E. Pennock v. Kennett Consolidated S. D. ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eileen Pennock, :
Appellant :
:
v. :
: No. 675 C.D. 2021
Kennett Consolidated School District : Submitted: March 7, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 1, 2022
Eileen Pennock (Pennock) appeals from a judgment entered following
a jury verdict in the Court of Common Pleas of Chester County (trial court). 1
Pennock challenges various evidentiary rulings by the trial court and asks this Court
to grant her a new trial. Upon review, we affirm the trial court’s judgment.
I. Background
In June 2015, Pennock, with her husband, was attending her
stepdaughter’s high school graduation from Kennett Consolidated School District
(District). Br. of Plaintiff/Appellant at 5. While making their way from the parking
lot to the guest seating, Pennock and her husband walked across a grassy area.
1
Pennock initially filed her appeal in the Superior Court, which transferred the case to this
Court. Reproduced Record (R.R.) at 2016a.
Reproduced Record (R.R.) at 1993a. Pennock, who was wearing backless slip-on
sandals, tripped and fell, sustaining severe breaks to her ankle. Id. at 2003a; Br. of
Plaintiff/Appellant at 6. Her husband returned to the site a month later, at which
time he located and photographed a hole or depression in the grass, which Pennock
alleged was the cause of her fall. R.R. at 1546a-47a.
Pennock asserted a negligence claim against the District, which the trial
court concisely described as follows:
[Pennock’s] theory of the case was that [the District’s]
parking lot was negligently designed and constructed
which caused stormwater to course off it down a
negligently graded grassy slope which caused erosion
which caused a hole (which was negligently undiscovered
by [the District] or negligently repaired by [the District])
which was concealed by negligently maintained turf in an
area where unsuspecting pedestrians were negligently
allowed to walk without reasonable warning.
R.R. at 1993a. In September 2020, a jury trial was held in the trial court. The verdict
form contained a series of questions, the first of which asked whether the District
was negligent. See id. at 1897a-99a & 1905a. The jury answered that question in
the negative, thus ending the case, and therefore did not reach any subsequent
questions concerning Pennock’s possible contributory negligence. Id.
Pennock filed a timely post-trial motion challenging a number of the
trial court’s evidentiary rulings and seeking a new trial. R.R. at 1910a-15a. The trial
court denied the post-trial motion, and this appeal followed.
2
II. Issues
On appeal,2 Pennock reasserts her challenges to five of the trial court’s
evidentiary rulings.3 First, Pennock argues that the trial court erred by allowing the
District to offer evidence concerning the absence of any previous injuries in the
location where she fell. Second, Pennock contends the trial court should not have
allowed the District to present evidence that there were alternate routes she could
have taken from the parking lot to her seat rather than traversing the grass. Third,
Pennock suggests the trial court should have allowed her expert witness to testify
that the grassy area where she fell did not comply with regulatory requirements
issued by the federal Occupational Health and Safety Administration (OSHA)4 and
under the federal Americans with Disabilities Act of 1990 (ADA).5 Fourth, Pennock
asserts that the trial court should have precluded, as speculative, the testimony of the
District’s expert witness that Pennock’s sandals contributed to her fall, that the grass
constituted a reasonable walking surface, and that Pennock was likely hurrying to
2
In an appeal seeking a new trial, “[t]he award of a new trial is proper only where a trial
court has committed an error of law or abuse of discretion which may have affected the verdict.”
Boyle v. Indep. Lift Truck, Inc., 6 A.3d 492, 494 (Pa. 2010) (citing Dep’t of Gen. Servs. v. U.S.
Mineral Prods. Corp., 956 A.2d 967, 970 (Pa. 2008); Harman ex rel. Harman v. Borah, 756 A.2d
1116, 1122 (Pa. 2000)).
3
In her statement of errors complained of on appeal, Pennock included a sixth assertion of
error concerning the trial court’s refusal to allow the use of certain documents and deposition video
clips during cross-examinations. See Br. of Plaintiff/Appellant, App. at A-25-A-26. However,
Pennock did not include this issue in her brief; accordingly, it is waived. See Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of questions involved [in the
brief] or is fairly suggested thereby.”); Torres v. Commonwealth, 228 A.3d 304, 309 (Pa. Cmwlth.
2020) (stating that an issue was waived where it was neither included in the statement of questions
involved nor developed in the argument section of the party’s brief).
4
29 C.F.R. §§ 1910.1-1910.1450.
5
Pub. L. No. 101-336, 104 Stat. 328 (1990).
3
reach her seat at the time she fell. Fifth, Pennock posits that she should have been
allowed to present exhibits to the jury regarding two unrelated cases in which
testimony by the District’s expert was allegedly precluded as speculative. We
address each argument in turn.
III. Discussion
A. Evidence of the Absence of Previous Falls
Pennock first argues that the trial court should not have allowed the
District to offer evidence that there were no previous injuries in the location where
she fell. Pennock attacks this evidence as “unreliable,” irrelevant, and prejudicial.
Br. of Plaintiff/Appellant at 10-13. However, the trial court determined the proffered
evidence was relevant to the issue of whether the District had notice of a defective
condition of the grass. R.R. at 2000a. We agree.
Section 343 of the Restatement (Second) of Torts provides:
A possessor of land is subject to liability for physical harm
caused to his invitees[6] by a condition on the land if, but
only if, he
6
The Restatement (Second) of Torts defines “invitee” as follows:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on
land as a member of the public for a purpose for which the land is
held open to the public.
(3) A business visitor is a person who is invited to enter or remain
on land for a purpose directly or indirectly connected with business
dealings with the possessor of the land.
Restatement (Second) of Torts § 332 (Am. Law Inst. 1975). In attending her stepdaughter’s
graduation, Pennock was an invitee of the District. See Campbell v. Temple Univ., 78 Pa. D. & C.
4(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.
Restatement (Second) of Torts § 343 (Am. Law Inst. 1975); see Brewington v. City
of Phila., 199 A.3d 348, 355 (Pa. 2018) (applying Section 343 of the Restatement
(Second) of Torts as Pennsylvania law). Thus, actual or constructive notice of the
alleged defective condition of the property is an essential element of the plaintiff’s
case. See Brewington, 199 A.3d at 355. It is the plaintiff’s burden to prove such
notice. See King v. Pittsburgh Water & Sewer Auth., 139 A.3d 336, 352 (Pa.
Cmwlth. 2016) (observing that because notice of a defective condition was an
essential element of plaintiff’s claim, she could not recover without proof of notice);
Stevens v. Dep’t of Transp., 492 A.2d 490, 493 (Pa. Cmwlth. 1985) (plaintiffs could
not shift their burden of proving notice of a defective condition onto defendant and
thereby require defendant to prove lack of actual notice).
The absence of previous accidents is probative of a defendant’s lack of
notice of defective conditions. See, e.g., Dreher v. Williamsport Parking Auth. (Pa.
Cmwlth., No. 1868 C.D. 2011, filed Apr. 26, 2012), slip op. at 97 (affirming trial
court’s finding that plaintiff failed to prove defendant had notice of defect in
4th 1, 13-15 (2005), aff’d without op., 903 A.2d 145 (Pa. Cmwlth. 2006) (stating that plaintiff,
who tripped and fell while attending graduation on university premises, was an invitee and did not
become a trespasser merely by veering slightly off the designated crossing area).
7
This unreported opinion is cited as persuasive authority pursuant to this Court’s Internal
Operating Procedures. 210 Pa. Code § 69.414(a).
5
sidewalk, where defense witnesses consistently testified they had received no prior
complaints about the sidewalk’s condition); accord Houston by Houston v. Cent.
Bucks Sch. Auth., 546 A.2d 1286, 1290 (Pa. Cmwlth. 1988) (noting plaintiff’s failure
to allege any prior falls by impaired persons that could have put school district on
notice that its handicap adaptations to its exit and sidewalk constituted defective
conditions requiring correction). Here, the trial court ruled that evidence concerning
the absence of previous falls was relevant to the question of whether the District had
notice of the presence of the alleged hole. R.R. at 2000a. We discern no error of
law or abuse of discretion in that ruling.
In addition, the trial court ruled that evidence of the absence of previous
falls was relevant to the question of a causal link between the alleged condition of
the grass and Pennock’s fall. R.R. at 2000a-01a. We agree.
In her challenge to the trial court’s allowance of this evidence, Pennock
relies heavily on Spino v. John S. Tilley Ladder Co., 696 A.2d 1169, 1172-73 (Pa.
1997), for the principle that evidence of prior accidents is not admissible. Br. of
Plaintiff/Appellant at 11-16. However, Spino was a product liability case, not a
negligence action. Moreover, our Supreme Court stated in Spino that evidence of
the absence of prior accidents was admissible on the issue of causation.8 Spino, 696
A.2d at 1174. Thus, Spino does not support Pennock’s position.
8
We acknowledge that evidence may be admissible for one purpose but inadmissible for
another. “If the court admits evidence that is admissible against a party or for a purpose – but not
against another party or for another purpose – the court, on timely request, must restrict the
evidence to its proper scope and instruct the jury accordingly. . . .” Pa.R.E. 105. To the extent
that Pennock intends to suggest that the trial court erred in allowing evidence of the absence of
previous incidents because it was inadmissible for purposes other than showing lack of notice or
causation, Pennock has not asserted that she requested a limiting instruction pursuant to Rule 105
of the Pennsylvania Rules of Evidence.
6
As for any alleged prejudice to Pennock arising from the trial court’s
ruling, we acknowledge that even relevant evidence may be precluded if its
prejudicial effect outweighs its probative value. See Pa.R.E. 403.9 However,
“prejudice” in this context is not merely something harmful to a party’s case, but
rather, “‘a tendency to suggest decision on an improper basis or to divert the jury’s
attention away from its duty in weighing the evidence impartially.’” Justice v.
Lombardo (Pa. Cmwlth., No. 1439 C.D. 2016, filed Aug. 11, 2020), slip op. at 21
(quoting Pa. R.E. 403, Comment). Pennock has not pointed to any prejudice arising
from the trial court’s admission of evidence concerning the absence of previous
injuries at the site of her fall.
Accordingly, we affirm the trial court’s evidentiary ruling on the
admissibility of evidence concerning the absence of previous injuries in the area
where Pennock fell.10
9
Pennsylvania Rule of Evidence 403 provides:
The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.
Pa.R.E. 403.
10
The trial court also opined that any error it might have made in admitting this evidence
was harmless, because Pennock submitted ample evidence from which the jury could have found
the District was negligent notwithstanding the absence of previous injuries at the site. R.R. at
2001a-02a. Although we are not persuaded by the trial court’s analysis in this regard, we conclude
any error in the analysis itself is harmless, as there was no error in the trial court’s admission of
the evidence.
7
B. Evidence of an Available Alternate Route
Pennock next asserts that the trial court erred by allowing the District
to offer evidence of alternate routes that would have allowed her to walk from the
parking lot to her seat without crossing the grass. Br. of Plaintiff/Appellant at 18-
20. Pennock suggests the trial court erroneously allowed the District to raise the
“choice of ways” doctrine, which provides that a person who voluntarily chooses a
risky or dangerous route instead of an alternate safer route is contributorily
negligent. Id. at 18-19. Pennock argues this doctrine is inapplicable because it
requires that the plaintiff be aware of the danger in the chosen route, which was not
the case here. Id. We discern no merit in this argument.
Pennock’s position is premised on a mistaken assumption. The District
never sought to raise the choice of ways doctrine. Rather, the District offered
evidence of other walking routes to Pennock’s seat in order to rebut her contention
that she was “compelled” to leave the driveway and walk across the grass as “the
only path open to [her].” R.R. at 510a; Supplemental R.R. at R-29; Br. of Appellee
at 17-18. The trial court properly admitted the evidence for this purpose.
Further, the trial court posits that even had it erred in admitting this
evidence, any error would have been harmless. R.R. at 2006a. Choice of ways is a
doctrine of contributory negligence on the part of an injured plaintiff. See O’Brien
v. Martin, 638 A.2d 247, 249 (Pa. Super. 1994).11 Here, the jury never reached the
issue of Pennock’s contributory negligence, because it found the District was not
negligent, and that ended the case. See R.R. at 1905a. We agree with the trial court
that any error in admitting evidence relating to the affirmative defense of
11
Although decisions of the Superior Court are not binding on this Court, they offer
persuasive precedent where they concern analogous issues. Lerch v. Unemployment Comp. Bd. of
Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
8
contributory negligence did not affect the jury’s answer to the question of the
District’s negligence. See Boyle v. Indep. Lift Truck, Inc., 6 A.3d 492, 496 (Pa. 2010)
(stating that “where a jury finds no negligence on the part of a defendant, purported
error regarding questions of comparative and/or contributory negligence are not
prejudicial and cannot serve as a basis for the award of a new trial”).
Accordingly, we affirm the trial court’s evidentiary ruling on the
admissibility of evidence concerning alternate walking routes that were available to
Pennock.
C. Expert Testimony Concerning OSHA and ADA Requirements
Pennock sought to introduce expert testimony at trial regarding safety
requirements imposed by OSHA and the ADA, but the trial court rejected such
evidence as irrelevant. R.R. at 1998a. Despite a concession by Pennock’s expert
witness that OSHA and ADA requirements were not applicable to or enforceable
against the District, Pennock contends such requirements were nonetheless relevant
to the appropriate standard of care to be imposed on the District. Br. of
Plaintiff/Appellant at 20. This argument lacks merit.
As the District correctly observes, Pennock’s expert did not cite any
ADA regulation applicable to grass; in fact, the expert did not cite any specific ADA
provision. See R.R. at 1999a. The expert likewise failed to explain how a sloped
grassy area not designated as a walkway was subject to OSHA or ADA standards.
Id. We conclude that OSHA and ADA requirements, inasmuch as they were
inapplicable, could offer no persuasive evidence concerning the District’s standard
of care. Accordingly, they were irrelevant and the trial court properly ruled them
inadmissible.
9
Further, the District argues that allowing testimony about inapplicable
OSHA and ADA requirements would have created unfair prejudice to the District,
as such evidence would have suggested an improper basis for the jury’s decision or
diverted the jury’s attention from its duty to weigh the evidence impartially. Br. of
Appellee at 26. We agree with the District that it was the trial court’s function and
duty to weigh the probative value, if any, of such evidence against its prejudicial
effect. See Henerey v. Shadle, 661 A.2d 439, 444 (Pa. Super. 1995) (“Since such
balancing [or probative value and prejudicial effect] is a particular speciality of the
trial judge, rulings upon admissibility are committed to the sound discretion of the
trial court, and those rulings will not be overturned in the absence of an abuse of
discretion.”).
The legal authorities cited by Pennock are not applicable here, as they
involve situations where the parties were actually subject to OSHA, ADA, or
industry standards. See Br. of Plaintiff/Appellant at 24 (citing Birt v. Firstenergy
Corp., 891 A.2d 1281 (Pa. Super. 2006) (worksite injury to worker); Dallas v. F.M.
Oxford, Inc., 552 A.2d 1109 (Pa. Super. 1989) (admitting evidence of elevator
manufacturing industry customs and standards as probative of manufacturer’s duty
to plaintiff injured in elevator); Wood v. Smith, 495 A.2d 601 (Pa. Super. 1985)
(plaintiff injured by collapse of workplace scaffold); Brogley v. Chambersburg
Eng’g Co., 452 A.2d 743 (Pa. Super. 1982) (workplace injury); McKenzie v. Cost
Bros., Inc. v. Dickerson Structural Concrete Corp., 409 A.2d 362 (Pa. 1979)
(construction worker injured on jobsite)).12 Pennock cites no authority, and this
12
Pennock also cites Reynolds v. Stambaugh (Pa. Super., Nos. 1889 & 1890 MDA 2013,
filed February 5, 2015). The Superior Court’s Internal Operating Procedures forbid citing
unpublished opinions of that court issued prior to May 2, 2019, even as persuasive authority. See
210 Pa. Code § 65.37.B; see also Pa.R.A.P. 126(b) (stating that non-precedential decisions of the
10
Court is aware of none, that would support the presentation of evidence of the
standard of care that consists of statutory or regulatory requirements of OSHA and
the ADA, which are applicable to specific situations, persons, or places, none of
which are at issue in this case.
Accordingly, we affirm the trial court’s evidentiary ruling on the
admissibility of evidence concerning OSHA and ADA requirements.
D. Expert Testimony Concerning Pennock’s Sandals and Likely Haste
At trial, the District presented testimony from an expert on walkways
and the effects of footwear on walking. The District’s expert opined that Pennock’s
open-backed slip-on sandals were a contributing factor in her fall. R.R. at 1727a-
28a. The expert inferred this from the structure of the footwear and from the
undisputed fact that Pennock’s sandal came off when she fell. R.R. at 1780a-81a.
The District’s expert also testified that in his opinion, the grass surface was a
reasonable walking surface and did not pose an unreasonable risk. R.R. at 1737a-
38a. Pennock challenged the admission of this evidence, arguing the testimony was
speculative. The trial court allowed the evidence, and this Court discerns no error
or abuse of discretion in its admission. The opinions of the District’s expert witness
concerning the structure and effect of Pennock’s sandals and the reasonableness of
the grass as a walking surface were based on facts in evidence and were within the
witness’s field of expertise.
Pennock also challenged, as speculative, the testimony of the District’s
expert that Pennock was likely in a hurry to reach her seat and that her haste
Superior Court filed after May 1, 2019, may be cited as persuasive). This Court, therefore, will
not consider or address Reynolds. Litigants are admonished to comply with the appellate courts’
internal operating procedures limiting citation of unpublished authorities.
11
contributed to causing her fall. Br. of Plaintiff/Appellant at 26-27. Pennock
correctly observes that there was no fact evidence at trial indicating that she was
hurrying when she fell. Id. at 26. However, Pennock’s argument omits the critical
circumstance governing the admissibility of this testimony: it was not educed by the
District during the expert’s direct testimony, but rather, by Pennock during cross-
examination of the expert. R.R. at 1792a. Having herself elicited the very testimony
she challenges, Pennock is not entitled to relief on appeal.
We further observe that both Pennock’s choice of footwear and her
alleged haste to reach her seat related solely to her possible contributory negligence.
Because the jury did not reach the question of contributory negligence, any error by
the trial court in allowing the challenged testimony was harmless. Boyle, 6 A.3d at
496-97.
Accordingly, we affirm the trial court’s evidentiary ruling on the
admissibility of evidence concerning Pennock’s footwear, the reasonable condition
of the grass, and Pennock’s likely haste to reach her seat.
E. Exhibits Relating to Exclusion of Testimony in Unrelated Cases
Finally, Pennock asserts that the trial court erred in precluding Pennock
from presenting trial exhibits relating to the exclusion of testimony from the
District’s expert witness as speculative in two unrelated cases. Br. of
Plaintiff/Appellant at 28-30. Pennock argues the trial court should have allowed her
to show that those preclusions of testimony by the District’s expert had occurred;
according to Pennock, the trial court’s ruling disallowing the evidence disregarded
the witness’s “long history” of having his testimony precluded as speculative. Id. at
12
29. We discern no error or abuse of discretion in the trial court’s preclusion of
Pennock’s proposed exhibits.
Pennock’s contention lacks merit for several reasons. She does not
explain how preclusion of the expert witness’s testimony in two cases constituted a
“long history” of preclusion in the career of an expert witness who had testified in
hundreds of cases. Br. of Plaintiff/Appellant at 29. Further, there was no evidence
that the circumstances at issue in the two cited cases were sufficiently analogous to
make the preclusion of the expert’s testimony in those cases relevant to this case. In
addition, one of the two trials was in a New Jersey court, and there was no showing
that the applicable rules of evidence governing expert testimony were sufficiently
analogous to Pennsylvania’s rules of evidence to make the New Jersey court’s
preclusion order relevant here. See id. at 29-30 (citing and discussing Colletti v.
Cnty. of Monmouth, No. A-5298-05T5, 2007 N.J. Super. Unpub. LEXIS 1489 (N.J.
Super. Ct. App. Div. July 20, 2007). Most importantly, Pennock failed to cite any
supporting authority for the proposition that the rulings of other courts in unrelated
cases were relevant to this case.
Notably, the trial court allowed Pennock to cross-examine the District’s
expert witness about the preclusions in the other two cases. R.R. at 1706a-10a. The
District’s expert readily acknowledged that his testimony had been precluded by a
court on two prior occasions; thus, that fact was undisputed. See id. at 1706a &
1710a-11a. The trial court also allowed Pennock to use an exhibit regarding one of
those two cases. See id. at 1707a.
The trial court had discretion concerning the extent of cross-
examination to allow for purposes of impeaching the District’s expert. See Smith v.
Celotex Corp., 564 A.2d 209, 213 (Pa. 1989). As the evidence of preclusion was
13
undisputed, the trial court did not abuse its discretion in limiting the presentation of
additional evidence on the same issue. See Pa.R.E. 403 (providing that a court may
exclude needlessly cumulative evidence).
Accordingly, we affirm the trial court’s evidentiary ruling on the
admissibility of exhibits concerning the preclusion of testimony by the District’s
expert witness in other, unrelated cases.
IV. Conclusion
Based on the foregoing discussion, the trial court’s judgment is
affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eileen Pennock, :
Appellant :
:
v. :
: No. 675 C.D. 2021
Kennett Consolidated School District :
ORDER
AND NOW, this 1st day of April, 2022, the judgment of the Court of
Common Pleas of Chester County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge