Griffin, J. v. Berdaoui, N. ( 2021 )

J-A13038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH FRANCIS GRIFFIN AND : IN THE SUPERIOR COURT OF
CYNTHIA GRIFFIN : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1521 EDA 2020
NOUREDDINE BERDAOUI AND :
ADVANCED DISPOSAL SERVICES :
EASTERN PA, INC. :
Appeal from the Judgment Entered June 23, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 170602027
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 9, 2021
Appellants Joseph Francis Griffin and Cynthia Griffin appeal the
judgment entered by the Court of Common Pleas of Philadelphia County in
favor of Appellees Noureddine Berdaoui and Advanced Disposal Services
Eastern PA, Inc. (“ADS”).1 We affirm.
In June 2017, the Griffins initiated this civil action against Mr. Berdaoui
and ADS to recover damages in connection with the April 8, 2016 motor
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* Former Justice specially assigned to the Superior Court.
1 The Griffins purported to appeal from the order denying their post-trial
motion. However, “an appeal to this Court can only lie from judgments
entered subsequent to the trial court's disposition of any post-verdict motions,
not from the order denying post-trial motions.” Young v. Lippl, ___A.3d___,
2021 PA Super 56 (Pa.Super. Mar. 31, 2021) (citing Johnston the Florist,
Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514 (Pa.Super. 1995) (citation
omitted)). We have amended the caption accordingly.
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vehicle incident in which Mr. Griffin was injured. The Griffins asserted that
Mr. Berdaoui was negligent and that ADS was vicariously liable as Mr.
Berdaoui’s employer.
The Griffins also brought direct liability claims against ADS for negligent
hiring, entrustment, training, supervision, and retention. In addition, Mrs.
Griffin brought a claim for loss of consortium. ADS and Mr. Berdaoui filed an
answer containing denials and affirmative defenses that included their claim
that Mr. Griffin was comparatively negligent.
In October 2019, the parties proceeded to a jury trial at which the
following factual background and procedural history was developed:
On April 8, 2016, at about 6:20 A.M., Mr. Joseph Griffin was
on his way to work. He was riding his 1998 Harley-Davidson
motorcycle traveling about 35 mph, Eastbound on Germantown
Pike. Mr. Griffin was more than 400 feet from the Felton Road T-
intersection when he first perceived a large Mack trash truck
driving out of Felton Road on his left side. The truck was being
driven by Mr. Noureddine Berdaoui (Ber-da-wee).
Mr. Griffin watched as the truck exited Felton Road and he
“panicked.” Oct. 28, 2019, N.T. 81, 158-160. Mr. Griffin watched
the truck the entire time as it drove out from the left curb across
the Westbound Lanes and then as it crossed the Eastbound lanes
of Germantown Pike going into the Davis Heating and Cooling Co.
property on his right. Oct. 21, 2019, N.T. 155-160; Oct. 28, 2019,
N.T. 168. The trash truck never stopped on Germantown Pike
and did not block the roadway. Oct. 28, 2019, N.T. 62-64.
Mr. Griffin explained that he mistakenly believed that Mr.
Berdaoui failed to stop at the Felton Road stop sign. Oct. 21,
2019, N.T. 206-209. Mr. Griffin “tooted” his horn. He then tooted
continuously and flashed his high beams as he continued driving
at 35 mph toward the trash truck. Oct. 21, 2019, N.T. 215-219.
Mr. Griffin observed the trash truck travel across the four
lane highway, however, he did not slow down or brake because
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he believed he had the right of way. He explained at Oct. 21,
2019, N.T. 223-224:
“I thought he ran the stop sign. … But when I was riding my
motorcycle, which is a matter of seconds when this
happened, I thought he did not stop. But he did not stop
for me. He did not yield the right of way. I still have the
right of way and I didn’t have a traffic light or a stop sign.
I had the right of way.”2
See also, Sept. 28, 2016, N.T. 21-24, 33-35.
A surveillance video from an adjacent building confirms that
when Mr. Griffin steered his front wheel to the left and “dropped
his bike,” the back end came up throwing Mr. Griffin into the air.
His leg got caught in the motorcycle and Mr. Griffin suffered a
broken ankle and several broken bones in his right foot. Oct. 21,
2019, N.T. 158, 160; Oct. 28, 2019, N.T. 41-43. Today he walks
with a limp. There was no impact or collision between the
two vehicles.
Mr. Berdaoui testified that he was operating a commercial
front loader trash truck on the morning of the incident. Oct. 25,
2019, N.T. 19-20, 49-58. He has been driving for Defendant-ADS
since 2012[.] Oct. 25, 2019, N.T. 17, 100-102. Mr. Berdaoui
explained to the jury his CDL training, the ADS safety classes and
road programs, Federal Motor Carrier Safety Regulations and
Manuals, simulation video for accident and defensive driving tests,
and ADS pre-trip inspection protocols. Oct. 25, 2019, N.T. 21-37.
[Mr. Berdaoui] testified on Oct. 25, 2019, N.T. 86-87:
“Yes. As I got into the driveway with my front wheel, I heard
like a beep, like a horn. And then I turned to the right, and
I saw Mr. Griffin on his motorcycle start losing control of his
motorcycle.
***
I saw Mr. Griffin losing control, and then I saw the
motorcycle sliding, and then I saw the motorcycle going
behind my truck.”
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2 Mr. Griffin was presented with his sworn testimony on September 28, 2016,
in which he averred he saw Mr. Berdaoui’s truck as Mr. Griffin approached the
railroad tracks on Germantown Pike. Mr. Griffin indicated that he applied his
brakes as he crossed the railroad tracks. N.T., 10/21/19, at 45-48.
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Mr. Berdaoui testified that his truck is 30 feet long and
weighs 40,000 pounds when empty. Oct. 25, 2019, N.T. 159,
163. Germantown Pike’s four lanes are 54 feet across,
approximately 26 feet wide each direction, and 13½ feet each
lane. The jury heard that the front of the ADS truck was in the
Davis Heating & Cooling driveway. Only the rear of the trash truck
was on Germantown Pike. The left lane of the Eastbound Traffic
was open. Oct. 25, 2019, N.T. 160-164.
Robert Lynch, a mechanical engineer, was the defense
expert in collision reconstruction. Oct. 28, 2019, 10-22. He
reviewed with the jury the surveillance video, Google Earth
photos, laser scan images and engineering calculations to provide
his analysis about negligence causation and liability matters of
behalf of the Defendants. Oct. 28, 2019, N.T. 23-172. Mr. Lynch
opined that Plaintiff-Griffin had sufficient distance ahead to be able
to stop if his speed was 35 mph. Oct. 28, 2019, N.T. 41-43.
Both the Plaintiffs’ expert, John Halikman, and the
Defendants’ expert, Robert Lynch, agreed that at 35 mph, the
motorcycle’s braking distance would be 58 feet. Oct. 22, 2019,
N.T. 222, 244-246; Lynch, Oct. 28, 2019, N.T. 54-57. Both
experts measured the distance on Germantown Pike from the
railroad tracks crossing to the area of the incident. Plaintiffs’
expert testified that the railroad tracks are 118 feet from the Davis
property driveway. Oct. 22, 2019, N.T. 243-44. Defendants’
expert measured 160 feet from the railroad tracks to the path of
the truck. Oct. 28, 2019, N.T. 55. If Plaintiff-Griffin had braked at
the railroad tracks, he could have stopped in less than 60 feet.
Oct. 28, 2019, N.T. 61-76. Additionally, the surveillance video was
played several times in real time and in slow motion. This
confirmed that the truck was not blocking the Eastbound lanes of
Germantown Pike when the motorcycle reached that area. Oct.
28, 2019, N.T. 96, 101.
Mr. Lynch described the incident as a “non-collision.” Oct.
28, 2019, N.T. 167. He concluded that Mr. Griffin failed to
appreciate what was happening on the road ahead until it was too
late. As a result, although there was sufficient time and distance
for the Plaintiff to perceive the truck, and react to the truck to
avoid losing control of his vehicle, the Plaintiff was injured. Oct.
28, 2019, N.T. 101-103.
Trial Court Opinion (T.C.O.), 6/23/20, at 1-5 (emphasis in original).
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At the conclusion of the Griffins’ case-in-chief as plaintiffs, ADS and Mr.
Berdaoui filed a motion for compulsory nonsuit limited to the Griffins’ direct
liability claims against ADS.3 Although the Griffins initially contested the
motion, the Griffins’ counsel later stated on the record that the Griffins would
not oppose the motion for nonsuit as the trial court made evidentiary rulings
that precluded the Griffins from offering certain evidence with respect to their
claims of direct liability against ADS. N.T., 10/25/19, at 12-13. On October
25, 2019, the trial court granted the motion for nonsuit as unopposed.
At the conclusion of the trial, on October 31, 2019, the jury rendered a
verdict in favor of Mr. Berdaoui and ADS, finding Mr. Berdaoui was not
negligent. On November 9, 2019, the Griffins filed a motion for post-trial relief
seeking Judgment Notwithstanding the Verdict (JNOV) or in the alternative, a
new trial. The trial court heard oral argument and directed the parties to
submit post-trial briefs. After the Griffins were granted an extension to file
their post-trial brief, the Griffins filed their post-trial brief nineteen days late.
On June 23, 2020, the trial court denied the Griffins’ post-trial motion
in its entirety and entered judgment in favor of Mr. Berdaoui and ADS.4 On
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3 ADS and Mr. Berdaoui did not move for nonsuit on the negligence claim
against Mr. Berdaoui or the vicarious liability claim against ADS.
4 This Court has recognized that:
Unlike the rules of criminal procedure requiring a court to act
within 120 days of the filing of the post-trial motion or it will be
deemed denied by operation of law, see Pa.R.Crim.P. 720(B)(3),
the rules of civil procedure do not provide a similar automatic
(Footnote Continued Next Page)
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July 22, 2020, the Griffins filed a timely notice of appeal and subsequently
complied with the trial court’s direction to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Griffins raise six issues for our review on appeal:
I. Whether the prior adjudication of the negligence and liability
of the driver of the trash collection truck properly served to
collaterally estop relitigation of the negligence and liability
of the driver of the trash collection truck such that the issues
of negligence and liability of the driver of the trash collection
truck should not have been submitted to the jury?
II. Whether the evidence of a trash collection truck improperly
entering the roadway into the path of a motorcycle
conclusively established the negligence of the driver of the
trash collection truck warranting relief in favor of the injured
motorcycle driver?
III. Whether the trial testimony of the trash collection truck
driver should have been considered as part of [the Griffins’]
case in passing upon the motion for nonsuit?
IV. Whether it was error to preclude evidence of information
gathered by the initial responding officer?
V. Whether it was error to exclude evidence supporting the
direct negligence claims against the employer of the trash
collection truck driver?
VI. Whether it was error to instruct the jury on the assured clear
distance rule on evidence of a moving trash collection truck
improperly entering the roadway into the path of a
motorcycle?
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mechanism. Rather, a party is required to praecipe for entry of
judgment to move the case forward, where the court has not
decided the motion within 120 days after its filing. Pa.R.C.P.
227.4(1)(b).
Wenk v. State Farm Fire & Cas. Co., 228 A.3d 540, 545 (Pa.Super. 2020).
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Griffins’ Brief, at 6-7.
First, the Griffins claim the trial court erred in submitting the issues of
negligence and liability to the jury as they assert that such issues were
conclusively established in a prior proceeding. Specifically, the Griffins point
to the September 29, 2016 decision of the magisterial district court finding in
favor of Nationwide Insurance Company (Mr. Griffin’s insurer) against ADS
and Mr. Berdaoui on a small claims judgment for property damage to Mr.
Griffin’s motorcycle.
Citing the doctrine of collateral estoppel, the Griffins claim that the
Magisterial District Court’s determination that Mr. Berdaoui and ADS were
jointly and severally liable for the Griffins’ damages from the April 8, 2016
incident precludes relitigation of the issues of negligence and liability.
However, the Griffins failed to develop an argument in the lower court
or on appeal including pertinent authority and analysis to demonstrate why
they would be entitled to employ offensive collateral estoppel to preclude
further litigation of the disputed issues. See Office of Disciplinary Counsel
v. Kiesewetter, 889 A.2d 47, 50-51 (2005); Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 329-31 (1979)) (setting forth factors to ensure fairness
in the offensive application of the collateral estoppel doctrine).
Our courts have consistently held that “[w]here an appellate brief fails
to provide any discussion of a claim with citation to relevant authority or fails
to develop the issue in any other meaningful fashion capable of review, that
claim is waived.” In re Major, ___Pa.___, 248 A.3d 445, 454 (2021) (quoting
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Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 924 (2009)). As
a result, we find this issue to be waived.
Even assuming the Griffins had properly developed this issue for review,
the judgment issued by the Magisterial District Court did not conclusively
determine the issues of negligence and liability as Mr. Berdaoui and ADS
perfected an appeal for a trial de novo in the Court of Common Pleas of
Montgomery County.5
This Court has held that a judgment entered at the magistrate level is
nullified by perfection of an appeal de novo. Indep. Tech. Servs. v.
Campo's Exp., Inc., 812 A.2d 1238, 1241 (Pa.Super. 2002). See
Gladstone Partners, LP v. Overland Enter., Inc., 950 A.2d 1011, 1014
(Pa.Super. 2008) (stating that “the purpose of an appeal de novo is to give a
litigant a new trial without reference to the record established in the minor
court”). In Indep. Tech. Servs., this Court found that the plaintiff could not
be allowed to execute upon a judgment entered by a district magistrate as the
defendant perfected an appeal de novo to the Court of Common Pleas and the
case was dismissed because the plaintiff failed to move the case forward.
Similarly, in this case, once ADS and Mr. Berdaoui perfected their appeal
de novo, the magistrate’s judgment was extinguished. While Nationwide filed
a complaint in the Court of Common Pleas, the parties thereafter settled the
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5 To the extent that the Griffins’ collateral estoppel argument could be
characterized as properly developed, the Griffins have not shown that they
are entitled to relief on this claim.
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dispute and Nationwide filed a praecipe to settle and discontinue the case.
Therefore, the Griffins have failed to show that any prior judgment exists that
on which they could base their collateral estoppel claim. As such, we find this
claim to be meritless.
Second, the Griffins claim the trial court erred in denying their request
for JNOV based on their claim that there was sufficient evidence to show Mr.
Berdaoui was negligent in improperly entering the roadway, which the Griffins
claim caused Mr. Griffin’s injuries.
However, we note that while the Griffins argued in their post-trial motion
that the trial court should have granted their request for JNOV, the Griffins
did not develop this particular argument based on the sufficiency of the
evidence in their court-ordered post-trial brief. Our rules of civil procedure
provide that “post-trial relief may not be granted unless the grounds therefor,
are specified in the motion. The motion shall state how the grounds were
asserted in pre-trial proceedings or at trial. Grounds not specified are deemed
waived unless leave is granted upon cause shown to specify additional
grounds.” Pa.R.C.P. 227.1(b)(2).
Our Supreme Court has held that a trial court may find waiver of an
issue not developed in a court-ordered post-trial brief. Bd. of Supervisors
of Willistown Twp. v. Main Line Gardens, Inc., 638 Pa. 323, 334, 155
A.3d 39, 45 (2017). The Supreme Court explained that:
Because Rule 227.1(b)(2) does not require supporting briefs, the
failure to file a brief does not violate the rule, and neither the trial
court nor the appellate courts may find waiver pursuant to the rule
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for failing to do so. In its discretion, based upon its conclusion that
it requires further advocacy on the issues, a trial court may
request that the parties file briefs. In the event of non-compliance
with such a request, it is for the trial court, again in its discretion,
to find waiver or, alternatively, to overlook the noncompliance and
rule on the merits of the issues presented.
Main Line Gardens, Inc., 638 Pa. at 334, 155 A.3d at 45.
In this case, on November 21, 2019, the trial court entered an order
setting forth a post-trial briefing schedule and specified that the post-trial
briefs were to be electronically filed with hard copies delivered to the judge’s
chambers and specified that address. Although the Griffins raised twenty
issues in their post-trial motion, they only developed five of those arguments
in their brief, which did not include their request for JNOV based on the
sufficiency of the evidence. While the Griffin’s post-trial brief included the
standard of review for a general request for JNOV, the Griffins argued that
“JNOV is warranted because the issue of [Appellees’] liability was conclusively
established in a prior proceeding.” Griffins’ Post-Trial Brief, 1/27/20, at 13.
Consequently, in denying the Griffin’s post-trial motion, the trial court
filed an opinion in which it addressed the Griffins’ request for JNOV in the
context of its claim developed in its post-trial brief based on its claim that Mr.
Berdaoui and ADS’s liability was established by the magistrate. The trial court
did not address the Griffins’ request for JNOV based on the sufficiency of the
evidence. Accordingly, we find this particular claim waived. See Main Line
Gardens, Inc.
Third, the Griffins claim that the trial court erred in failing to consider
Mr. Berdaoui’s testimony before passing upon the motion for nonsuit.
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However, we find this claim is also waived as the Griffins failed to pursue their
opposition to the motion for nonsuit in the lower court.
This Court has recognized that “[a] trial court may enter a compulsory
nonsuit on any and all causes of action if, at the close of the plaintiff's case
against all defendants on liability, the court finds that the plaintiff has failed
to establish a right to relief.” Baird v. Smiley, 169 A.3d 120, 124 (Pa.Super.
2017) (citing Pa.R.C.P. 230.1(a), (c); Commonwealth v. Janssen
Pharmaceutica, Inc., 607 Pa. 406, 8 A.3d 267, 269 n. 2 (2010)).
As noted above, on October 24, 2019, after the Griffins had rested their
case, ADS moved for a compulsory nonsuit on the Griffins’ direct liability
claims against ADS relating to negligent hiring, entrustment, training,
supervision, and retention. N.T., 10/24/19, at 186, 192. In response, the
Griffins asked the trial court to consider Mr. Berdaoui’s testimony before ruling
on ADS’s motion for nonsuit, but the trial court noted that it had been the
Griffins’ burden to secure Mr. Berdaoui’s testimony for their case in chief:
[Griffins’ Counsel:] We have not yet – we have not heard yet from
the defense in this case. And as you’ll recall, we tried to call Mr.
Berdaoui as to cross this afternoon, and we were told that he
would be set up as a witness for tomorrow so he does not appear
in our case in chief.
If we elicit evidence from Mr. Berdaoui or Mr. Beck, who
we’ve been told are going to testify, then it goes to the -- it goes
to those claims that are in the complaint.
[Trial Court:] I’m going to ask you a question now, Mr. Andris.
[Griffins’ Counsel:] Sure, Your Honor.
[Trial Court:] It’s the same question I asked at our motions in
limine but about a different topic. Okay? Whose burden is it to
get Plaintiff’s case in chief before Plaintiff rests?
[Griffins’ Counsel:] It is the Plaintiff’s, Your Honor.
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N.T., 10/24/19, at 193-94. The trial court did not rule on ADS’s motion for
compulsory nonsuit at that time and adjourned court for that day.
The next morning, the Griffins indicated they were no longer opposing
ADS’s motion for nonsuit:
[Griffins’ Counsel:] As you’ll recall, we had a motion in limine on
this issue, and your ruling was that the Plaintiffs and all parties
were precluded from offering evidence with respect to negligent
hiring, negligent entrustment, the background checks, prior
accidents, subsequent accidents, the DOT certifications, Mr.
Berdaoui’s termination from his prior employment, those incidents
that led to that. That was all addressed on a motion in limine.
And because of that, Plaintiffs did not and could not offer evidence
on those issues. And for those reasons, we are not opposing the
motion at this time.
[Trial Court:] Just for the record, this is different that what I heard
yesterday.
[Griffins’ Counsel:] Correct, Your Honor. I asked for an evening
to look for a case and contemplate it. And at this time, Your
Honor, we’re not opposing the motion.
[Trial Court:] Okay. Then it’ll be Defendants’ motion is granted
as unopposed.
N.T., 10/25/19, at 12. At no point did the Griffins’ counsel ask the trial court
to reopen the record to allow for the Griffins to call Mr. Berdaoui to testify in
their case-in-chief.
This Court has held that “[s]tatements by a party's counsel that the
party has no objection to a ruling constitute an affirmative waiver that bars
the party from raising that issue in post-trial motions or on appeal, even if the
party had previously fully raised and preserved the issue.” Livingston v.
Greyhound Lines Inc., 208 A.3d 1122, 1136 (Pa.Super. 2019) (citation
omitted).
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The Griffins’ failure to object to the trial court’s decision to grant ADS’s
motion for nonsuit as unopposed constituted an affirmative waiver of their
claim that the trial court should have considered Mr. Berdaoui’s testimony
before ruling on the motion for nonsuit.
In their fourth and fifth arguments on appeal, the Griffins claim the trial
court made erroneous evidentiary rulings.
When we review a ruling on the admission or exclusion of
evidence, … our standard is well-established and very narrow.
These matters are within the sound discretion of the trial court,
and we may reverse only upon a showing of abuse of discretion
or error of law. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous. In addition, [t]o constitute reversible
error, an evidentiary ruling must not only be erroneous, but also
harmful or prejudicial to the complaining party.
McFeeley v. Shah, 226 A.3d 582, 596 (Pa.Super. 2020) (citation omitted).
In their fourth issue on appeal, the Griffins argue that the trial court
erred in precluded them from admitting evidence of information gathered by
Officer Timothy Warner, who responded to the accident scene. In reviewing
the record, we agree with the trial court’s assessment that this issue is
meritless as the Griffins never attempted to call Officer Warner to testify as
either a lay or expert witness.
As noted above, the trial court granted ADS’s and Mr. Berdaoui’s motion
to preclude the admission of certain evidence, including the traffic citation
Officer Warner gave Mr. Berdaoui for the traffic incident in question. During
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argument on the motion in limine, the trial court noted that Mr. Berdaoui’s
decision to plead guilty to a summary offense for the accident was not
admissible in the instant case.
The Griffins’ counsel indicated on a side note that he had planned to call
Officer Warner to testify as to his investigation, his determination as to the
cause of the accident, and the fact that he issued a citation to Mr. Berdaoui.
The Griffins’ counsel argued that Officer Warner could testify about the
accident even though he did not witness it occur. N.T., 10/21/19, at 61-65.
The trial court indicated that it was unsure whether Officer Warner could
testify as to his conclusions about the traffic incident and asked the Griffins’
counsel to provide a memorandum with precedent to support their claim.
As the Griffins never submitted the memorandum that the trial court
requested and did not attempt to call Officer Warner as a lay or expert witness,
the trial court did not make any evidentiary ruling that prevented Officer
Warner from testifying as a lay or expert witness. As such, this claim is
meritless.
In their fifth claim, the Griffins argue that the trial court abused its
discretion in precluding them from introducing evidence to support the Griffins’
direct negligence claims against ADS as Mr. Berdaoui’s employer.6
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6 While Mr. Berdaoui and ADS ask this Court to find this issue waived as the
Griffins did not oppose the entry of nonsuit on their claims of direct negligence
against ADS, we decline to do so as the Griffins’ counsel expressly indicated
on the record that the Griffins felt the trial court’s evidentiary rulings precluded
them from presenting necessary evidence to establish their claims against
ADS and thus, avoid nonsuit.
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As noted above, in addition to the Griffins’ claim that ADS should be
held vicariously liable for the actions of its employee, Mr. Berdaoui, the Griffins
brought direct liability claims against ADS for negligent hiring, entrustment,
training, supervision, and retention. While the Griffins acknowledge that Mr.
Berdaoui’s driving record was inadmissible for the purpose of establishing his
negligence in the instant case, they argue Mr. Berdaoui’s driving record was
admissible under Pa.R.E. 404 for a purpose other than conformity on a
particular occasion, i.e., to show that ADS was negligent in entrusting its
company truck to Mr. Berdaoui.
The trial court found that the evidence of Mr. Berdaoui’s driving record
was inadmissible as the Griffins failed to show that any of Mr. Berdaoui’s prior
driving infractions and/or accidents were sufficiently similar to the pertinent
facts of this case. The Griffins do not acknowledge or address this particular
holding and failed to provide any relevant detail about Mr. Berdaoui’s driving
record that they sought to admit. We find this claim to be waived for lack of
development. See In re Major, supra.
However, even assuming arguendo that the trial court erred in excluding
this evidence, such error would be harmless. “To constitute reversible error,
a ruling on evidence must be shown not only to have been erroneous but
harmful to the party complaining. An evidentiary ruling which did not affect
the verdict will not provide a basis for disturbing the jury's judgment.” B & L
Asphalt Indus., Inc. v. Fusco, 753 A.2d 264, 270–71 (2000) (quoting Hart
v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989)).
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In reviewing the record, we note that Griffins could not prevail on their
claims of direct negligence against ADS as they did not first establish that
ADS’s employee, Mr. Berdaoui was negligent. With regard to the theory of
negligent entrustment, this Court held that:
[i]t is negligence to permit a third person to use a thing or
to engage in an activity which is under the control of the
actor, if the actor knows or should know that such person
intends or is likely to use the thing or to conduct himself in
the activity in such a manner as to create an unreasonable
risk of harm to others.
... However, our cases do require that the entrustee
be causally negligent before the entrustor may be
held liable through negligent entrustment.
Christiansen v. Silfies, 446 Pa.Super. 464, 667 A.2d 396, 400
(1995), appeal denied, 546 Pa. 674, 686 A.2d 1307 (1996) (citing
Restatement (Second) of Torts § 308).
Phillips v. Lock, 86 A.3d 906, 913 (Pa.Super. 2014) (emphasis added).
As a result, even if the trial court allowed the Griffins to admit evidence
of Mr. Berdaoui’s driving record to attempt to show ADS was negligent in
entrusting their truck to Mr. Berdaoui, the Griffins could not establish ADS was
liable on their direct negligence claims in light of the jury’s finding that Mr.
Berdaoui was not negligent with respect to Mr. Griffin’s accident.
In their last claim, the Griffins contend that the trial court abused its
discretion in choosing to instruct the jury on the “assured clear distance” rule.
Before we analyze this argument, we note Mr. Berdaoui and ADS claim the
Griffins waived this challenge by failing to object when the trial court finished
charging the jury. Although the Griffins had previously objected to this
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particular instruction during the charging conference, Mr. Berdaoui and ADS
argue that the Griffins made an affirmative statement waiving all objections
to the instructions after the jury instructions had been given.
In Jones v. Ott, 648 Pa. 76, 191 A.3d 782 (2018), the Supreme Court
held that even though the appellant had preserved her challenge to the jury
instructions in the first instance, the appellant affirmatively waived her ability
to file a post-trial challenge to these instructions by stating that she no longer
had any “issues with the charge” after the trial court had asked the parties if
they wished to raise any issues to the charge as given. The Supreme Court
further explained that:
When a trial judge directly asks for any objections [after giving
jury instructions], counsel must directly state them, explicitly or
by reference to prior recorded objections, on pain of waiver.
As a general matter, we do not suggest that our rules of civil
and appellate procedure require counsel to state some additional
objection on the record if (unlike in this case) there already is a
record of the ruling upon the proposed point for charge. But, when
the trial court specifically asks whether a party objects to a given
charge, it is reasonable to expect that counsel will in fact object
or remind the court of a previously offered instruction rather than
abandon the point. This is unexceptional.
Id. at 92, 191 A.3d at 792.7 See also Livingston, supra.
In this case, after the trial court had instructed the jury, the trial court
asked the parties if it had “covered everything,” to which the Griffins’ counsel
responded, “[y]es, Your Honor.” N.T., 10/29/29, at 109-10. Consistent with
____________________________________________
7 Although portions of the Jones opinion constitute a plurality decision, the
relevant language cited in this decision were joined by a majority of the
Justices and has precedential effect.
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our decision in Jones, we find the Griffins affirmatively waived their challenge
to the trial court’s jury instruction when their counsel offered no opposition
when the trial court specifically asked the parties whether they objected to its
charge as given to the jury. We decline to review this issue further.
For the foregoing reasons, we affirm the judgment in favor of Mr.
Berdaoui and ADS.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2021
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