Koziar, M. v. Rayner, N.

J-A18032-18
2018 PA Super 331MARIANA KOZIAR, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NEAL T. RAYNER AND ANDREA :
RAYNER, :
:
Appellants : No. 3883 EDA 2017
Appeal from the Order Entered October 31, 2017
in the Court of Common Pleas of Delaware County
Civil Division at No(s):2014-009389
BEFORE: STABILE, J., STEVENS, P.J.E.* and STRASSBURGER, J.**
OPINION BY STRASSBURGER, J.: FILED DECEMBER 07, 2018
Neal T. Rayner and Andrea Rayner (collectively, the Rayners) appeal
from the October 31, 2017 order, which granted the motion for post-trial
relief filed by Mariana Koziar (Koziar). Upon review, we reverse.
We set forth the following facts based upon the testimony presented at
trial.1 On November 13, 2012, Koziar was working as a house cleaner for
the Universal Group2 and had been assigned to clean the Rayners’ home
1
At trial, Koziar testified with the assistance of a certified translator. Koziar,
born in the Ukraine, spoke “Ukrainian[,] Russian[,] and [a] little bit of
English[.]” N.T., 9/26/2017, at 13-14.
2
Prior to trial, the Rayners sought to join Universal Group as an additional
defendant. Motion for Leave to Join Universal Group as an Additional
Defendant, 7/27/2016. This request was granted by the trial court and the
Rayners filed a joinder complaint. Order, 8/22/2016; Joinder Complaint,
9/2/2016. However, prior to trial, after consideration of the Universal
(Footnote Continued Next Page)
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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with two co-workers. N.T., 9/26/2017, at 13, 23-24. She had not been to
the Rayners’ home prior to that day. Id. at 24. Koziar testified that she and
her co-workers arrived at the Rayners’ home at 5:00 p.m. and finished
cleaning around 7:00-7:15 p.m.3 Id. at 23, 28.
When she and her co-workers were finished, she followed her co-
workers through the laundry room and into the attached three-car garage.
She testified that she was the last one to leave the home, following her co-
workers since she “really didn’t know much about where to go and how to
go.” Id. at 29. It was then that she fell and injured her ankle. Koziar
testified as follows.
I was leaving the laundry room which was [l]it. When the door
to the laundry room closed there was no light. Since I saw the
[co-workers] in front of me I followed them because the garage
door was open. As I was walking out[ of the second garage
door,] stepping outside the garage[,] there was like a lip there.
I tripped and fell.
Id. Koziar testified that there were no lights inside or in front of the garage
and since it was her first time at the Rayners’ home she “didn’t know where
the switches were and [] was not looking for them.” Id. at 30. After her
fall, Koziar went “to the emergency room at Nazareth Hospital[.]” Id. at 98.
(Footnote Continued) _______________________
Group’s preliminary objections, the trial court dismissed the joinder
complaint with prejudice. Order, 5/1/2017.
3
Koziar recalled that when she arrived it was still light outside, although she
was unsure if it was still light out at the time she was leaving. Id. at 24, 28.
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When she was in the emergency room it was reported that Koziar
tripped by the garage entrance and fell. Id. at 100. The next day, Koziar
met with Dr. James V. Mackel, Jr. about her injuries, who recorded that
Koziar “was walking on the street and she inverted her left ankle.” Id. at
96. Koziar returned to see Dr. Mackel again on November 15, 2012, where
Dr. Mackel noted Koziar “gave [him a] history that was at a variance with
the history [he] was given yesterday. [He] was told that a garage door
[struck] her.” Id. at 98-99. As a result of her fall, Koziar suffered injures to
her left elbow and left leg. Id. at 35-36. The injury to her left leg,
specifically, her left ankle, required surgery, which was performed by Dr.
Mackel. Id. at 44-45.
On October 21, 2014, Koziar filed a premises liability/slip and fall
complaint against the Rayners alleging, inter alia, negligence. A jury trial
occurred that developed the aforementioned facts.4 In addition, Mr. Rayner
4 Koziar also presented the testimony of her medical expert, Dr. Derek
Donegan, whose videotaped deposition was played for the jury in lieu of live
testimony at trial. Dr. Donegan, an orthopedic surgeon, met Koziar in 2015.
Id. at 141, 147. Koziar presented “with a history of having a [left] ankle
injury in the form of an ankle fracture for which she has surgery in the past.”
Id. at 147. Koziar reported to Dr. Donegan that she was continuing to
experience discomfort from her surgery. Id. at 149-50. Based on his
examination, Dr. Donegan testified that the ankle was healed, but “she could
potentially benefit from having the hardware [in her leg] removed.” Id. at
158. Surgery was performed to remove the hardware on July 13, 2015. Id.
at 159. Dr. Donegan opined that the injury to Koziar’s ankle “was caused by
a traumatic event.” Id. at 169. Dr. Donegan said it would be common for
this type of trauma to occur if someone was to “fall” or had “some kind of
twisting injury.” Id. The Rayners did not dispute this medical testimony.
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testified. With the use of various photographs, Mr. Rayner explained the
condition of the driveway and the lighting inside and outside of the garage.
N.T., 9/27/2017, at 55-70. Mr. Rayner testified that the “lip” between the
garage apron and the garage floor was there prior to the Rayners’
purchasing the home, was in good condition, and was uniform across all
three garage doors. Id. at 71-72. Mr. Rayner testified that he never had
any issue with the area between the blacktop and the garage apron and if he
would have, he would have “addressed it very quickly.” Id. at 71. Mr.
Rayner stated that neither he nor anyone he knew was ever caused “to trip,
stumble or fall anywhere in the area of the garage apron.” Id. at 72.
The Rayners also presented the testimony of Robert Linn, an architect.
Mr. Linn testified that in his opinion he did not see any issues with the
design or construction of the lip and did not notice “any maintenance
concerns relative to what had transpired since the date of construction to the
date [he] inspected the property.” Id. at 138. Further, Mr. Linn testified
the illumination in the area where the injury purportedly occurred was
sufficient. Id. at 139.
On September 28, 2017, the jury returned a verdict, finding that the
Rayners were negligent but that their negligence was not a factual cause of
the harm suffered by Koziar. N.T., 9/28/2017, at 137-38; Verdict Slip,
9/28/2017, at 1-2 (unnumbered). No objections or exceptions were noted
on the record following the reading of the verdict. Id. at 142.
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On October 10, 2017, Koziar filed a timely motion for post-trial relief in
the form of a new trial on damages, or in the alternative, a new trial on all
issues. Therein, Koziar averred the jury verdict was “contrary to law and []
against the weight of the evidence.” Motion for Post Trial Relief,
10/10/2017, at ¶ 13. The Rayners filed a response on October 30, 2017,
opposing Koziar’s motion for post-trial relief and disputing Koziar’s
contention that the verdict was against the weight of the evidence.
Specifically, the Rayners argued that the “jury’s decision was consistent with
the instructions read to the jury by the trial judge[,]” and that the jury was
permitted to find that the Rayners were negligent, but that their negligence
was not a factual cause of Koziar’s injury. The Rayners’ Memorandum of
Law in Support of its Response to Koziar’s Post-Trial Motion, 10/30/2017, at
8-9 (unnumbered).
On October 31, 2017, the trial court issued an order granting Koziar’s
request for post-trial relief, vacating the jury’s verdict in its entirety, and
granting a new trial. Order, 10/31/2017, at 3. The trial court determined
that such relief was warranted because “once the jury determine[d] the
[Rayners were] negligent and only [Koziar’s] uncontested medical evidence
[was] presented during the trial, the jury’s verdict finding [the Rayners’]
negligence [was] not a factual cause of any injury or harm sustained by
[Koziar] is so disproportionate and inconsistent as to defy logic.” Id. at 2.
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On November 9, 2017, the Rayners filed a motion for reconsideration,
which the trial court subsequently denied. The Rayners timely filed a notice
of appeal, and both the Rayners and the trial court complied with the
mandates of Pa.R.A.P. 1925.
First, we address the Rayners’ claim that, because “Koziar failed to
object or take exception to any alleged inconsistency in the jury’s verdict at
the time of trial[,]” Koziar failed to preserve properly the claims alleged in
her post-trial motion. The Rayners’ Brief at 36-38, citing Criswell v. King,
834 A.2d 505, 508 (Pa. 2003) (“[W]hen a party seeks to challenge a jury
verdict on grounds that the jury returned inconsistent answers to
interrogatories, an objection to the inconsistency must be raised when the
verdict is rendered.”). Essentially, the Rayners view Koziar’s post-trial
motion as a request for a new trial based on an inconsistent verdict. The
Rayners argue that Koziar is barred from seeking relief on this basis because
she failed to object to the inconsistent verdict before the jury was dismissed.
Id. In support, the Rayners emphasize the language used by the trial court
in its order granting Koziar’s motion. See The Rayners’ Brief at 36 (citing
the trial court’s conclusion that the verdict was “‘so disproportionate and
inconsistent as to defy logic[,]’” and arguing the “trial court did not
characterize the issue as one of ‘weight of the evidence’ but as an issue of
verdict inconsistency.”) (citation omitted).
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In response, Koziar contends she filed a timely post-trial motion
“contending specifically that the verdict was ‘against the weight of the
evidence’ concerning causation.” Koziar’s Brief at 28, citing Criswell, 834
A.2d. at 512 (“[A] claim challenging the weight of the evidence is not the
type of claim that must be raised before the jury is discharged. Rather, it is
a claim which, by definition, ripens only after the verdict, and it is properly
preserved so long as it is raised in timely post-verdict motions.”).
Our review of Koziar’s timely filed post-trial motion confirms that
Koziar sought relief based upon her contention that the “verdict in this
matter [was] against the weight of the evidence.” Motion for Post Trial
Relief, 10/10/2017, at ¶ 27. As such, based on our holding in Criswell,
Koziar was not required to raise this issue before the dismissal of the jury,
and she preserved properly her weight claim for the trial court’s
consideration by filing a post-trial motion within ten days of the jury’s
verdict.5
Having concluded that Koziar did not waive her issues, we now
address the Rayners’ remaining claims, all of which concern the trial court’s
October 31, 2017 order granting Koziar’s post-trial motion. In its order
5
We are aware of the recent opinion of our Supreme Court in Stapas v.
Giant Eagle, ___A.3d___, 2018 WL 6070787 (Pa. 2018), and find it
distinguishable. There, the Court held that Giant Eagle was required to raise
its claim that the jury’s verdict was “premised on trial errors, correctable
before the jury is discharged,” before the jury was discharged. Id. at *1. In
contrast, here the claim is not based on trial errors, but rather is a claim
that the verdict is against the weight of the evidence.
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granting this motion, the trial court concluded that “once the jury
determine[d the Rayners were] negligent and only [Koziar’s] uncontested
medical evidence [was] presented during the trial, the jury’s verdict finding
[the Rayners] negligence [was] not a factual cause of any injury or harm
sustained by [Koziar was] so disproportionate and inconsistent as to defy
logic.” Order, 10/31/2017, at ¶ 9. The Rayners argue, inter alia, that this
conclusion was error. See Rayners’ Brief at 16-21. We agree.
We address the Rayners’ argument using the following standard.
Trial courts have broad discretion to grant or deny a new
trial. The grant of a new trial is an effective instrumentality for
seeking and achieving justice in those instances where the
original trial, because of taint, unfairness or error, produces
something other than a just and fair result, which, after all, is
the primary goal of all legal proceedings. Although all new trial
orders are subject to appellate review, it is well-established law
that, absent a clear abuse of discretion by the trial court,
appellate courts must not interfere with the trial court’s authority
to grant or deny a new trial.
Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121–22 (Pa. 2000)
(some citations and quotation marks omitted).
On appeal, the Rayners argue that while they conceded that Koziar
suffered an injury based on the medical evidence presented, they did not
concede that their negligence was a factual cause of Koziar’s injury.
Rayners’ Brief at 19. Thus, they argue that consistent with the instructions
presented to the jury, the jury was allowed to find that the Rayners were
negligent, but that the negligence was not a factual cause of Koziar’s
injuries. Id.-8-
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Generally, to prevail in a negligence case, a plaintiff must
demonstrate the following elements: (1) the defendant owed a
duty to the plaintiff; (2) the defendant breached that duty; (3) a
causal relationship between the breach and the resulting injury
suffered by the plaintiff; and (4) actual loss suffered by the
plaintiff.
Schemberg v. Smicherko, 85 A.3d 1071, 1073–74 (Pa. Super. 2014). Our
Supreme Court has defined factual cause “in the ‘but for’ sense, explaining
that a defendant’s allegedly wrongful act is a cause-in-fact if the plaintiff
proves that the harm he sustained would not have happened, but for the
defendant’s act.”6 Reott v. Asia Trend, Inc., 55 A.3d 1088, 1103 (Pa.
2012).
In this case, after closing statements, the trial court charged the jury,
providing, inter alia, instructions and legal principles for the jury to consider
during deliberations. Thus, the jury was apprised of the terms “negligence”
and “factual cause” and was presumed to have followed the instructions
given. See Maya v. Johnson & Johnson, 97 A.3d 1203, 1222 (Pa. Super.
2014) (“The law presumes that the jury will follow the instructions of the
court.”). As per these instructions, the jury was specifically tasked with
determining whether the Rayners were negligent and if so, whether their
6
In this case, the jury instructions given by the trial court accurately reflect
the applicable law. See N.T., 9/28/2017, at 96-101.
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negligence was a factual cause of Koziar’s injury.7 The fact that there was
uncontroverted medical evidence that Koziar suffered an injury does not
relieve Koziar of her burden of proving that it was the negligence of the
Rayners that caused her injuries.8
We find our decision in Daniel v. William R. Drach Co., 849 A.2d
1265 (Pa. Super. 2004) instructive. In Daniel, appellants, Musa N. Daniel
7
As part of its jury charge, the trial court submitted a verdict sheet with five
questions to the jury. In relevant part, the trial court told the jury that it
should consider first,
[q]uestion one, were [the Rayners] negligent? … If you answer
question one yes, go to question two. If you answer question
one no,[] Koziar cannot recover, and you should not answer any
further questions. Please advise the court officer you have
reached a verdict. Turning to the second sheet of the document,
at the top of the second sheet is question two. Was the
negligence of [the Rayners] a factual cause of any harm to
[Koziar]? … If you answer question two yes, go to question
three. If you answer question two no, [Koziar] cannot recover,
and you should not answer any further questions.
N.T., 9/28/2017, at 117-18. Thus, because the jury found the Rayners were
not a factual cause of Koziar’s injuries, they did not answer the remaining
questions on the verdict form.
8
In support, the trial court cites Womack v. Crowley, 877 A.2d 1279 (Pa.
Super. 2005), Burnhauser v. Bumberger, 745 A.2d 1256 (Pa. Super.
2000) and Marsh v. Hanley, 856 A.2d 138 (Pa. 2004). However, as
correctly noted by the Rayners, the court’s reliance on these cases is
improper because in these cases “there was an agreement of both parties
that the Plaintiffs sustained some injury as a result of their accidents. In
the instant matter, there was never any such agreement and, in fact, the
Rayners vigorously challenged causation and presented ample evidence of
other conflicting causes of [] Koziar’s injury.” Rayners’ Brief at 20
(emphasis in original). Moreover, these cases involve the allocation of
damages and not the finding of causation related to a defendant’s
negligence.
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and Arafa Daniel (Daniels), filed a complaint against appellee, William R.
Drach Co., Inc. (Drach), “for injuries sustained by Mr. Daniel following an
alleged slip and fall that occurred on [Drach’s] loading dock.” Id. at 1266.
Daniels claimed that “Mr. Daniel slipped on a wet and greasy spot on the
floor” that was negligently maintained by Drach. Id. The jury found that
Drach was negligent, but that this negligence was not a substantial factor in
causing Mr. Daniel’s injury. Id. Daniels filed a post-trial motion, which the
trial court denied and, after entry of judgment Daniels appealed.
On appeal, Daniels argued, inter alia, that the verdict was against the
weight of the evidence because “where a jury has found that a defendant
was negligent and the existence of an injury was conceded to and not
questioned by [the] defendant, the jury is not permitted to find [that] the
defendant’s negligence was not a substantial factor in bringing about at least
some of [the] plaintiff’s injuries.” Id. at 1268 (citation omitted). This Court
disagreed and found that the trial court did not err in denying the Daniels’
post-trial relief.
[W]e do not extrapolate from [the] case law that
regardless of the factual circumstances, a finding of negligence
combined with an uncontroverted injury automatically requires a
finding that the negligence was a substantial factor in causing
the accident that caused the injury. Rather, the aforementioned
case law is limited to a jury’s finding on whether the plaintiff was
injured in the accident. [Daniels] have misplaced their reliance,
as they are not here arguing about whether Mr. Daniel was
injured in the accident, for this issue is not in dispute. Instead,
the issue is whether [Drach’s] negligence caused the accident
that resulted in the injury.
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***
When we view the foregoing evidence in the light most favorable
to [Drach] as verdict winner, and the closing argument by
[Drach’s] counsel, we conclude that the verdict does bear a
rational relationship to the evidence presented at trial because
the jury could have found Mr. Daniel’s testimony relaying [sic]
his version of the events incredible, and it could have instead
accepted [Drach’s] theory of defense. It is important to
remember that at its crux this case is about a finding on
substantial factor, i.e., causation. Appellants argue that because
the jury found that [Drach] was negligent, and Mr. Daniel
alleged that such negligence was a substantial factor in causing
his injury, the jury was bound to accept this allegation as the
truth. However, in order for a defendant’s negligence to be
considered a substantial factor in bringing about certain harm to
a plaintiff, the negligence must constitute conduct [that] has
such an effect in producing the harm as to lead reasonable men
to regard it as a cause, using that word in the popular sense.
Clearly, [Drach’s] negligence, which is a breach of a duty of
care, was its failure to properly maintain its loading dock. But for
the jury to also have found that this negligence was a substantial
factor in causing Mr. Daniel’s injuries, it must have found that
this negligence produced the harm. Based on the evidence in
this case, the jury could properly have determined that the
negligence did not produce the harm[.]
Id. at 1268-1269, 1273 (quotation marks and some citations omitted;
emphasis in original).
In this case, Koziar provided several different accounts of how the fall
occurred, which the Rayners presented during Koziar’s cross-examination.9
9
These conflicting accounts included: (1) at trial she testified that she
walked out of the second garage door but at a deposition in September
2015, she stated she was not sure which door she exited through; (2) on
November 14, 2012, Dr. Mackel recorded that he was informed that Koziar
“was walking on the street and she inverted her left ankle[;]” (3) on
November 15, 2012, Dr. Mackel noted Koziar “gave [him] history that was at
a variance with the history [he] was given yesterday. [He] was told that a
(Footnote Continued Next Page)
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The jury could have well found that in one or more of the versions of events
provided by Koziar, the Rayners were negligent, but ultimately determined
that version was not where or how Koziar fell and sustained her injuries.10
Alternatively, the jury could have found that while the Rayners’ were
negligent, it was not their negligence, but rather Koziar’s own negligence
that caused her injuries. See Daniel, 849 A.2d at 1279 (concluding that
“the jury could properly have determined that the negligence did not
produce the harm because what caused Mr. Daniel’s injuries was not his slip
and fall on an oily and wet surface, but rather his loss of control of an 800
pound drum that had nothing to do with the condition of the floor.”)
(emphasis in original omitted). See also S.N.T. Industries, Inc. v.
(Footnote Continued) _______________________
garage door [struck] her[;]” (4) in the emergency room, Koziar told the
treating medical staff that she tripped by the garage entrance and fell but
the garage door did not fall on her; (5) in the initial complaint filed in this
case she pleaded she fell over debris in the garage that was in her walking
path; (6) in sworn interrogatories, Koziar relayed that when she was exiting
the garage, she tripped and fell “over an object left” in her “dark walking
path[;]” and (7) in her first amended complaint, Koziar pled that “she was
caused to trip and fall on the drop-off edge, the concrete garage floor[]
slab[] where it was dark and the area was not visible.” N.T., 9/26/2017, at
89, 96, 98-99, 100, 102-04, 106).
10
Koziar dismissed the different accounts given as translation errors,
asserting that her trial testimony accurately reflects what occurred.
However, it was in the province of the jury to assess the credibility of Koziar
and the other testifying witnesses and decide the weight such testimony
should be given. See Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998)
(“Credibility determinations are within the sole province of the jury. A jury is
entitled to believe all, part or none of the evidence presented.... A jury can
believe any part of a witness’ testimony that they choose, and may
disregard any portion of the testimony that they disbelieve.” (internal
quotation marks omitted)).
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Geanopulos, 525 A.2d 736, 740 (Pa. Super. 1987) (“Where the jury’s
verdict is supported by testimony which is not inherently improbable nor at
variance with admitted or proven fact or with ordinary experience, a new
trial will not be granted.”). For these reasons alone, we find the trial court
erred in granting Koziar’s post-trial motion.
However, further compounding its error, in its opinion to this Court,
the trial court found that the report generated by the Rayners’ medical
expert, Dr. Armando A. Mendez,11 who did not testify at trial and whose
report was not entered into evidence, was a judicial admission. Trial Court
Opinion, 2/13/2018, at 5-7. The trial court opined that the Rayners “made
the strategic decision not [to] present the expert medical testimony of” Dr.
Mendez because, based on the report, the Rayners “would have to concede
some injury” occurred. Id. at 7.
Not only do we find Dr. Mendez’s report not relevant as it relates to
the issue of causation, the report is not a judicial admission. A judicial
admission
must be a clear and unequivocal admission of fact. Judicial
admissions are limited in scope to factual matters otherwise
requiring evidentiary proof, and are exclusive of legal theories
11
Briefly, Dr. Mendez, hired by the Rayners, met with Koziar in anticipation
of trial. Based upon his review of the medical documentation and evaluation
of Koziar, Dr. Mendez authored an expert report in which he stated, inter
alia, that Koziar “sustained a fracture of the left lateral malleolus with mild
lateral subluxation of the talus on” November 13, 2012. Memorandum in
Support of Koziar’s Motion for Post-Trial Relief, Exhibit A, at 4. This report
was not presented to the jury at trial.
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and conclusions of law. The fact must have been unequivocally
admitted and not be merely one interpretation of the statement
that is purported to be a judicial admission. Jones v.
Constantino, [631 A.2d 1289, 1293–94 (Pa. Super. 1993)]
(finding no admission where “the evidence could be reasonably
construed to admit of more than one meaning”). An admission is
not conclusively binding when the statement is indeterminate,
inconsistent, or ambiguous. Dible v. Vagley, [612 A.2d 493,
499 (Pa. Super. 1992) (finding no admission in a statement in
which “pronouns are burdened with ambiguous antecedents, and
syntax is opaque” and that “to be an admission, a statement
must at least be intelligible [and its] subject matter ... readily
determinable”). When there is uncertainty surrounding a
conceded fact, it is the role of the judge or jury as fact finder to
determine which facts have been adequately proved and which
must be rejected.
John B. Conomos, Inc. v. Sun Co. (R & M), 831 A.2d 696, 713 (Pa.
Super. 2003) (some citations omitted). “A principle [sic] element of a
‘judicial admission’ is that the fact has been admitted for the advantage of
the admitting party.” Jewelcor Jewelers & Distributors, Inc. v. Corr,
542 A.2d 72, 76 (Pa. Super. 1988).
The statements within Dr. Mendez’s expert report are the opinions of
Dr. Mendez and not “clear and unequivocal admission[s] of fact.” See John
B. Conomos, Inc., 831 A.2d. at 713. Expert reports, by their very nature,
are subject to debate and contradiction by a dueling expert report or other
properly admitted evidence. Thus, we agree with the Rayners that the trial
court’s reliance on Dr. Mendez’s expert report to support its decision to grant
Koziar post-trial relief was an error.
In light of the foregoing, we find the trial court erred in vacating the
jury verdict and granting a new trial. We therefore reverse the trial court’s
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October 31, 2017 order and remand for the entry of judgment in favor of the
Rayners based on the jury verdict entered on September 28, 2017.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/18
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