S. Silfies v. City of Allentown

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stephanie Silfies,
Appellant
v. : No. 1796 C.D. 2019
SUBMITTED: September 17, 2020
City of Allentown
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: January 26, 2021
Stephanie Silfies (Plaintiff) appeals from orders of the Court of
Common Pleas of Lehigh County in her personal injury action against the City of
Allentown. The jury reached a defense verdict that the City was not negligent.
Plaintiff seeks a new trial based upon what she contends were prejudicial errors by
the trial court. We adopt the trial court’s opinion and affirm its order denying
Plaintiff’s post-trial motion for a new trial.
The record in this case is voluminous, but the undisputed facts for
purposes of considering this appeal may be summarized as follows. On the
afternoon of July 20, 2015, Plaintiff took her teenaged son and his friend to Joseph
Daddona Park to eat lunch. Plaintiff parked her car and, with her son and his friend,
walked through Daddona Park to and across a pedestrian bridge in order to sit in the
shade of a tree. Upon reaching the end of the bridge, Plaintiff encountered a descent
consisting of two steps (the first step onto a single stone stair adjacent to the end of
the bridge and a second step to the ground). Plaintiff stepped off the bridge with her
right foot onto the single stair. Plaintiff fell and her right lower extremity—which
was previously compromised by a severe injury to her right ankle which had required
multiple surgeries, as well as amputation of all her toes'—suffered a compound
spiral fracture. After several months of unsuccessful treatment attempting to heal
the fracture, Plaintiffs right leg was amputated below the knee.
Plaintiff filed a complaint consisting of a single count of negligence
against the City in July 2017. Among the defenses raised in the City’s amended
answer and new matter was whether recovery was prohibited by what is known as
the Recreational Use of Land and Water Act (RULWA).? RULWA was enacted “‘to
encourage owners of land to make land and water areas available to the public for
recreational purposes by limiting their liability.” Section 1 of RULWA, 68 P.S. §
477-1. At the conclusion of the pleadings, the City filed for summary judgment
asserting immunity under RULWA and Plaintiff filed for partial summary judgment
to the effect that RULWA was inapplicable. The trial court denied both motions and
permitted testimony concerning the factors relevant to the applicability of RULWA
and the ultimate issue of whether RULWA applied.
A jury trial was held from June 10 to June 14, 2019. Prior to trial,
Plaintiff filed a motion in limine to preclude evidence and argument that she was
' The history of previous injuries to Plaintiffs right lower extremity is difficult to piece
together. Her treating podiatrist’s record storage company had lost several years of records at the
time he was deposed.
* The Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P.S. §§ 477-1 — 477-8. We
note that during the pendency of the case, RULWA was amended by the Act of October 24, 2018,
P.L. 671 (effective December 24, 2018). These amendments were enacted before the filing of the
cross-motions for summary judgment and became effective after the filing of said motions. The
trial court applied the former law and there is no argument before this Court that the trial court
erred.
obligated to use and/or negligent for not using another path. By order dated February
1, 2019, the trial court denied this motion. Also prior to trial, the trial court ruled
that Plaintiff’s conviction of a summary offense of retail theft was admissible as
evidence of crimen falsi.
After the parties had rested, the City moved for a nonsuit and directed
verdict on the basis of RULWA, which motion the trial court denied. The trial court
conducted a charging conference with counsel for the parties, during which the trial
court determined as a matter of law that RULWA did not apply and that the City was
not immune from suit.? The trial court instructed the jury to disregard all testimony
on RULWA (Notes of Testimony June 14, 2019; Reproduced Record “R.R.” at
1870a), and, with the agreement of the parties, gave instructions on the applicable
law using the points for charge jointly offered by the parties regarding the issues of
negligence, factual cause, comparative negligence, and the duty of a landowner to a
public invitee and the duty owed to Plaintiff.
During deliberations, the jury submitted a written question to the trial
court:
If Recreational law does not apply then what law apply’s
[sic] to the bridge concerning maintenance [sic], safety[,]
and signage? And how does it apply to people with
disabilities?
(Court Ex. 1; R.R. at 2095a.) The trial court conferred with counsel outside the
jury’s presence. The tral court denied Plaintiff’s request to instruct the jury on
signage requirements under the Americans with Disabilities Act of 1990 (ADA).*
> Plaintiff had requested a supplemental jury charge advising the jury to ignore the testimony
of the City’s expert witness, John Nawn, P.E., to the effect that RULWA applied.
*42 U.S.C. §§ 12101-12213.
The trial court responded to the jury’s question by stating that the only legal standard
applicable to the circumstances of the case was negligence and that RULWA was
inapplicable. Noting that some jurors shook their head “yes” to the potential
rereading of the jury charges and others shook their head “no,” the trial court asked
the jury to go back and talk about it, offering to reread the entire charge if the jury
wished him to do so. Shortly thereafter, without requesting the rereading of the
charge or further instruction, the jury returned with a defense verdict by a vote of 11
to 1, finding that the City was not negligent. The trial court denied Plaintiffs post-
trial motion for a new trial and, upon appeal to this Court and the filing of a statement
under Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure by Plaintiff,
issued an opinion under Pa. R.A.P. 1925(a).
On appeal, Plaintiff raises the following issues, which we have
paraphrased for the sake of conciseness:
1. Whether the trial court created prejudicial error by
denying Plaintiff's motion for partial summary judgment
on RULWA and directing that evidence of the
applicability of the law be developed/reconsidered at trial,
thereby creating unnecessary prejudicial confusion of
issues for the jury; and whether the error was adequately
remedied by the trial court’s charge to disregard any
evidence on RULWA.
2. Whether the trial court committed prejudicial error by
not properly handling the jury question and failing to
reread various charges and not answering questions
concerning the duty owed to persons with disabilities.
3. Whether the trial court committed prejudicial error in
denying Plaintiff's motion in limine to preclude evidence
and argument that she was obligated to use or negligent
for not using a different path and/or that she assumed the
risk by her choice of paths.
4. Whether the trial court committed prejudicial error by
ruling prior to trial that Plaintiff could be cross-examined
on a prior guilty plea of retail theft in 2012 and giving a
charge on crimen falsi where there was not a “certified
conviction” of the offense and the offense was eligible for
expungement.
(Pl.’s Br. at 4-5.)
We have carefully reviewed the tral court’s opinion under
Pennsylvania Rule of Appellate Procedure 1925(a), which we believe ably addresses
these issues. Therefore, we adopt the trial court’s opinion (appended hereto) and
affirm the trial court’s denial of Plaintiff's post-trial motion for a new trial.
BONNIE BRIGANCE LEADBETTER,
Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stephanie Silfies,
Appellant
v. No. 1796 C.D. 2019
City of Allentown
ORDER
AND NOW, this 26" day of January, 2021, the December 5, 2019
opinion of the Court of Common Pleas of Lehigh County appended hereto is
ADOPTED and the order of that court denying Appellant Stephanie Silfies’ post-
trial motion for a new trial is AFFIRMED.
BONNIE BRIGANCE LEADBETTER,
Senior Judge
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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION
Stephanie Silfies
- V§ - ‘
Allentown City : File No, 2017-C-2213
Assigned Judge: Edward D. Reibman
OPINION
* * *
APPEARANCES:
Michael A. Snover, Esq.
LAW OFFICE OF MICHAEL A. SNOVER
Bethlehem, PA
--On behalf of Plaintiff Stephanie Silfies
Maraleen D. Shicids, Esq.
FITZPATRICK LENTZ & BUBBA, P.C.
Center Valley, PA
--On behalf of Defendant Allentown City
REIBMAN, P. J.:
Plaintiff Stephanie Silfies (“Silfies”) suffered injuries when she fell at approximately
6:00 p.m. on July 20, 2015, while crossing a pedestrian bridge located within the Defendant City
of Allentown's Joseph S. Daddona Lake & Terrace Park (“Daddona Park”). A Jury tna] was
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held from June 10, through June 14, 2019, that resulted in a verdict in favor of the Defendant
City of Allentown (the “City”).!
Daddona Park consists of eleven acres of land which were gifted to the City in 1932. It
includes greenspace, a manmade lake, an amphitheater, a portion of Cedar Creek and a
pedestrian bridge over Cedar Creek as one of several ways to access a picnic area. The lake was
constructed in 1934/1935. The bridge was affixed to the property as early as 1938. Silfies fell
while crossing the bridge. In essence, Silfies claimed the City was negligent in failing to
properly maintain the bridge. She raises seven errors in her post-trial motions, each of which
will be addressed seriatim.
I. Applicability of the Recreational Use of Land and Water Act
Prior to trial, Silfies filed a motion for partial summary judgment and the City filed a
motion for summary judgment on the applicability of the Recreational! Use of Land and Water
Act (the “RULWA”), 68 P.S. §§ 477-1 - 477-8. The RULWA was adopted “to encourage
owners of land to make land and water areas available to the public for recreational purposes by
limiting their liability.” 68 P.S. 8477-1. It provides, subject to certain conditions, that:
... an. owner of land owes no duty of care to keep the premises safe
for entry or use by others for recreational purposes, or to give any
warning of a dangerous condition, use, structure, or activity on
such premises lo persons entering for such purposes.
68 P.S. §477-3. It specifically includes “picnicking” as a “recreational purpose” for which the
protected land may be used. 68 P.S. §477-2 (3). And it defines “land” as follows:
... land, roads, water, watercourses, private ways and buildings,
structures and machinery or equipment when attached to the realty.
' Tria! was initially scheduled to commence on February 4, 2019. A jury was selected and empaneled on
that day and told to return at 9:30 the next morning for opening statements and the presentation of evidence. At
approximately 9:15 a.m. on February 5, Silfies requested a delay of an undetermined amount of time due to a
medical emergency, The court declared a mistrial, and the trial was re-scheduled to June 10, 2019.
?
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68 P.S, 8477-2 (1).
The City contended it was iramune from liability under the RULWA; Silfies contended
the RULA did not apply to this case, The court denied both motions by order of February 4,
2019. In teaching that decision, the court reviewed various cases to discern the relevant factors
relied upon to determine the applicability of the RULWA and concluded it was not clear on the
then-developed record that either party was entitled to summary judgment on that issue as a
matter of law.? Accordingly, evidence as to the applicability of the RULWA was admitted at
trial.
The court's analysis, as reflected by its order of February 4, 2019, follows:
* * *
One of those conditions to maintain imnwmity is that the owner of the land not charge
an admission price or fee tv the person or persons who enter upon the land for recreational use.
See 68 PS, §477-6. That condition was met here; [Silfies] did not, and was not required to, pay 2
fee or admission charge to enter or maintain her presence within the park.
In analyzing whether RULWA bars (Sillies*} claims, the Court must determine (1)
whether RULWA applics to the park as a whole and (2) whether RULWA applies to the bridge
upon which {Silfies] allegedly fell. See Stone v. York Haven Power Co., 749 A.2d 452 (Pa. 2000)
(RULWA applied to a lake created by the damming of a river to which the public has access for
recreational activities, but not to the dam which ereated the lake): BazAioum v. Cnty. of
Westmoreland, 747 A.2d 441,446 (Pa. Comm. Ci, 2000) (RUL.WA applied to a 400-acre park of
largely unimproved land held open to members of the public for recreational use without charge,
bul not to a slide erected in the park, stating “the proper focus should be on the specific area where
the injury occurred or the specific area which caused the injury” to determine whether RULWA is
applicable or not). See alse Ruspi v. Glatz, 69 A.3d 680, 688 (Pa. Super. Ct. 2013) (even though
“the areas surrounding [the at-issue, farge body of water] are highly developed, ... this Court’s
focus must be on the specific land where the injury occurred, rather than on the property as a
whole.) (emphasis added).
* € *
A number of factors are deemed relevant in determining whether a particular piece of
land or improvement thereon js covered by RULWA. Those factors include use, size, location and
openness, see Rivera v. Phila. Thealogical Seminary, 507 A.2d | (Pa, 1986), and the nature of any
improvement on the land. Sve Yano v. Consol, Ruil Corp., 744 A.2d 279, 282 (Pa, Super, Ct.
F999),
It appears RULWA would apply, generally, to the park, However, whether RULWA
would apply to the bridge depends upon the application of those factors, particularly whether the
bridge is merely an ancillary structure thal supports the recreational activities available at the-park,
in this case picnicking, or is a structure thal creates a recreational activity and requires regular
maintenance and inspection for it to be used salely, See Stone, 749 A.2d at 455,
3
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In Stone, RULWA did not apply to the dam because the dam created the lake for
recreational activity and proper maintenance of the dam was esscntial to its intended use of
blocking the river for the continued. safe existence of the lake, Similarly, in Bashioum, RULWA
did not apply to the slide because it was not an ancillary structure or improvement to the park, but
@ separate activity installed in the park by the county that required regular inspection and
maintenance so that the slide could be used and enjoyed safely, 747 A.2d at 445. RULWA did not
apply in Walsh v. City of Philadelphia, 585 A.2d 448 (Pa. 199]), where a person fell ina hole in
the blacktopped surface between a basketball court and a bocce court. The Supreme Court stated:
When a recreational facility has been designed with improvements that
require regular maintenance io be safely used and enjoyed, the owner of the
facility has a duty to maintain the improvements. When such an improved
facility is allowed to deteriorate and that deterioration causes a foreseeable
injury to persons for whose use the facitily was designed, the owner of the
facility is subject to liability,
585 A.2d at 450. See also Rivera v. Phila. Theological Seminary, 507 A.2d | (Pa. £986) (ro
immunity for indoor swimming pool); City of Phila, v. Buda, 595 A.2d 206 (Pa. Commw. Cr,
1991} (no immunity for outdoor swimming pool}: Divino v. Borough of Pottstown, 598 A.2d 357
(Pa. Cammw. Ct, 1994) (no immunity for playgrounds); Brown v. Tunkhannack Fwp., 665 A2d
1318 (Pa. Commw. Ct. 1995) (no immunity for bleachers at a baseball field); Seifert v,
Downingtown Avec Sch, Dist, 604 4.2d 757 (Pa, Cominw. Ct. 1992) (no immunity for lacrosse
field); and Avis v. Commonwealth of Pennsylvania, 633 A.2d 1115 {Pa. 1993) (oo immunity for a
grassy area contained within the highly developed Penn’s Landing area of Philadelphia).
On the other hand, RULWA was held 19 apply in Brezinskt v. City. of Allegheny, 694
A.2d 388 (Pa. Coramw. Ct. 1997), where plaintiff fell down an earthen embankment, not on any
improvement, in a county-owncd park while walking downhill from a picnic pavilion to the
parking Jot. The land had been “sculpted” for the picnic pavilion, but the Conymonwealth Court
concluded the park was unimproved because the “sculpting” of the land was a “one-time
modification [of the land that) would not have required regular maintenance ...°. 694 A.2d at 390,
See also Pomeren y. Com., Dept, of Env’t Res., 550 42d 852 (Pa. Commw. Ct. | 988) (immunity
where falf in two-inch mud hole on outdoor earthen hiking trail in state-park not a dangerous
improvement because it was natural and not man-made); Yanno v. Consol, Rall Corp., 744 A.2d
279 (Pa, Super. Ct, 1999} {immunity where injury on abandoned railroad trestle located on 9.6-
inile strip of remote and rural wooded property}; Davis v. City of Phila, 987 A.2d 1274 (Pa,
Commw. Ct, 2010) {immunity for somewhat regularly mowed field, but no evidence of any
specific improvements thereon or that the field required maintenance); and Stanton v. Lackawanna
Energy, Lid, 95t A.2d 1181 (Pa. Super. Cr. 2008) (immunity for single, skeletal gate located on
over one hundred acres of largely unimproved land).
Summary judgment is appropriate “o]nly where there is no genuine issue as to any
material fact and it is clear that the moving party is entitled to judgment as a matter of law.”
Dailey v. A.W. Chesterton, Inc, 37 A.3d UE75, 1179 (Pa, 2012). Here, the bridge is a manmade
Structure on an cleven-acre park within the City of Allentown, nof on a large, undeveloped tract of
Jand in a remote and rural area. The record indicates the City has, at the very least, maintained the
area around the bridge on a semi-regular basis. See, e.y., Holtzman Dep. 47:8-48:5, April 2, 2018
{superintendent of City's park maintenance testifying that if he “came to [the subject] pedestrian
bridge ... and saw that it was in [a weeded] condition” he would “weed whack that area to clean
up” the bridge's steps); Alkhal Dep. 52:24-54:16, April 2, 2018 (City’s maintenance worker
indicating that “if he saw vegetation growing around the pedestrian bridge,” he would “weed
whack” and “spray” the area). As the City, through its employees, has by afl accounts assumed
the responsibility of keeping the bridge area tidy so thal it could remain as an access point to
Daddona Park, i cannot thereafter shirk from “the norma} duty of maintaining fits} property ina
4
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One of the factors to be considered in determining whether the RULWA applied was
whether the bridge was an improvement to a recreational facility that required “regular
maintenance to be safely used and enjoyed.” Walsh v. City of Philadelphia ,585 A.2d 445, 450
(Pa. 1991). The record established pre-trial indicated the City maintained the premises
intermittently by mowing or weeding only when vegetation was observed growing around the
pedestrian bridge. However, Silfies fell in July, and, at trial, the City’s maintenance worker
testified he would mow the grass, trim the weeds, and spray around the pedestrian bridge on a
weekly basis, instead of on an intermittent basis, from the months of April through November,
when Silfies fell. N.7: June J, 20/9, at 125:15-17, 126:15-19, With that clarification, the court
concluded as a matter of law the City was not entitled to the immunity afforded by the RULWA;
instructed the jury to disregard all testimony on the RULWA, A.D. June 14, 2019, at 105:1-5:
and gave standard instructions on the applicable law using the points for charge jointly offered
by both parties regarding the issucs of negligence, factual cause, comparative negligence and the
duty of a landowner to a public invitee and the duty owed to Silfies.?
manner consistent with the property's designated and intended use by the public.” Harflefd v.
Penn Twp., 12 A.3d 482, 488 (Pa. Comm. Cr. 2010} (citation omitted),
The City mows, weeds, and sprays the park on a somewhat regular basis, already
expending resources and energy to maintain it. Although the bridge does not create any
recreational activity independent of that already available on the iand, it is a necessary conduit to
access the picnic area which the City has created, It is reasonable to expect that the bridge, located
where it is and the function it serves, would be used regularly by a diverse group of persons to
access the picnic area. It is also reasonable to expect ihe City, which owns and maintains the park,
to therefore maintain the bridge in an appropriate condition. The court may revisit this decision in
the event the evidence at trlal fails to support these observations.
; Both parties agreed io have the court ins(ruci the Jury on the law of negligence in accordance with the
standard points found in the Pennsylvania Suggested Standard Civil Jury Instruction (“Pa.S.8.C.J,1") and submitted
Joint requested points for charge for the court’s consideration. Based upon this agreement the court advised both
counsel that the jury would be given the following suggested standard jury instructions:
Pa.$.8.C.J.1 $3.00- Issues in the case,
Pa.8.8,C.J.113.10- Negligence,
Pa5.$2.113,20- Factual cause.
Pa.S.$.C.J,1 13.180- Plaintiff's Comparative Negligence,
5
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Once the court concluded the RULWA was not applicable, ultimately adopting Silfies’
position, any allegation of error by Silfics for not making that decision earlier in the trial was
harmless, Whitton v, HA, Gable Co., 200 A. 644, 646 (Pa,1938),4
Nonetheless, Silfies claims the jury was confused by allowing into evidence testimony
conceming the City’s immunity under the RULWA. Specifically, Silfies claims the jury was
confused by the testimony of the expert witnesses who discussed the RULWA and the court
failed to give an effective instruction to the jury that it disregard the testimony concerning the
applicability of the RULWA,
In pertinent part, the court’s initial charge to the jury, before the jury began its
deliberations, provided:
Now, during the course of the trial, you heard testimony from a
numiber of the witnesses regarding the Recreational Use of Land
and Water Act. There was some testimony about whether a fee was
charged or not lo enter the park, There was also some other
testimony regarding what the act requires and whether it applies m
this case. The decision of whether that act applies in this case is a
Jepal decision and not a factual decision, and I have made a
decision in the case that the act does not apply. So any testimony
with respect to the Recreational Use of Land and Water Act, you
may disregard,
N.T,, 6/14/19, at 164:48-105:5,
Pa.8.8.C.J.} £3.190- Apportionment of Comparative Negligence and Single Defendant,
Pa.8.8.C.J.1 13,210- Plalntiff's Contributory Negligence,
Pa.S.8.C.).1 13.260- Instruction Summarizing Issues for Jury,
Pa.S.S.C.1.1 13.290- Verdict Forin-Comparative Negligence Defeuse Asserted-Single Defendant.
NT. June 13,2019, at 212316-213:1.
The court also gave the standard jury instructions concerning (he duty of care that an owner or occupier of
land owed an individual based upon the status of the person whe comes upon the land as stated in Pa.S.S.C.).1 18.00,
18.10, and 18.40. AZ. June 73,2019, at 213:2-25,
4 It is ivonic that Silfies now claims the court erred by not deciding the applicability of the RULWA pre-trial,
Hf anything, the record then-developed militated in favor of deciding the applicability of the RULWA in the City's
favor and a dismissal of the case.
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The fact the jury found for the City does net prove any jurors were confused. Rather, to
support her conclusion the jury was confused, Silfies relies upon a written question the jury
submitted to the court during its deliberations. That question was:
tf Recreational law does not apply then what law apply’s fsic] to the bridge
concerning maintenance [sic], safety and signage? And how does it apply to
people with disabilitics?
Court Exhibit No. 1,
In response to the jury’s question, the court conferred with counsel! outside the presence
of the jury> AT. June 14, 2019, at 145, It proposed to respond to the jury’s question by
Tejterating its earlier instruction that the jury disregard the RULWA and that it is to apply the Jaw
of negligence to the facts of the case. AUT. /une /4, 2019, at 146:2-5, Silfies requested the court
instruct ihe jury that no fee was required to be paid for the City to owe a duty to an invitee and
that the court re-read the standard jury instruction regarding landowner liability. ° M7. June /4
2019, at 146:6-12. The court responded that negligence was the only legal standard applicable
to the circumstances of the case and that the RULWA was not applicable, Silfies’ counsel
agreed. NT. June J4, 20/9, at 148:18-25,
The jury was returned to the courtroom and the court then responded as follows to the
jury’s question:
; In her post-trial motion, Silfies states: “The Court read the question to the parties in open Court just prior to
the jury’s return to the Courtroom but did not provide a written copy of the question to the parties at the time of
trial.” Plaintiffs* [sie] Post-Trial Motions for a New Trial, fited on 6/21/19, at p.10, Y15. The import of that
statement is not clear. In any event, Silfies did not request to see the written question and did not take any exception
to the way the court dealt with it.
s Silfies specifically requested that the court reread Pa.8.S.C.J. 1 18.40 which refers to the duty of a
landowner owed io an invitee, The Court had already given the jury instructions concerning the City’s duty owed to
Silfies as a public invitec, and the City was not contesting Silfies status in that regard. WT. dune 14, 2019, at 157:20-
25-158:5. Silfies’ reference to a fee relates to the application of the RULWA. The court had already ruled the
RULWA was inapplicable. Granting Silftes’ proposed jury instruction might have created confusion by
referencing inapplicable law. A trial court must instruct the jury on the correct legal principles applicable to the
facts presented at trial, Coumnonweaith v Cox, 686 A.2d 1279, 1286 (Pa. 1996),
7
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THE COURT: There is a statute in Pennsylvania Called the
Recreational Use of Land and Water Act. In order for a particular
property to come under that statute, there are a number of factors
that have to be met. I decided as a matter of law those factors have
not becn met and, therefore, that statute does not apply in this case.
Even though you heard testimony during the course of the trial of
references to the Recreational Use of Land and Water Act and you
heard testimony regarding some of those factors that may be
applicable to the act, but I didn’t rule on that issue until T heard the
evidence, because I had to’ decide whether there were sufficient
factors there for the uct to apply. It was a legal decision not a factual
decision, which as I understand the law, it was my responsibility to
decide that question. 1 decided that the Recreational Use of Land
and Water Act has not been met. it’s not applicable, and you should
disregard any evidence with regard to that act.
What's Icft in this case is the issue of negligence, and it’s your
responsibilily to decide this case based upon the standards, the
definition of negligence that | gave you, and understanding what the
city’s obligation is to its public invitees, and | stated in my charge
that Ms. Silfies was a public invitec. So that aspect is how you have
to measure the obligations of both the city and Ms. Silffes in this
case. That is to say, was the City of Allentown negligent -- let me
back up.
First of all, understanding what the City of Allentown’s duty was to
its public invitee which included M{s. ]Silties. Secondly, did the city
breach that duty? Was it negligent in terms of dealing with that
duty? And if it was, was that negligence a factual cause of harm to
Ms. Silfies? If you answer yes to all of those, then you go to the
question: Was Ms. Silfies negligent, and was her negligence a
factual cause of harm to her? And if you answer yes to that,
then you do the apportionment between the two sides.
What you need to decide in this case is not the Recreational Use of
Land and Water Act. Forget that. I took it out of the case, What
you have to decide this case on are the standards that the city owes
to its public invitees and whether the city was negligent and if its
negligence was a factual cause of harm. Then, again, you go back to
Ms, Silfies and ask whether she herself was negligent and whether
her negligence was a factual cause of harm. I’m going to ask you to
go on back. Ifyou want me to read the charge back in terms of what
is negligence, the definition of negligence, if you want me fo read
factual cause, if you want me to read the public invitee standard, I'll
do that. I see some of you nodding yes, some nodding no, but what
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1 would like you to do is go on back there and talk about it
yourselves, 171] ask the lawyers to stay here a few moments and
see whether you want to come back in and you want me to reread
those charges, If you do, [ will. If you don't, keep deliberating.
Okay?
NT. June 14, 2019, at 156:25-159:42,
Silfies’ contention that the jury was confused because of the admission during the trial of
evidence concerning the RULWA is not based on any objective facts.
First, the jury’s note does not indicate any confusion about the RULWA, On the fact of
it, the jury’s note reflected its understanding and acceptance that the RULWA was not applicable
to the case: “If Recreational Jaw does not apply then what law apply’s [sic] ...”.
Second, the jury was instructed to disregard evidence conceming the RULWA, and it is
well-settled that juries are presumed to follow the instructions ofa trial court to disregard
inadmissible evidence. Commonwealth v, Simpson, 754 A.2d 126471272 (Pa. 2000).
Third, while some of the jurors nodded in the affirmative concerning a re-reading of the
charge with respect lo negligence, the jury was instructed to discuss it among their fellow jurors
first and then, if requested, thc court would read the charge to them again. The court had no idea
how many jurors and what portions of the charge should be re-read and did not want to invite the
possibility any of the jurors would initiate a discussion in open court about the charge or
anything ¢lsc while they were in the midst of their deliberations. Consequently, the jurors were
returned to the jury room and given the opportunity to identify any confusion and request a re-
reading of any specific areas of the charge rather than the court guessing what portion(s) of the
charge to review, ALT. June /4, 2079, at 159:7-12. The jury did not request any further
clarification before reaching its verdict. NT. fume 14, 20/9, at 159:25.
Fourth, during the charging confcrence with counsel before their closing arguments, the
court stated its intention to instruct the jury to disregard all evidence concerning the RULWA.
9
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THE COURT: | will give an instruction to the jury simply saying
that all the testimony with respect to the Recreational Use of Land
and Water Act should be disregarded,
NT. June 74, 2019, at 5:22-6:2, Nonetheless, Silfies’ counsel made reference to the RULWA in
his closing argument apparently in an effort to persuade the jury to disregard the opinion of the
City’s expert engineer, John Nawn (“Nawn”). 7. June 14, 2019, at 29: 13-30:6, 55:13-56:8,
That was a tactical decision by Silfies’ counsel. It was not prompted by any references to the
RULWA made by the City in its closing argument, See, N.7. June 14, 2019, at 66:24-91:19, It
is entirely possible that Silfies’ continued refercnces to the RUL'WA after he was informed the
court would instruct the jury to disregard all evidence of the RULWA and, in the absence of any
such references made by the City, created any confusion about which Silfies now complains.
Finally, after the entry of the verdict, Silfies requested the jury be polled, N.7: June J4,
2019, at 161:22-23. Eleven out of the twelve jurors answered a simple “no” to the first question
“Was the City of Allentown negligent.” No juror, including the juror who had responded “yes”
to that question, made any statement that would indicate any juror was confused. NT. June 14
2019, at 162:1-25.?
I}. The Court’s Response to the Jury’s Question
Silfies claims the court failed to respond properly to the jury’s question by not re-reading
the charges on negligence, factual cause, comparative negligence and the duty of a landowner to
7 The court extended an invitation to both counsel to meet for pedagogical reasons with those jurors who
wished to remain voluntarily after the verdict had been recorded and the jury formally dismissed. See, NT. June t4,
2819, at 161:22-23. NLT. June 14, 209, at 164:7-10. The court advised the jury in the presence of counsel that such
meeting was not public and not subject to an appeal. é@. at lines | 1-12. Silfies argues that Juror discussions during
this meeting proved that the jury was confused about issues in the case. it is well settled that a trial court may not
consider evidence outside ihe record in making its determination. Commonwealth v. McCutfough, 201 A.3d 221,
243 (Pa. Superfor Ci. 2018). Silfies has raised another allegation of error based upon these discussions concerming
Silfies’ choice to use the pedestrian bridge rather than taking an alternate route to the picnic area, The court cannot
consider the off-the-recard discussion as the basis for the requested relief. fd.
10
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a public invitee and failed to answer the jury's question concerning the duty owed to persons
with disabilities,
The standard jury instructions on the issues of negligence, factual cause and public
invitee status had already been given to the jury, Silfics did not object to them at that time; her
only objection to the charge was to the mitigation of damages charge. N.7. June /4, 2019, at
137:3-12, There was no need to repeat charges already given to the Jury absent a specific
request from the jury as the jury charge accurately reflected the applicable law. Czimimer v.
Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1052 (Pa. Super. Cr. 2015). Furthermore, Silfies
did not object that the negligence charges were not re-read in response to the jury’s question or
that the jury was returmed to its deliberations. Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d
134,116 (Pa. 1974).
In response to the jury’s question, Silfies’ counsel requested a charge regarding the
American with Disabilities Act,® (“ADA”) alleging the City’s failure to properly advise Silfies
about handicapped accessible entrances to the park contributed to causing the injuries Silfies
suffered. N.T. June /4, 20/9, at 152:3-10. That request was denied because a violation of the
ADA was not pled, and although there was some testimony regarding the ADA,’ neither party
requested an instruction on the ADA prior to the commencement of deliberations. That issue
was deemed waived. NT. June /4, 2019, at 153:9-12, See, Jones vy. Ont, 191 A.3d 782, 792
(Pa.2018). As Silfies acknowledged in her brief in support of her post-trial motions, “the real
issues in the case, [were] whether there was a hazardous condition that the City had actual and/or
constructive notice of and negligently failed to correct, guard or warn, etc. ....” Plaintiffs’ [sic]
Brief in Support of Post-Trial Motions for a New ‘rial, filed August 28, 2019, at 11.
Pub, L. No. 101-336, 104 Stat. 328 (1990).
3 See, MF, dune 15, 2019, af 49-30, 3075,
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Il. Evidence Concerning Choice of Paths or Assumption of Risk
Silfies claims the court erred by denying her pre-trial motion in imine that would have
precluded the City from offering evidence at trial that would tend to prove that Silfies’ decision to
cross the pedestrian bridge was a conscious assumption of a known risk of harm, commonly called
the choice of paths doctrine. That doctrine concerns a reasonable person’s assumption of a known
or obvious risk of harm, and “if'so, whether a safe way was available so that it is clear that [Silfies]
assumed the risk, and [this remained] a question of fact for the jury.” Commonwealth v. Harris,
522 A.2d 184, 186 (Pa. Commw, Ct. 1987). The City had submitted two requested points for
charge regarding assumption of risk and the choice of paths doctrine. The City withdrew the
requested point for charge regarding the choice of paths doctrine, NT. June 14, 2079, at 16:17,
and the court sustained Silfies’ objection and withdrew the point for charge regarding assuniption
of risk. NT. June Jf 2019, at 16:25. Thus, the jury was not instructed on either point of Jaw, so
Silfies suffered no prejudice in this regard,
At trial Silfies acknowledged her appreciation of the risk she took while stepping down
from the pedestrian bridge and onto a stone step. She admitted that in hindsight she should have
stopped, waited for help, and that she would hesitate whenever faced with a decision to use steps.
NT. June 11, 2019, at 85:19-86:7, 87:8-11. The City’s reference to Silfies’ testimony during its
closing argument was [air comment and proper to rebut Silfies’ contention that she had little time
io truly appreciate the risk of harm that crossing the pedestrian bridge posed to her. The City’s
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argument was neither inflammatory nor prejudicial and was relevant to the issue of Silfies’ alleged
comparative negligence, !"
Since the jury found the City was not negligent, neither the choice of paths doctrine nor
the assumption of risk doctrine was at issue, rendering any alleged error harmless. Bovle_v,
independent Lift Truck, Inc., 6 A.3d 492, 496 (Pa, 2010). (“[W]here a jury ...finds no negligence
on the part of a defendant, purported error regarding questions of comparative and/or contributory
negligence are non- prejudicial and does not serve as a basis for the award of a new trial.”). Finally,
Silfies has also waived any allegation of error regarding the City’s closing argument by failing to
object at the time the statement was made or at the completion of the City’s closing argument.
Commonwealth v. Willians, 455 A.2d 632, 634 (Pa. 1983).
IV. The Testimony of the City’s Liability Expert, John Nawn
The court denied Silfics’ proposed instruction that the jury disregard all testimony by
John Nawn, the City’s expert in civil engincering, pedestrian safety and walkway surfaces,
Instead, the court instructed the jury to disregard all evidence of the RULWA; it did not instruct
the jury to disregard ail of the testimony from Mr. Nawn. Although Mr. Nawn had testified on
the applicability of the RULWA, he also testified to the condition of the pedestrian bridge and
opined it presented no hazardous conditions, all of which were relevant to the issue of
negligence. Specifically, he testified he walked across the bridge at least a half dozen of times
and took photographs and measurements of it. He showed the jury the photographs while
describing the bridge and determined the bridge presented no hazardous conditions and was nat
unsafe, Seg, e.g, V7. June $3, 2019, at 37-38, 45-48, $1, 58, 63, 65 and 70, That testimony
was relevant to Silfies’ own understanding that “the real issues in the case, [were] whether there
The court instructed the jury using Pa.S.$.C.J, 1. §3.180- Plaintiff's Comparative Negligence. Both counsel
agreed to the submission of this instruction.to the jury.
13
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was a hazardous condition that the City had actual and/or constructive notice of and negligently
failed to correct, guard or warn, etc. ..." Plaintiffs’ [sic] Brief’ in Support of Post-Trial Motions
for a New Trial, filed August 28, 2019, at 11.
V. Testimony Concerning the City’s Maintenance of Another Bridge
Silfies claims the court erred in granting the City’s motion in lintine precluding Silfies
irom presenting any evidence regarding another pedestrian bridge at the City’s Cedar Beach
Park. which is a separate and different park in the City. Silfies contended evidence regarding the
care and maintenance of a pedestrian bridge al its Cedar Beach Park would have been relevant on
the issue of the Cily’s knowledge of ihe alleged defects that were present in the pedestrian bridge
used by Silfies at Daddona Park.
Silfies fell at Daddona Park using a pedestrian bridge constructed and maintained within
its confines. Any evidence proffered regarding the pedestrian bridge at another, separate and
distinct park is not relevant to prove liability for Silfies’ fall at Daddona Park. Any comparison
between the pedestrian bridges at the two parks, even if tangentially relevant, would have unduly
confused or misled the jury as the proffered evidence would have tended to suggest that the City
was obligated lo construct and maintain the pedestrian bridges at Daddona Park in the same
manner as Cedar Beach Park. and any alleged failure to do so would be evidence of negligence.
Crespo v, Hughes, 167 A.3d 168, 180 (Pa. Super. Ct. 2017) (A caurt has broad discretion to
exclude potentially misleading or confusing evidence.). Generally, the admission of evidence of
other circumstances is extremely limited, and only relevant if it tends to make material issues
more or less probable. Hurkins v Calumet Realty Co, 614 A.2d 699, 703 (Pa, Super. Ct. 1992).
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Vi. Cross-Examination of John Nawn Concerning Ways 1o Make the Bridge Safer
Silfics claimed the court erred in limiting the cross examination of the City’s expert
engineer, John Nawn. Mr. Nawn was asked whether there was any way to make the bridge’s
descent safer to pedestrians, A.T. June J3 20/9, at 104:11-13. He responded, “Well, I don’t
think it’s unsafe to begin with.” Jed. at 11-15. Silfies was then precluded from asking the witness
whether the bridge’s descent could be made “safer” for pedestrian use, N.7. June 13, 2019, at
104:16-19,
Whether the pedestrian bridge could be made safer for future pedestrian use would not
assist the jury in determining whether the City breached its duty of care to Silfies on July 20,
2015, See, Pa.R.E, 401. (“Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence: and the fact is of consequence in determining the
action.”) @, The City was not obligated to provide a “safer” bridge, but to provide a bridge that
did not pose a hazardous condition or that was not negligently maintained,
VIL Silfies’ 2013 Summary Conviction for Retail Theft
Silfes claims her 2013 summary conviction for retail theft should not have been admitted
into evidence because it was not a conviction fora crime and Silfies was too poor to pay the costs
for expungement. Summary retail theft is a crime. See, Commonwealth v. Young, 638 A.2d 244,
246 (Pa, Super. Ct. 1994). When attacking ihe credibility of a witness, Pa.R.E, 609 requires the
admission of evidence that the witness has been convicted of a crime involving dishonesty or false
statement. Title 18 Pa.C.S.A. §9122(b)(3)(i) allows for an individual to petition the court for the
expungement of a summary offense when they have been free of arrest or prosecution for five
years following their conviction. Whether Silfies could have obtained expungement of the
conviction record is not relevant; the conviction was not expunged.
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Silfies is clearly disappointed with the jury’s decision that the City was not negligent in
maintaining the bridge. However, there is no basis fo conclude she is entitled to a new trial.
Accordingly, her post-trial motions are denied.
BY THE COURT: j
December 5, 2019 Edward D.Reibman, PJ.
ié