its discretion when [it] permitted the submission of evidence pertaining to the absence of complaints as to the condition of the sidewalk.Appellant's Brief at 4 (capitalization and punctuation modified).
Appellant challenges the jury's verdict as against the weight of the evidence. See id. at 4, 14. Appellant asserts
Appellant's brief purportedly challenges the "weight" of the evidence. See Appellant's Brief at 12 (challenging the weight of the evidence in the Summary of Argument), 27 (asserting a party challenging the weight of the evidence is not required to object prior to the jury being discharged), 28 (claiming a weight challenge only after the verdict). However, Appellant's argument on appeal seeks reversal for entry of judgment notwithstanding the verdict (JNOV). JNOV is the appropriate remedy for a verdict not supported by sufficient evidence. See Renninger v. A&R Mach. Shop, 163 A.3d 988, 995 (Pa. Super. 2017) ("JNOV is the proper remedy in a civil case where the evidence presented at trial was insufficient to sustain the verdict.") (citation omitted)).
[t]he evidence presented on the condition of the sidewalk was that on January 21, 2019[, at] 5:20 p.m., the sidewalk was covered
with a light dusting of snow. Below the light dusting of snow was rough and uneven ice.Id. at 15. Appellant relies on her testimony that the ice was "jagged little edges, uneven." Id. at 16 (citation omitted). Appellant asserts there was no evidence upon which "the jury could draw a reasonable inference that something other than the ice caused Appellant to fall." Id. at 16.
Appellant contends Golden Properties had a non-delegable duty to maintain the sidewalk. Id. at 17. Appellant asserts the uncontradicted evidence established she fell in the untreated area of the sidewalk. Id. According to Appellant, this area of the sidewalk remained untreated for 25 hours. Id. She argues, "[t]here is no evidence that any vehicles prevented [Golden Properties] from having the sidewalk cleaned between January 20, 2019, and January 21, 2019." Id. In support, Appellant directs our attention to Lopez's trial testimony that he moved his vehicle from the sidewalk between 5:30 and 6:00 p.m. on January 20, 2019. Id. Appellant claims there was no evidence that any other car parked in the untreated area from the time of Lopez's departure until her fall. Id.
Appellant disputes Golden Properties' argument that the jury could have found a force majeure caused Appellant's injury. Id. at 18. Appellant maintains the record does not support a finding of force majeure. Id. at 19. According to Appellant,
[t]he critical unbiased testimony from [her neighbor,] Judith Kiley [(Ms. Kiley),] was that the sidewalk was so slippery that even after being warned by Appellant to be careful due to the treacherous
icy condition, [Ms. Kiley] had to hold onto her car in attempting to get to Appellant.Id. Appellant points to Ms. Kiley's testimony that the ice was "a little bit rough, … the snow was … kind of wiped off the ice." Id. at 20 (citation omitted). Similarly, Appellant asserts, Ms. Kiley's daughter-in-law, Tammy Kiley (Tammy), testified that the walk had "snow and ice." Id. at 21.
Thus, Appellant claims the evidence established that it snowed on January 20, 2019, and Berardini failed to treat the snow and ice on the sidewalk. Id. at 22. Appellant argues that "the untreated snow went through a freeze-thaw cycle causing the snow to ice up[,] which caused Appellant to fall." Id. Although Berardini had cleared the snow and ice on January 20, 2019, Appellant argues that Golden Properties' duty to keep the sidewalk snow- and ice-free remained. Id. at 23. Appellant directs our attention to the admission by Golden Properties' owner, Brian Cummings (Cummings), that he did not inspect the sidewalk prior to Appellant's fall. Id. at 24-25.
Significantly, Appellant argues,
[t]here is no plausible explanation as to what caused Appellant to fall other than the untreated snow and ice. The circumstance and mechanic[s] of her fall support but one conclusion, the untreated ice caused her to fall and suffer a serious injury.Id. at 25.
Golden Properties counters that Appellant waived her claim by not objecting to the jury's verdict form, which permitted the jury to determine if Golden Properties' negligence was the factual cause of Appellant's injuries. Golden Properties' Brief at 11. Golden Properties points out that Appellant's proposed special interrogatories included the causation question. Id. Golden Properties further claims Appellant failed to object to the trial court's jury instructions on her burden to prove factual cause. Id. at 12. In support, Golden Properties directs our attention to our Supreme Court's decisions in Criswell v. King, 834 A.2d 505 (Pa. 2003), and Stapas v. Giant Eagle, Inc., 197 A.3d 244 (Pa. 2018). Golden Properties' Brief at 13-14.
Golden Properties asserts:
In this case, [Appellant] is not arguing that the jury improperly weighed competing evidence on the issue of factual cause. [Appellant] argues that "it is uncontroverted and undisputed that [Golden Properties'] negligence, i.e., failure to proper[l]y [] maintain the sidewalk was a factual cause bringing about Appellant's injuries." (Appellant's Brief, p. 18.) [Appellant's] argument is that the jury could not have reached the verdict that it did under the evidence before it…. Because [Appellant's] challenge goes to the jury's capacity to reach the verdict that it did under the evidence presented to it, the challenge is not premised on the alleged improper weighing of competing evidence but on "trial errors, correctable before the jury [was] discharged." Stapas, 197 A.3d at 246….Id. at 15 (emphasis added). Upon careful review, we agree.
In Criswell, our Supreme Court recognized that a challenge to the verdict as against the weight of the evidence ripens after the jury's verdict:
A weight challenge is sui generis. Such a claim is not premised upon trial court error or some discrete and correctable event at trial, but instead ripens only after, and because of, the jury's ultimate verdict in the case. The challenge does not dispute the power of the jury to render the verdict it rendered, nor does it even allege any facial error in the verdict of the jury
(be it, in the eyes of the challenger, a flaw, an inconsistency or a total injustice). Assuming that the case properly was ripe for jury consideration-i.e., neither of the parties was entitled to a directed verdict because a properly joined issue of material fact remained for resolution-the jury is fully empowered to rule in favor of either or any party. The basis for a weight claim derives from the fact that the trial court, like the jury, had an opportunity to hear the evidence and observe the demeanor of the witnesses; the hope and expectation animating a weight challenge is that the trial court will conclude that the verdict was so contrary to what it heard and observed that it will deem the jury's verdict such a miscarriage of justice as to trigger the court's time-honored and inherent power to take corrective action.Criswell, 834 A.2d at 512 (emphasis added).
In Stapas, our Supreme Court summarized its holding in Straub v. Cherne Indus., 880 A.2d 561 (Pa. 2005). The Stapas Court explained that in Straub, our Supreme Court
held the defendant waived its argument, advanced for the first time in its post-trial motion, that the evidence was insufficient to support the jury's verdict. Straub, 880 A.2d at 567. The jury in Straub found, in response to special interrogatories, that the defendant's product was not defective but that the defendant was negligent. Id. at 565. The defendant did not object to the interrogatories, the trial court's jury instructions, or the verdict. Id. at 567. Instead, the defendant filed a post-trial motion, which asserted the jury's finding that the defendant was negligent could not stand because the jury found the product was not defective and the plaintiff did not produce any independent evidence of negligence unrelated to the condition of the product. Id. at 565. Applying [Pa.R.C.P.] 227.1, the Straub Court held that the defendant waived this argument. Id. at 567. [The Supreme] Court reasoned that the defendant's argument was that the jury could not find the defendant negligent as a matter of law, not that the jury erred in weighing the evidence. Id. (explaining "[the defendant] is not arguing that the verdict cannot stand because a reasonable jury could not have found [the defendant] negligent based on the evidence that [the plaintiffs] introduced at trial"). Therefore, [the Supreme] Court concluded the defendant's objections were waived
because the verdict sheet and the jury instructions did not accurately state the law, and the defendant did not object to them. Id.Stapas, 197 A.3d at 250 (emphasis added).
Similarly, in the instant case, Appellant claims "[t]here was no evidence offered from which the jury could draw a reasonable inference that something other than the ice caused Appellant to fall." See Appellant's Brief at 16. Appellant argues she properly preserved this issue. Id. at 28. The trial court disagreed:
In the case herein, Appellant did not object to the inclusion of the factual cause interrogatory on the verdict slip. See Tr. 423:1-424:5. During the charging conference discussing the proposed jury charge, including factual cause in the instruction[,] was discussed and Appellant did not object. Id. at 417:18-421:15. Additionally[,] when discussing the jury charge, Appellant agreed to the instruction regarding burden of proof[,] which stated Golden Properties had the burden of proof with respect to … Berardini and Lopez. Id. at 402:12-417:15. Furthermore, during the discussion regarding instructing the jury on the definition of factual cause, Appellant did not raise an objection. Id. at 423:1-424:5. Finally, Appellant did not raise an objection to the verdict.
The case herein is on point with Straub. Like the defendant in Straub, the Appellant herein[] did not object to the interrogatories, the trial court's jury instruction, or the verdict. Therefore, like the defendant in Straub, the Appellant herein waived her argument, advanced for the first time in her post-trial motions, that the evidence was insufficient to support the jury's verdict.Trial Court Opinion, 1/10/24, at 7. Upon review of the record, Appellant's arguments, the trial court's opinion, and our Supreme Court's decision in Straub, we agree. Appellant waived her claim that she is entitled to judgment as a matter of law. See id.
Even if Appellant had argued the verdict is against the weight of the evidence, she is owed no relief. Our scope and standard of review is as follows:
The decision to grant or deny a motion for a new trial based upon a claim that the verdict is against the weight of the evidence is within the sound discretion of the trial court. Thus, the function of an appellate court on appeal is to review the trial court's exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence. An appellate court may not overturn the trial court's decision unless the trial court palpably abused its discretion in ruling on the weight claim. Further, in reviewing a challenge to the weight of the evidence, a verdict will be overturned only if it is so contrary to the evidence as to shock one's sense of justice.
A trial court's determination that a verdict was not against the interest of justice is [o]ne of the least assailable reasons for denying a new trial. A verdict is against the weight of the evidence where certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.Chavers v. 1605 Valley Ctr. Pky, LP, 294 A.3d 487, 496 (Pa. Super. 2023) (citation omitted). As our Supreme Court explained,
one of the reasons that the power and duty to upset a verdict on weight grounds is so narrowly circumscribed is because of the "obvious tension between the broad, settled, exclusive role of the fact-finder in assessing credibility and the limited power of trial judges, in narrowly circumscribed circumstances, to overturn those assessments when the judicial conscience is not merely disappointed, or uncomfortable, but' shocked.'" [Armbruster v. Horowitz, 813 A.2d 698, 704 (Pa. 2002) (citation omitted)].Criswell, 834 A.2d at 512.
To prevail in a negligence action, a plaintiff must prove that the defendant "owed a duty of care to the plaintiff, that duty was breached, the breach resulted in the plaintiff's injury, and the plaintiff suffered an actual loss or damages." Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009). This Court has long recognized that 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.Myers v. Penn Traffic Co., 606 A.2d 926, 928 (Pa. Super. 1992) (en banc) (citation omitted) (citing Restatement (Second) of Torts § 343).
In Pennsylvania, the "hills and ridges" doctrine protects an owner or occupier from liability for slippery conditions resulting from ice and snow:
The "hills and ridges" doctrine is a long standing and well entrenched legal principle that protects an owner or occupier of land from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. Harmotta v. Bender, ... 601 A.2d 837 ([Pa. Super.] 1992). "The doctrine as defined and applied by the courts of Pennsylvania, is a refinement or clarification of the duty owed by a possessor of land and is applicable to a single type of dangerous condition, i.e., ice and snow." Wentz v. Pennswood Apartments, 518 A.2d 314, 316 ([Pa. Super.] 1991). The rationale for this doctrine has been explained as follows:
... to require that one's walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere.
Id. The "hills and ridges" doctrine applies with equal force to both public and private spaces. See Wentz, supra (appellate courts
of this Commonwealth apply the doctrine of hills and ridges not only to persons injured from falling on ice covered public walks or parking areas[,] but to situations in which business invitees have fallen on ice covered private parking areas and walks as well)….Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1087-88 (Pa. Super. 1997).
Consequently, to recover for a fall on an ice- or snow-covered surface, the plaintiff must prove (1) the snow and ice on the sidewalk had accumulated in ridges or elevations of such size that they unreasonably obstructed travel; (2) the property owner had actual or constructive notice of the condition; and (3) it was the dangerous accumulation of snow and ice that caused the plaintiff to fall. Alexander v. City of Meadville, 61 A.3d 218, 222 (Pa. Super. 2012). "Absent proof of all such facts, a plaintiff has no basis for recovery." Rinaldi v. Levine, 176 A.2d 623, 626 (Pa. 1962) (emphasis in original).
At trial, the parties initially agreed to read into the record portions of Cummings' deposition testimony. N.T., 11/30/22-12/2/22, at 58. Cummings acknowledged, as owner of Golden Properties, it was his responsibility to maintain the sidewalks and "make sure that … the walks are passable, free of debris, and safe to walk upon." Id. at 61. Cummings understood it was his responsibility to maintain the sidewalks at all times. Id. at 67.
Berardini, Golden Properties' snow-removal contractor, testified during Appellant's case-in-chief, as on cross-examination. Id. at 74. Berardini explained that on January 20, 2019, he performed snow removal services for Golden Properties. Id. at 78. Berardini explained that on that date, he salted Golden Properties' sidewalk, including the area where Lopez's Dodge vehicle was parked on the sidewalk. Id. at 79. Berardini testified he salted the sidewalk in front of and under the Dodge. Id. However, Berardini acknowledged he was limited in what he could do, because of the car parked on the sidewalk. Id. at 80. According to Berardini, he did not return to Golden Properties until January 24, 2019. Id. at 81.
Appellant testified that she recalled January 20, 2019:
[W]e were supposed to get Snowmageddon … that day….
… I do recall when I woke up that day there was a few inches on the ground. But it wasn't anything near what they were expecting.Id. at 85. Appellant indicated she shoveled her walk "at least once or twice and salted." Id. Appellant testified that in traveling to her place of employment, she would walk on the opposite side of the road from Golden Properties. Id. at 86. Appellant indicated it was cold that morning and she wore snow boots. Id. at 87. According to Appellant, she had no difficulty walking to her bus stop. Id. at 88.
After working downtown during the day, Appellant returned by bus to her bus stop. Id. at 91. Appellant testified she walked through a Sunoco parking lot and onto Golden Properties' sidewalk. Id. at 90. According to Appellant, at that time, there was no snow in the Sunoco parking lot. Id.
Appellant testified she noticed Golden Properties' sidewalk was snow-covered. Id. at 91. Appellant acknowledged seeing footprints in the snow on the sidewalk. Id. at 92. According to Appellant, she was walking as she "normally would" when she slipped and fell on the sidewalk. Id. at 92. Appellant testified she did not see ice on the sidewalk prior to falling. Id. Appellant stated:
I realized that I had fallen. And I tried to get myself up. And I looked, saw that my foot was turned in. And I didn't know what to do because it was getting cold and it was getting dark and I was scared. So I put hands in the back of me and I scooted on my behind [to a grassy area.]
I remember it being cold and rough and trying to put my hands back like this so I could scoot over the hillside.Id. at 93, 95. When asked what she meant by "rough," Appellant responded, "[l]ike jagged little edges, uneven." Id. at 96.
Appellant acknowledged she was not able to see the ice immediately after her fall. Id. at 95. She stated, "everything from that point was almost like a blur. I was scared. I was cold. I was by myself." Id. Appellant further acknowledged she could not recall if any of the snow had been wiped away from where she fell. Id. at 96. Appellant testified she called to her neighbor, Ms. Kiley, for assistance. Id.
When shown Exhibit 5, a photograph of Lopez's Dodge vehicle parked on the sidewalk, Appellant explained that she fell beyond where the Dodge had been parked. Id. at 97. Appellant testified that no vehicles were parked in the area when she fell. Id. at 97-98.
Appellant testified Ms. Kiley and her daughter-in-law, Tammy, assisted and drove Appellant to the hospital emergency room. Id. at 99. At the emergency room, Appellant was found to have sustained a dislocated ankle, and fractures in three areas of the ankle. Id. at 100. Appellant's injuries required surgery and the insertion of pins and a plate. Id. at 100, 102. As a result of her fall, Appellant remained in the hospital for six days. Id. at 102.
On cross-examination, Appellant testified, "the only thing that I can recall is one minute I was walking, the next minute I was down on the ground. I can't say whether I took a couple steps and felt ice first." Id. at 140. Appellant confirmed that she could not estimate the depth of the snow or thickness of the ice on the sidewalk. Id. at 145. Appellant stated she did not observe ice under her foot at the time of her fall. Id. at 156. Appellant also testified that in 2009, she had fallen and injured that same ankle. Id. The prior fall took place during the summer. Id. at 157.
Ms. Kiley testified that on January 21, 2019, she received a telephone call from Appellant. Id. at 169. Ms. Kiley explained:
I got a phone call approximately 5:30 in the evening and [Appellant] was on the phone crying that [she] fell down … by the Sunoco gas station. Can you come and help me? So my daughter-in-law, Tammy [], happened to be at the house at the time because she was picking up her son because I had watched him that day. And I said, yeah, I'll be right down. And Tammy said, well, I'll go with you and … see if I can help at all.
So we went down to the Sunoco. And I couldn't find [Appellant]; she wasn't there. So I called her on the phone. And she says, I'm up on Greenlee [Road]. So we turned around at the Sunoco and we went up and we saw [Appellant] laying there on the sidewalk. I pulled my car in directly where she was there and I got out of the car. She was hysterical. Her leg looked horrible; … the bone was sticking out but yet it wasn't through the skin. And so it was very icy there; there was a patch of ice on the
ground. And you could tell that people had walked on the ice because it was a little bit cracked and rough.
So I got out and I held onto the handle of the car….Id. at 169-70.
Ms. Kiley testified that when she found Appellant, there was ice directly in front of Ms. Kiley. Id. at 175. According to Ms. Kiley, as she approached Appellant, she felt ice underneath her feet. Id. at 176. Ms. Kiley testified, "I could see it had been walked on, it was a little bit rough, like, the snow was, like, kind of wiped off the ice." Id. at 176 (emphasis added). Ms. Kiley testified that she saw the patch of ice even before she had exited her car. Id. at 186. Ms. Kiley could not describe the size of the ice patch or its thickness. Id.
Significantly Ms. Kiley testified as follows:
Q. [Golden Properties' counsel:] Do you recall testifying at your deposition that it would've been possible to walk around the ice on the sidewalk that day?
A. [Ms. Kiley:] For me or for anybody else.
Q. For anyone.
A. If you had seen it, yes.
Q. And did you see it?
A. When I got out of the car, I did - I mean, when I pulled up, I saw it.
Q. From your car?
A. Yes. Yes.
Q. So you could see it and … it was both visible and a person could walk around it?
A. Well, it was close enough - because I wouldn't walk - when I got out of my car, I held onto the handle because I was afraid to walk on it.
Q. … [Y]ou'll agree with me it was possible to walk around that patch of ice?
A. I can't say.Id. at 186-87 (emphasis added).
Reading from Ms. Kiley's prior deposition testimony, Golden Properties' counsel inquired as follows:
Q. [Golden Properties' counsel:] [] My question, … if you were … just walking along that sidewalk, would it have been possible to just walk along the edge and around that ice patch? Your [(Ms. Kiley's)] answer, it probably would have been possible. … But I say, question, where you parked, you had to cross it? Your answer, right.
A. [Ms. Kiley:] Right.
Q. [] So I guess what you're trying to say is if you're just walking up the sidewalk, you could've walked around the edge of it. But where you parked your car, you had to cross it?
A. Right.Id. at 188-89 (emphases added).
Tammy testified that, upon arriving at the scene and while standing in the street, the ice and dusting of snow were visible on the sidewalk. Id. at 206. Tammy acknowledged walking, and not slipping, on the same ice during her return to Ms. Kiley's vehicle. Id. at 208.
Cummings, the owner of Golden Properties, testified regarding the maintenance of the sidewalk in front of Golden Properties. Id. at 246. Cummings explained he had originally hired Berardini to remove snow on Golden Properties' sidewalk and parking lots in 2010 or 2011. Id. at 253. Cummings confirmed that Berardini was his snow removal contractor for the 2018-2019 season. Id.
According to Cummings, Berardini was hired to "[p]low the lot, shovel the walks, spread salt if he deemed necessary." Id. at 254, 267. Cummings indicated Berardini would work "[a]t his discretion, if the weather was inclement, or we had a snowfall. He would go there without fail." Id. at 254. Moreover, Berardini was approved to remove snow on consecutive days, and more than once a day, if necessary. Id. Cummings stated that he had viewed Berardini's snow removal and found it to be "[v]ery satisfactory." Id. at 259.
Cummings confirmed that his phone number is posted at Golden Properties for tenants to voice complaints. Id. Cummings testified that from 4:00 p.m. on January 20, 2019, and 25 hours thereafter, he received no complaints regarding snow removal at Golden Properties. Id.
Cummings testified that tenants were provided sufficient parking in the parking lot next to Greenlee Road. Id. at 260-61. Cummings acknowledged that occasionally, people parked blocking Golden Properties' sidewalk. Id. at 261. He explained,
I contacted the [B]orough and after many phone calls [] somebody came down .... They said they would install limited
parking signs. I think it says two hours. And I think it was another six or eight months before they actually installed the signs after I repeatedly called. But they did install the signs.Id. Nevertheless, Cummings stated, the signs did not solve the problem of people parking on the sidewalk. Id. at 262. Cummings testified that if a tenant parked on the sidewalk, he would tell them to move their vehicle. Id. Cummings indicated he could not recall being at the Golden Properties building on January 21, 2019. Id. at 265.
Golden Properties recalled Berardini during its case-in-chief. Id. at 351. Berardini testified that on January 20, 2019, he plowed the parking lot and shoveled the sidewalk at Golden Properties. Id. at 358. According to Berardini, he would plow and salt even if there was less than two inches of snow. Id. at 360. In addition, Berardini would service the property, sometimes preemptively, in the event of freezing rain. Id.
Berardini identified Exhibit 5 as a photo of Golden Properties' sidewalk at around 4:15 p.m. on January 20, 2019. Id. at 364. Berardini testified that,
[a]ny time those vehicle[s] are … in the way of [] or on the sidewalk it did interfere. But I have to tell you, I took pride in what I did. I know it's not rocket science. But I made sure I did the best job that I could especially at the time. There were times when I would pull the snow out from underneath those cars and push it out into the street and in between the vehicles all the way up as much as I could reach.Id. at 365.
On cross-examination, Berardini confirmed, "I was pretty diligent in getting in between, underneath." N.T., 11/30/22-12/2/22, at 371.
In light of the foregoing, we cannot conclude the verdict is so against the evidence as to shock this Court's conscience. As the trial court cogently explained,
[t]he jury in the present case found that Golden Properties was negligent but that said negligence was not the factual cause of the [Appellant's] injuries.
The overturning of a jury verdict is reserved for unique circumstances. The Supreme Court in Criswell noted:
Given the primary role of the jury in determining questions of credibility and evidentiary weight, this settled but extraordinary power vested in trial judges to upset a jury verdict on grounds of evidentiary weight is very narrowly circumscribed. A new trial is warranted on weight of the evidence grounds only "in truly extraordinary circumstances, i.e., when the jury's verdict is so contrary to the evidence that it shocks one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Armbruster …, 813 A.2d [at] 703 ….
Criswell, 834 A.2d at 512-13 (Pa. 2003)[.]
Here, the verdict was not so contrary to the evidence that it shocks one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.
Appellant contends that because she presented evidence that she fell on the ice and snow and because the jury found Golden Properties negligent in their snow and ice removal, then the jury necessarily should have found that Golden[ Properties]' negligence was the factual cause of Appellant's injuries.
In Appellant's Motion for Post-Trial Relief, Appellant states that "the only cause of [Appellant's] fall presented in this case was the presence of ice which had not been cleared from the sidewalk by either Defendant Golden Properties or Additional Defendant Berardini." Appellant argued[,] "No Defendant in this action claimed that Appellant's fall was caused by any factor other than the ice." However, it is the Appellant who had the burden to prove that Golden Properties was negligent and that they were a factual cause in [Appellant's] injuries. See Defendant [Golden Properties'] Brief in Opposition to [Appellant's] Motion for Post-Trial Relief, Exhibit B [Appellant's] Proposed Points for Charge. Alternate theories of the factual cause of the Appellant's fall were not required to be offered by Golden Properties.
However, alternate theories were plausible and the jury was free to consider those theories based on their own evaluation of the evidence. For example, the jury could have considered that the snow removal contractor for Golden Properties was the factual cause of Appellant's injuries, or that motorists who parked on the sidewalk created the risk that caused her fall, or finally, the jury could have reasoned that the Appellant herself was the factual cause of her own injuries based on her level of caution that was presented in evidence when she used the sidewalk.Trial Court Opinion, 1/10/24, at 8-9 (emphasis added). In particular, the trial court emphasized the testimony of Ms. Kiley, who stated she could see the ice and snow on the sidewalk from her car. See id. at 9-10.
The trial court further opined:
As Golden Properties argued, the mere fact of the existence of ice on the walk should not result in liability on the property owner. Additionally, if the Appellant's position was that the [j]ury should be required to find Golden [Properties'] negligence to be the factual cause of Appellant's harm, then Appellant had the opportunity to object to the jury instructions and verdict form and she did not object. In light of the above, the verdict was not so contrary to the evidence that it shocks 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 10 (citation and paragraph breaks omitted). We agree and discern no abuse of the trial court's discretion. We decline to speculate as to the reason(s) for the jury's determination. Appellant's first issue merits no relief.
In her second issue, Appellant argues that the trial court improperly permitted "the submission of evidence pertaining to the absence of complaints as to the condition of the sidewalk." Appellant's Brief at 28 (capitalization modified). Appellant asserts she filed a motion in limine to preclude testimony that Golden Properties received no complaints regarding the condition of the sidewalk. Id. at 29. According to Appellant, the trial court limited Appellant's inquiry to complaints received within the twenty-five hours between Berardini's snow removal and her fall. Id. at 30.
Appellant disputes the trial court's determination that she "opened the door" to testimony regarding prior complaints received by Cummings. Id. at 29. Appellant acknowledges her counsel asked Cummings the following question:
Q. [Appellant's counsel:] So you didn't visually inspect the sidewalk to make sure that the sidewalk had been properly shoveled and salted in accordance with the … [B]orough code, did you?
A. [Cummings:] Never received a complaint from the [B]orough.Id. at 29-30 (quoting N.T., 11/30/22-12/2/22, at 290). Appellant argues "[t]here was no evidence elicited that [Golden Properties] had to receive notice or complaints concerning the condition of the sidewalk to trigger its duty to perform snow removal." Id. at 30. Rather, Appellant asserts, it was Cummings who "tried to interject the fact that he had not received any complaints from the Borough." Id.
Appellant contends Golden Properties offered "no testimony to establish the condition of the sidewalk during said twenty-five (25) hour period." Id. at 31. Appellant asserts,
[n]o foundation was established that the condition of the sidewalk in front of the entry to [the] apartment building was substantially similar during the twenty-five (25) hour period prior to Appellant's fall.Id. at 31.
We review challenges to the admissibility of evidence for an abuse of discretion:
Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court's decision absent a clear abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.Keystone Dedicated Logistics, Inc. v. JGB Enterprises, Inc., 77 A.3d 1, 11 (Pa. Super. 2013) (citations and internal quotation marks omitted).
The trial court addressed Appellant's claim and concluded it lacks merit:
Appellant's counsel, during cross-examination of Cummings, raised the topic of Cummings['] knowledge of the sidewalk condition prior to the fall. See N.T. 281: 25-282:3; 283: 1-4.
Appellant [] argued in her Motion for Post-Trial Relief, that after this Court heard arguments at sidebar, the trial court erroneously determined that the questioning on cross-examination opened the door to questions regarding complaints during the entirety of Golden Properties' ownership of the apartment building. Relevant testimony that highlights the elicited responses to support that the trial court did not erroneously determine admission of evidence, follows below:
Q. [Appellant's counsel:] So you didn't visually inspect the sidewalk to make sure that the sidewalk had been properly shoveled and salted in accordance with the township-the [B]orough code, did you?
A. [Cummings:] Never received a complaint from the [B]orough.
Q. I didn't ask you if you got a complaint...
Q. So you were aware that [Berardini] was going to go out and should've gone out when it was two inches?
A. Never had a complaint.
Q. Okay.
A. Never.
Q. I don't think I asked if you had a complaint. I asked you---
See N.T.290:17:297:8 [(emphasis added)].
Specifically, Appellant's attorney asked if the sidewalk had been treated "in accordance with the township-the [B]orough code..." In other words, had Golden Properties been in compliance with the [B]orough code. The trial court determined this line of questioning] opened the door for Cummings to testify that Golden Properties "[n]ever had a complaint." Id.
During sidebar, the issue of Appellant opening the door for testimony regarding prior complaints of the condition of the sidewalk was discussed.
The Court: I do believe that there were a number of questions that went into that area of, you know, did you get any-did you ever have any complaints about [] Berardini-essentially-.
The Court: [T]here was plenty of questions that went to within the scope of whether there has been any prior complaints about the sidewalk.
The Court: All right. And then everything you're discussing, you specifically asked him, did he have any tenants in the building that would have contacted him if there were any issues. So to me, like, that was just one example of-in my opinion, you know that questions that went to within the scope of that line of questioning.
See N.T. 309:12-311:6.
The trial court's decision to allow Cummings to testify regarding the absence of prior complaints as to the condition of the sidewalk for dates other than the incident was not manifestly unreasonable, the law was applied, the action was not a result of partiality, prejudice, bias or ill will, was not an error in judgement, or an abuse of discretion. ... [T]he trial court did not abuse its discretion in permitting the testimony regarding the absence of prior complaints as to the condition of the sidewalk for dates other than the incident.Trial Court Opinion, 1/10/24, at 12-13. We agree and affirm on the basis of the trial court's above-stated rationale. See id.
For these reasons, we affirm the judgment entered on the verdict against Appellant and in favor of Defendants.
Judgment affirmed.
Judgment Entered.