Loomis, J. v. Bomba, M., Bomba, G. and Farber, W. ( 2021 )

J-A23007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH LOOMIS AND JANAN : IN THE SUPERIOR COURT OF
LOOMIS, INDIVIDUALLY AND AS : PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE :
OF LEAH LOOMIS, DECEASED :
:
Appellants :
:
:
v. : No. 367 MDA 2021
:
:
MIA BOMBA, GINA BOMBA, WILLIAM :
FARBER, JR. :
Appeal from the Judgment Entered March 15, 2021
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2018-00930
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
DISSENTING STATEMENT BY STEVENS, P.J.E.: FILED: DECEMBER 1, 2021
I respectfully dissent from the Majority’s disposition in this matter. My
review of the record simply does not support the Majority’s conclusion that
Appellants were not prejudiced by the trial court’s failure to instruct the jury
on the pertinent standards adopted by the Pennsylvania Fish and Boat
Commission (“PFBC”) in the Pennsylvania Boating Handbook.
Quite the contrary, although the record reflects that the trial court
quoted some of the language in the Pennsylvania Boating Handbook in
charging the jury in conjunction with Pa. SSJI (Civ.) §§ 13.110, there was no
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* Former Justice specially assigned to the Superior Court.
J-A23007-21
specific mention of the standard that boat operators are responsible for
their boat’s wake and any damage caused by it. See Notes of Testimony,
10/9/20 at 9-12; see also Appellants’ brief at 26, Proposed Point of Charge
No. 4.
This court has long recognized that “[t]he primary duty of the trial judge
in charging the jury is to clarify the legal principles involved so that the jury
may comprehend the questions that it must decide.” Sehl v. Vista Linen
Rental Serv. Inc., 763 A.2d 858, 863 (Pa.Super. 2000) (citation omitted).
“[W]hen 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.”
Salsgiver Communications, Inc. v. Consol. Communications Holdings,
Inc., 150 A.3d 957, 962 (Pa.Super. 2016) (citations and internal brackets
omitted).
As discussed, Appellants rely on this court’s decision in Wood v. Smith,
495 A.2d 601 (Pa.Super. 1985), appeal dismissed as improvidently
granted, 518 A.2d 266 (Pa. 1986). Wood involved an action for trespass
and wrongful death against a contractor who had erected scaffolding outside
the decedent’s home that ultimately led to his death. Id. at 602. The Wood
court found that the issue of defendants’ negligent construction of the
scaffolding was central to this case, and the trial court should have instructed
the jury regarding the legal significance of government and industry standards
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applicable to the scaffolding’s construction, including OSHA1 and ANSI,2 which
were presented as evidence at trial. Id. at 603. In reaching this conclusion,
the Wood court reasoned that “[w]ithout further explanation, the jury may
very reasonably have assumed that since the defendants were not required
by law to adhere to the OSHA or ANSI standard, their failure to do so was
irrelevant.” Id. at 603-604.
Instantly, the issue of Appellee Mia Bomba’s negligent operation of the
motorboat and her failure to adhere to the standards adopted by the PFBC in
the Pennsylvania Boating Handbook was central to this case.
At trial, both parties’ experts acknowledged that the responsibilities of
a person operating a watercraft in this Commonwealth are set forth in the
Pennsylvania Boating Handbook. Specifically, Appellants’ expert, Captain Kyle
McAvoy, testified that the Pennsylvania Boating Handbook requires that boat
operators must be aware of and are responsible for their wake speed. Notes
of Testimony, 10/6/20 at 23. Likewise, Appellees’ own expert, Captain
Stephen Richter, acknowledged that Bomba’s responsibilities as a licensed
boat operator were “outlined in the Pennsylvania Safe Boating Handbook” and
included, inter alia, being responsible for the boat’s wake and any damage
caused by it. Notes of Testimony, 10/8/20 at 30, 45.
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1 Occupational Health and Safety Act.
2 American National Standards Institute.
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Based on the foregoing, Appellants have demonstrated that the jury
instruction in this case was inadequate as to the standard of care Appellee
Bomba owed to decedent. Appellants clearly suffered prejudice on account of
the trial court’s failure to charge the jury that boat operators are responsible
for the boat’s wake and any damage caused by it.
Just as in Wood, such failure of the trial court to properly instruct the
jury in this matter may have very well led the jury to incorrectly conclude that
Appellee Bomba was not required by law to adhere to the industry standards
memorialized in the Pennsylvania Boating Handbook. See Wood, 495 A.2d
at 603-604.
Accordingly, I would find that the trial court abused its discretion in
instructing the jury, would reverse the judgment entered in favor of Appellees,
and remand for a new trial. Therefore, I respectfully dissent.
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