Camlin, W. v. Office of Commissioner of Baseball

J-A05011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WENDY CAMLIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THE OFFICE OF THE COMMISSIONER : No. 796 WDA 2019
OF BASEBALL, D/B/A MAJOR LEAGUE :
BASEBALL; PITTSBURGH :
ASSOCIATES, LP, D/B/A THE :
PITTSBURGH PIRATES; SPORTS AND :
EXHIBITION AUTHORITY OF :
PITTSBURGH AND ALLEGHENY :
COUNTY :
v. :
:
:
PROMATS ATHLETICS, LLC :
Appeal from the Judgment Entered May 7, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 16-3545
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2020
Appellant, Wendy Camlin (“Ms. Camlin”), appeals from the May 7, 2019
judgment entered on the jury verdict in this negligence action, finding no
negligence on the part of Appellee, Promats Athletics, LLC (“Promats”). After
careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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This action was initiated on March 11, 2016, with Ms. Camlin’s filing of
a complaint in Allegheny County against the Office of the Commissioner of
Baseball, d/b/a Major League Baseball (“MLB”), the Sports and Exhibition
Authority of Pittsburgh and Allegheny County (“SEA”), and the Pittsburgh
Associates, LP, d/b/a the Pittsburgh Pirates (“Pirates”). The complaint alleged
that the Pirates, the SEA, and the MLB “acted negligently in their breach of
the duty to minimize the risk of injury to spectators or patrons at events held
at PNC Park.” Trial Court Opinion (“TCO”), 7/25/19, at 2.
The trial court summarized the facts that led to the filing of this action,
as well as the relevant procedural history in its Pa.R.A.P. 1925(a) opinion:
Ms. Camlin was employed as the Director of Patient Care for
Obstetrics and Newborn Services at UPMC in December [of] 2012,
a job that required a large time commitment and a large amount
of responsibility, as she was accountable for all nursing standards,
patient satisfaction, quality initiatives, and safety initiatives for
her respective division. Ms. Camlin eventually sought potential
employment at a hospital in Boston, Massachusetts[,] for the
purpose of advancing her career. In an effort to prevent Ms.
Camlin from leaving UPMC, Leslie Davis, the Chief Operating
Officer of the Health Services Division of UPMC and the President
of Magee Women’s Hospital, took accommodating steps to retain
her. One of the steps was to take Ms. Camlin to a Pirates baseball
game on April 20, 2015, to allow Ms. Camlin to address any
concerns she had, and to discuss new opportunities that would be
available for career advancement with UPMC.
Ms. Camlin attended the baseball game with Leslie Davis.
Approximately 17 days prior to Ms. Camlin and Leslie Davis[’s]
attending the game, the protective netting behind home plate had
been replaced by Promats…. The tickets obtained by [Ms.] Davis
provided them with designated seats located in the first row
directly behind home plate. While being escorted to their seats
by a Pirates[] employee during live play, Ms. Camlin had to turn
sideways to avoid coming into contact with the already seated
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spectators. In doing so, Ms. Camlin directed her focus to the
ground to avoid stepping on the feet of the other spectators. A
foul ball then struck the netting behind home plate, which caused
the netting to deflect and the baseball to strike Ms. Camlin in the
back of her head. As a result of this terrible accident, Ms. Camlin
was hospitalized at UPMC Presbyterian University Hospital under
the care of Dr. Camiolo Reddy in the concussion program. Dr.
Camiolo [Reddy] also supervised other aspects of Ms. Camlin’s
recovery, such as treatment with neurologists, neurosurgeons,
and neuropsychologists. Ms. Camlin experienced difficulty with
focus, concentration[,] and short-term memory loss[,] among
other symptoms that are alleged to [have] result[ed] from the
incident at PNC Park. Prior to her release from the care of Dr.
Camiolo Reddy, it was determined by UPMC that Ms. Camlin would
not be fit to return to her position as the Director of Patient Care
Services, Obstetrics and Newborn Services[,] because she would
not be able to meet the intensive time commitments and complex
demands of the position.
After the filing of the initial complaint, the Pirates and the
SEA joined Promats through a Writ to Join Additional
Defendants[,] on October 11, 2016. Significant to this appeal,
Count I alleged negligence on the part of Promats because it knew
or should have known that the design, manufacture, production,
marketing, installation, and/or maintenance of the replaced
netting could have caused a batted ball to deflect the netting
enough to come into contact with a spectator. On December 6,
2016, Promats initiated a cross claim against the Pirates and the
SEA alleging, inter alia, that the injuries and damages sustained
by Ms. Camlin were solely, proximately, and legally caused by the
conduct of the Pirates and the SEA and[,] alternatively, that
Promats is entitled to indemnity and/or contribution.
On August 24, 2018, all parties agreed to dismiss the [MLB,]
as there was no evidence that [the] MLB played a role in the
injuries sustained by Ms. Camlin. Additionally, the Pirates and the
SEA confidentially settled with Ms. Camlin for an undisclosed sum
of money[,] on or about November 9, 2018.
Trial was set to begin on November 14, 2018, and after two
days of jury selection, the court heard argument on motions in
limine. Promats filed a motion in limine to preclude all evidence
and argument pertaining to net tension. The court denied this
motion on the basis that the jury must be made aware of evidence
pertaining to the tensioning of the net despite the fact that there
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was no expert testimony on the matter. The court agreed with
[Ms. Camlin’s] counsel that net installation and tensioning were
vital components of the case. Furthermore, a motion in limine
was filed on behalf of Ms. Camlin, to preclude Promats from
offering evidence pertaining to which party bore the duty of
properly tensioning the net. The court denied the motion, finding
that it was up to the jury to determine if any of the parties’ conduct
was negligent[,] related to the net installation and tensioning. The
court reiterated and agreed with [Ms. Camlin] that net tension is
a significant issue in the case by stating, “I know that you say that
it is a tension case. Frankly, I am inclined to agree with that….”
Ms. Camlin [also] filed a motion in limine to preclude
testimony from Dr. Ruben J. Echemendia[,] pertaining to Ms.
Camlin’s disability status. The court granted the motion,
explaining its reasoning that Dr. Echemendia’s report never
expressly says “disabled[.”] The court contended[:] “The magic
words are ‘disabled[,’] but I don’t want him to use that, that she
is disabled….” Further, the court understood that an inference of
Ms. Camlin’s compensation could be derived from any testimony
of “disability[.”] The court ultimately determined that it would be
inappropriate and prejudicial to allow Promats to represent to the
jury that Ms. Camlin was “disabled” or that she received past
disability benefits. However, the issue of whether or not Ms.
Camlin could return to work was still open to explore through
evidence and testimony.
Both parties filed motions regarding the disclosure of the
settlement between Ms. Camlin and the Pirates and the SEA.
Promats filed an omnibus motion in limine, which included a
motion to inform the jury of Ms. Camlin’s settlement with the
Pirates and the SEA prior to trial. [Ms. Camlin] filed a motion in
limine to preclude evidence of the settlement between [herself]
and the Pirates and the SEA to prevent possibly prejudicial
evidence from reaching the jury. During argument, Promat[s’]
counsel conceded that the current law precludes the disclosure of
the settlement[,] but he had to file the motion to preserve the
right to take the issue up on appeal. The court denied Promats’
motion and granted Ms. Camlin’s motion to exclude evidence of
the settlement between the Pirates and [the] SEA and Ms.
Camlin[,] on November 15, 2018. The rulings on the motions in
limine focused the issue before the jury, which was to determine,
under a comparative negligence analysis, which party was liable
for Ms. Camlin’s injuries.
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On November 16, 2018, the trial commenced against
Promats, the Pirates, and the SEA on the remaining negligence
claims. After 10 days of trial over the Thanksgiving break, the
jury rendered a verdict on December 4, 2018, finding that the
already settled defendants, the Pirates and the SEA, were each
47.5% liable, while Ms. Camlin was 5% liable for her own injuries.
Significant to this appeal, the jury found that Promats, the non-
settling defendant, was not liable. The jury awarded monetary
damages to Ms. Camlin of $54,000.00 for past wage loss and
reduced future earning capacity, $200,000.00 for past and
present pain and suffering, embarrassment and humiliation, and
loss of enjoyment of life, and $200,000.00 for future pain and
suffering, embarrassment and humiliation, and loss of enjoyment
of life of Ms. Camlin. The damages awarded by the jury amounted
to a total of $454,000.00.
On December 14, 2018, a motion for post-trial relief was
filed on behalf of Ms. Camlin. [Her] counsel asked the court to
order a new trial on liability and damages or in the alternative to
enter judgment [non obstante veredicto (“n.o.v.”)] on the issues
of Promats’ negligence and causation and order a new trial on the
apportionment of liability and damages. The motion for post-trial
relief alleged three errors made during trial. First, [Ms. Camlin]
alleged the court failed to appropriately charge the jury on the
legal standard for Promats’ duty of care [owed] to [her]. Second,
[Ms. Camlin] alleged that the weight of the evidence was clearly
against the jury’s finding of 47.5% liability allocated toward the
SEA. Lastly, [Ms. Camlin] alleged that the court permitted opinion
evidence to permeate the record from Dr. Eric Fishman, who never
testified before the jury and whose opinion that Ms. Camlin could
work and was a malingerer was not relied upon by the other
expert witnesses. Defense counsel objected to the motion for
post-trial relief on December 20, 2018, alleging that [Ms.
Camlin’s] counsel failed to properly order the entire transcript.
After conferring with both parties, the court ordered[,] on
January 17, 2019[,] that a post-trial conciliation would be held on
January 29, 2019. At that conciliation, the parties agreed to have
the remainder of the voluminous transcript completed and to
consider whether or not to arbitrate. On February 1, 2019, the
court ordered that the post-trial conciliation be continued to allow
[for] further settlement discussions and to outline a briefing
schedule. In the event that the parties could not agree to resolve
the dispute, the parties were to contact the court after all findings
of fact and conclusions of law were filed to schedule argument.
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The court, upon request of the court reporter, granted an
extension of 21 days to complete the voluminous transcript on
February 19, 2019…. Ms. Camlin filed [her] proposed findings of
fact on April 4, 2019[,] and … Promats filed its response on May
6, 2019. Promats subsequently filed a praecipe for entry of
judgment on [the] verdict[,] pursuant to Pa.R.[C.]P.
227.4(a)(b)[,] on May 7, 2019, which precluded the court from
ruling on Ms. Camlin’s post-trial motion.
On May 22, 2019, Ms. Camlin filed a notice [of] appeal … in
reference to the entry of judgment entered on May 7, 2019,
pursuant to Pa.R.A.P.[] 341. This court issued an order on June
3, 2019[,] allowing the issues set forth in Ms. Camlin’s motion for
post-trial relief to function as a concise statement of errors
complained [of] on appeal[,] in accordance with [Pa.R.A.P.]
1925(b), or alternatively, to supplement any further errors within
21 days. Ms. Camlin supplemented her statement of errors by
timely filing [her Rule 1925(b) statement] on June 17, 2019.
TCO at 2-7 (unnecessary capitalization and citations to record omitted).
Ms. Camlin now presents the following issues for our review:
I. Did the [t]rial [c]ourt err in refusing to charge the jury on
the higher, distinct, and independent duties of care Promats
owed to [Ms. Camlin], duties which the Supreme Court of
Pennsylvania has adopted through the Restatement
(Second) of Torts [(]§§ 299, 299A, 385, and 388[)] and
case law throughout the Commonwealth?
II. Did the [t]rial [c]ourt err in denying [Ms. Camlin] a directed
verdict after Promats[’] representatives testified that its
safety netting was designed to protect patrons behind home
plate and that Promats’ job was to ensure patrons’ safety,
but Promats never alerted the [Pirates] or patrons of the
potential danger that a patron can be struck by a foul ball
while behind its alleged safety netting?
III. Can the jury’s decision to absolve Promats of responsibility
be reconciled with the jury’s decision that the Pittsburgh
Pirates and the [SEA] were responsible for [Ms. Camlin’s]
injuries instead of Promats[,] when Promats owed [Ms.
Camlin] an even higher, distinct, and independent duty,
separate and apart from the [Pittsburgh] Pirates’ duties to
[her]?
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IV. Did the [t]rial [c]ourt err in permitting Promats’ counsel to
utilize the hearsay report and findings of Dr. Eric Fishman
as substantive evidence to cross-examine [Ms. Camlin’s]
experts notwithstanding the fact that Dr. Fishman did not
testify before the jury, was not subject to cross-
examination, and whose opinions were not relied upon by
other experts who presented expert testimony at trial?
V. Was the jury’s decision to allocate 47.5% of liability to the
SEA against the weight of the evidence when there was no
evidence proffered from either side that discussed [the]
SEA’s ownership or its possession of PNC Park on the date
[Ms. Camlin] sustained her injuries?
Ms. Camlin’s Brief at 6.
I. Refusal of Ms. Camlin’s Proposed Points for Charge
In her first claim, Ms. Camlin avers that the trial court erred in its
instruction to the jury regarding the negligence law and duty of care to be
applied to Promats. She bases her argument on her assertion that Promats
held itself out as an “expert in safety.” Id. at 24, 28. Ms. Camlin insists that
because of its “expert” status, the trial court should have instructed the jury
that Promats owed her a heightened duty of care, independent of the duty
owed by the other defendants. Id. at 28. She further contends that Promats
“completely neglected its duties under Pennsylvania law to warn the Pirates
and spectators[,] such as [herself,] that the netting it had installed created a
false illusion of safety and a hidden danger to its users.” Id. Ms. Camlin
argues that she was “entitled to have the jury instructed on these well-
established facets of the law[,]” and that the trial court erred in refusing to
accept her proposed charges regarding Promats’ negligence. Id.
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Before we address the merits of this claim, we note our standard of
review regarding a challenge to jury instructions:
Our standard of review regarding jury instructions is limited to
determining whether the trial court committed a clear abuse of
discretion or error of law which controlled the outcome of the case.
Error in a charge occurs when the charge as a whole is inadequate
or not clear or has a tendency to mislead or confuse rather than
clarify a material issue. Conversely, a jury instruction will be
upheld if it accurately reflects the law and is sufficient to guide the
jury in its deliberations.
The proper test is not whether certain portions or isolated
excerpts taken out of context appear erroneous. We look to
the charge in its entirety, against the background of the
evidence in the particular case, to determine whether or not
error was committed and whether that error was prejudicial
to the complaining party.
In other words, there is no right to have any particular form of
instruction given; it is enough that the charge clearly and
accurately explains the relevant law.
Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015) (internal citations
and quotation marks omitted).
Here, the trial court provided the jury with the following standard jury
instructions relevant to this appeal, based upon the Pennsylvania Suggested
Standard Civil Jury Instructions:
13.10 Negligence
In this case, you must decide whether the defendants, the …
Pirates and the [SEA,] and the additional defendant[], Promats,
were negligent. I will now explain what negligence is. A person
must act in a reasonably careful manner to avoid injuring others.
The care required varies according to the circumstances and the
degree of danger at a particular time. You must decide how a
reasonably careful person would act under the circumstances
established by the evidence in this case. A person who does
something a reasonably careful person would not do under the
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circumstances is negligent. A person can also be negligent by
failing to act. A person who fails to do something a reasonably
careful person would do under the circumstances is negligent.
…
13.70 Negligent Undertaking to Render Services to Protect
Others
A person who provides services to protect people or their property
must act in a reasonably careful manner. If a party fails to act in
a reasonably careful manner, it is negligent. Wendy Camlin, in
this case must prove that the … Pirates, the [SEA], and/or Promats
was negligent in providing services to protect Wendy Camlin; and
either[:]
1. The … Pirates[’], the [SEA’s], and/or Promats[’] negligent
conduct increased the risk of harm suffered by Wendy Camlin;
or
2. Wendy Camlin suffered injury because she relied on the …
Pirates, the [SEA] and/or Promats….
TCO at 14 (citing N.T. Trial, 12/3/18, at 1935-36, 1929-40).
The trial court indicated that the foregoing instructions were based on
its concern with “providing the jury with the most logical, clear instruction[,]
so as to not confuse or mislead them on the applicable rules of law.” Id. Ms.
Camlin accuses the trial court, however, of ignoring the premise that Promats
owed a duty of care to her, independent of the duties that were owed by the
Pirates and the SEA. Ms. Camlin’s Brief at 17. The record clearly belies this
assertion. The standard jury instructions for 13.10 and 13.70, as well as the
trial judge’s detailed explanation to the jury of the individual claims against
each of the defendants and the concept of comparative negligence, illustrate
that the trial court made it clear that Promats could be found liable to Ms.
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Camlin, independent of the Pirates and the SEA. See N.T. Trial, 12/3/18, at
1935-40.
Ms. Camlin further argues that the trial court should have charged the
jury on a higher standard of care for Promats. Ms. Camlin’s argument is based
on her theory that Promats held itself out as an “expert” in ballpark safety
products. Ms. Camlin’s Brief at 24. She relies on the testimony of Sean
Whittaker, one of Promats’ installers of the netting; Wayne Oliver, the
President and CEO of Promats; and J.J. McGraw, the manager of baseball
operations for the Pirates, in support of her claim. Significantly, however, the
trial court determined that “Promats was under no ‘heightened’ duty.” TCO
at 10. The court maintained, rather, that “[t]he duty … Promats owed to Ms.
Camlin was properly charged in the context of a comparative negligence
analysis with all the other parties’ conduct.” Id. Ms. Camlin’s reliance on a
higher duty argument was deemed by the trial court to be “just another
attempt by [her] to direct a verdict against the only non-settling defendant[,]
Promats.” Id.
In support of its finding that no heightened duty of care was owed by
Promats, the trial court concluded that Sean Whittaker’s testimony did not
reveal any alleged expertise on behalf of Promats. Id. at 15. “[Mr. Whittaker]
testified that he installed the net, tensioned it to the degree he has seen at
other ballparks, and that he received the appropriate approval for the job[]
and[,] more importantly[,] the tension of the net[,] from J.J. McGraw.” Id.
Additionally, Mr. McGraw’s testimony revealed that “he was involved in
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procuring the netting from Promats,” that the netting purchased by the Pirates
from Promats was represented by Promats as “lighter, safer, and more fan[-
]friendly” than other netting, and that “the net was supposed to be tensioned
by Promats.” Id. at 16. The trial court determined that “[a] thorough reading
of both of those witnesses … reveal[ed] that neither [witness] stated that
Promats was an expert in net tensioning,” as suggested by Ms. Camlin. Id.
Regarding the testimony of Mr. Oliver, the trial court observed:
Mr. Oliver does testify that Promats has expertise in selling
baseball related netting. However, the rest of his testimony does
not reveal any expertise related to net tension, nor his own
specific experience with installing protective netting. In fact, his
testimony again shows Promats’ belief that[,] while it was [its]
responsibility to tension the net, Promats tensioned the net to the
Pirates[’] specifications and needs per the contract. Nowhere in
his testimony does he state that Promats is, or held itself out to
be, an expert in net tensioning. [Ms. Camlin’s counsel] did argue
this alleged expertise in [his] closing, but it was not charged, and
the jury likely rejected the argument. To charge a higher standard
of care would have been entirely inappropriate[,] because
Promats simply was not an expert in net tensioning. This [c]ourt’s
charge of 13.10 and 13.70 explained the principle of negligence
without misleading or confusing the jury as to Promats[’] standard
of care.
Id. at 15-16 (citations to record omitted; emphasis added). In fact, the trial
court added that Ms. Camlin’s own proposed charges included a request that
13.70 be given to the jury. Id. at 16. It was Promats that objected to the
inclusion of 13.70 and argued that it would support Ms. Camlin’s position that
the net was designed to protect her. Despite Promats’ objection, the trial
court granted Ms. Camlin’s request to include 13.70 in the jury charge,
“finding it to be an appropriate, clear, and concise charge on Promats’
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independent duty after rendering services to protect Ms. Camlin[,] while not
directing a verdict….” Id. at 17.
The trial court rejected the following additional charges submitted by
Ms. Camlin’s counsel:
“Creating” a Condition upon the [L]and on [B]ehalf of the
[P]ossessor
One who on behalf of the possessor in a facility or land erects a
structure or creates any other condition thereon is subject to
liability to others within the facility or land for bodily harm caused
to them by the dangerous character of the structure or condition
after his work has been accepted by the possessor.
Restatement (Second) of Torts, § 385; Krisovich v. John Booth,
Inc., 121 A.2d 890 (Pa. Super. [] 1956).
Foreseeable Dangerous Condition “Created by Contractor”
Even though the owner of the premises has accepted the work,
the defendant contractor properly charged with negligence for
failing to anticipate and guard against a foreseeable dangerous
condition created by the contractor.
Restatement (Second) of Torts, § 385; Prost v. Caldwell Store,
Inc., 187 A.2d 273 (Pa. Super. 1963); Krisovich v. John Booth,
Inc., 121 A.2d 890 (Pa. Super. [] 1956); Bastl v. Papile, 15 A.2d
476 (Pa. Super. [] 1940).
Unlikely Danger
[Ms. Camlin] must show, and has shown, that the danger was
one unlikely to be discovered by the owner of those who come
upon the land with the owner’s consent. Thus, liability is imposed
upon a contractor where the dangerous condition is not open and
obvious.
Restatement (Second) of Torts, § 385; Gresik v. Pa. Partners,
L.P., 33 A.2d 594, 597 (Pa. 2011); Gilbert v. Consolidated Rail
Corp., 623 A.2d 873 (Pa. [Cmwlth.] 1993).
Want of Competence
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[Ms. Camlin] must show, and has shown in this case, that
an act may be negligent if it is done without the competence which
[a] reasonable man or company in its position would recognize as
necessary to prevent it from creating an unreasonable risk of
harm[.]
[Ms. Camlin] must show, and has shown, that Promats…, who
marketed itself as a seller of safety products with expertise in the
area of safety, and who promotes the sale of products that are
designed for safety, is to be held to a higher standard of care than
the other defendants in this proceeding because of Promats’
claims of expertise.
Restatement (Second) of Torts, § 299; § 299(e)[.]
Undertaking in profession or trade
[Ms. Camlin] must show, and has shown in this case, [that
Promats] has greater skill knowledge and knowledge in the trade
of net installation and maintenance and has undertaken to render
these services in the practice of its profession and trade and as an
expert in net installation and maintenance. As such, Promats … is
required to exercise, and [sic] skill and knowledge normally
possessed by members of that profession or trade in good
standing in similar communities. Thus, liability is imposed upon
any person or company, such as [Promats], who has failed to
exercise this skill and knowledge.
Restatement (Second) of Torts, § 299A[.]
Id. at 11-12 (emphasis in original).
Three out of five of these proposed charges include the phrase, “[Ms.
Camlin] must show, and has shown,” which prevented the trial court, ab initio,
from providing these charges to the jury, as doing so “would have in essence
granted a directed verdict on liability against Promats, the only non-settling
defendant.” Id. at 15. While the other two charges do not contain such
language, their titles indirectly suggest a directed verdict. Id. “Both charges
could equate … Promats’ installation of the net with ‘creating’ a hazard, thus
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likely directing a verdict on Promats’ liability. This issue was more clearly
explained by the charges actually given.” Id. The trial court found Ms.
Camlin’s proposed charges to be either misleading or confusing. Id.
By providing the standard jury instructions, 13.10 Negligence and 13.70
Negligent Undertaking to Render Services to Protect Others, and refusing to
accept the additional charges proposed by Ms. Camlin, the trial court stated
that it “provided the jury with the appropriate standards of ‘degree of care’
and ‘duty’ in accurate and plain language[,] while specifically preventing the
jury from hearing inapplicable law as drafted by [Ms. Camlin].” Id. at 13.
The trial court further observed that the alleged “higher” duty Ms. Camlin
claims Promats owed her “apparently comes from [her] ephemeral expertise
claim related to net tension, when read in conjunction with the Restatement
(Second) of Torts §[§] 299, 299A, 385, and 399.” Id.1
Section 385 states:
One who on behalf of the possessor of land erects a
structure or creates any other condition thereon is subject
to liability to others upon or outside of the land for physical
____________________________________________
1 Section 299 provides: “An act may be negligent if it is done without the
competence which a reasonable man in the position of the actor would
recognize as necessary to prevent it from creating an unreasonable risk of
harm to another.” Section 299A dictates: “Unless he represents that he has
greater or less skill or knowledge, one who undertakes to render services in
the practice of a profession or trade is required to exercise the skill and
knowledge normally possessed by members of that profession or trade in good
standing in similar communities.” Pursuant to Section 399, “[a] seller of a
chattel, manufactured by a third person, who sells it knowing that it is, or is
likely to be, dangerous is subject to liability as stated in §§ 388-390.”
Restatement (Second) of Torts §§ 299, 299A, 399 (1965).
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harm caused to them by the dangerous character of the
structure or condition after his work has been accepted by
the possessor, under the same rules as those determining
the liability of one who as manufacturer or independent
contractor makes a chattel for the use of others.
Restatement (Second) of Torts § 385 (1965)[.]
The trial court discerned that:
Nowhere does Section 385 state that a “higher” duty is
imposed on one who erects a structure on behalf of the possessor
of land. In fact, this [c]ourt[’]s reading of all the sections of the
Restatement relied on by [Ms. Camlin] reveals that nowhere does
it state that a “higher” duty should be imposed on Promats.
Additionally, [Ms. Camlin] failed to provide any authority which
describes the duty in Section 385 as a higher duty. This [c]ourt
did agree with [Ms. Camlin’s] counsel, and so charged, that the
jury may find an independent duty and liability on Promats.
However, the charges drafted by [Ms. Camlin] would likely direct
a verdict against Promats and confuse or mislead the jury.
Ultimately, all the proposed charges were alternatively covered by
the Standard Jury Instructions 13.10 and 13.70….
Id. at 13-14. We have carefully reviewed the standard charges provided to
the jury and conclude that the trial court accurately explained the law to guide
the jury in its deliberations.
Based on the foregoing, we deem Ms. Camlin’s argument that the jury
should have been instructed regarding a heightened duty of care to be
unavailing. A party has no right to have a particular form of instruction, nor
is the trial court obligated to temper the contents of the jury instructions to
respond to counsel’s arguments. Krepps, 112 A.3d at 1257. It is sufficient
if the trial court’s charge clearly and accurately explains the relevant law and
properly conveys the requested point. Id. Discerning no legal error or abuse
of discretion, we uphold the trial court’s jury instruction.
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II. Refusal to Issue Directed Verdict against Promats
Ms. Camlin claims that the trial court erred in denying her request for a
directed verdict against Promats. Ms. Camlin’s Brief at 38-39. When
reviewing an order denying judgment n.o.v.,
[w]e must consider all of the evidence admitted to decide if
there was sufficient competent evidence to sustain the
verdict. In so doing, we must also view this evidence in the
light most favorable to the verdict winner, giving the
victorious party the benefit of every reasonable inference
arising from the evidence and rejecting all unfavorable
testimony and inference. Concerning any questions of law,
our scope of review is plenary. Concerning questions of
credibility and weight accorded the evidence at trial, we will
not substitute our judgment for that of the finder of fact. If
any basis exists upon which the jury could have properly
made its award, then we must affirm the trial court’s denial
of the motion for judgment n.o.v. A judgment n.o.v. should
be entered only in a clear case.
American Future Systems, Inc. v. BBB, 872 A.2d 1202, 1215
(Pa. Super. 2005) (citation omitted). Further, a trial court can
only enter judgment n.o.v. upon two bases: “(1) where the
movant is entitled to judgment as a matter of law; and/or[] (2)
the evidence was such that no two reasonable minds could
disagree that the verdict should have been rendered for the
movant.” Id. We will reverse a trial court’s denial of judgment
n.o.v. only where the trial court abused its discretion or committed
an error of law that controlled the outcome of the case. See Ty-
Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa.
Super. 2002).
Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229,
1236 (Pa. Super. 2012) (internal brackets omitted).
Instantly, Ms. Camlin argues that the testimony of Promats’ own
witnesses, “regarding their knowledge of the hazard, their failure to warn [Ms.
Camlin] or the Pirates[,] and [their] acknowledgement that it would have been
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prudent to warn the Pirates, supports liability under the proper standard of
care under Pennsylvania law.” Ms. Camlin’s Brief at 39. In support of her
claim, Ms. Camlin avers that Promats admitted the netting was designed to
protect people seated behind home plate; that part of the installer’s job duties
included ensuring spectator safety; that it knew prior to Ms. Camlin’s injury
that a patron taking his or her seat or leaving their seat during play would be
in the zone of deflection of the net and subject to injury; and that a fan walking
to or from their seat located in the front row may not appreciate the danger
to which they would be exposed. Id. at 39-40. Ms. Camlin emphasizes that
Promats’ CEO, Mr. Oliver, “agreed it would have been prudent to advise the
Pirates of this danger.” Id. at 41. “Notwithstanding, Promats never notified
the Pirates of this hazard, never conferred with the Pirates as to whether the
Pirates appreciated the hazard, and never took steps to warn those fans who
would be sitting in the hazardous area.” Id. Ms. Camlin concludes that the
foregoing concession made by Mr. Oliver establishes Promats’ liability
pursuant to the Restatement (Second) of Torts, § 385 and, therefore, the trial
court improperly denied her request for judgment n.o.v. Id. at 41-42.
In support of its denial of Ms. Camlin’s request for judgment n.o.v., the
trial court explained:
[T]he [c]ourt found that there were adequate facts to justify the
issues going to the jury. Promats owed no heightened duty to Ms.
Camlin[,] and Promats’ conduct was to be analyzed under a
comparative negligence theory, outlined by the [c]ourt’s charge
of 13.10 and 13.70[,] and further explained to the jury on the
verdict slip. In denying the motion for a directed verdict, this
[c]ourt found that Mr. Oliver was not admitting Promats’ liability
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by simply saying that it would have been prudent to tell the Pirates
of the potential danger behind home plate. The [c]ourt found this
should be another fact that the jury might consider in determining
whether Promats was negligent or not.
Clearly, the record is full of facts the jury could have
considered in determining the parties’ comparative negligence.
The jury could have thought that the Pirates had netting for years
before this accident, had regularly taken down and tensioned the
prior 2013 net, and that they knew or should have known that
there was a potential danger behind home plate regardless of
what Mr. Oliver said to anyone about anything. The jury could
have been persuaded that the Pirates knew that the net deflected,
which is further supported by the Pirates own policy not to seat
patrons during live play and [to] warn every patron of the dangers
of sitting in the first row of the Lexus Club. Certainly, the jury
could have relied on Mr. Oliver’s testimony as some admission of
some liability, which was argued as such by [Ms. Camlin’s] counsel
in [his] closing argument. But to remove from the jury’s
consideration the issue of Promats[’] negligence based on that one
statement would have been improper. It is clear from the jury’s
verdict that they considered all of the evidence in the case,
including Mr. Oliver’s statement, and still found that Promats was
not negligent and did not violate any duty owed to Ms. Camlin.
TCO at 19. After careful review, we discern that a reasonable basis exists in
the record to support the jury’s verdict.
Moreover, Ms. Camlin’s assertion of liability on the part of Promats under
Section 385 ignores comment (c), which states:
A manufacturer of a chattel who puts it upon the market knowing
it to be dangerous and having no reason to expect that those who
use it will realize its actual condition is liable for physical harm
caused by its use (see § 394). As the liability of a servant or an
independent contractor who erects a structure upon land or
otherwise changes its physical condition is determined by the
same rules as those which determine the liability of a
manufacturer of a chattel, it follows that such a servant or
contractor who turns over the land with knowledge that his work
has made it dangerous in a manner unlikely to be discovered by
the possessor is subject to liability both to the possessor, and to
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those who come upon the land with the consent of the possessor
or who are likely to be in its vicinity.
Restatement (Second) of Torts § 385 Comment (c) (emphasis added).
Comment (c) was central to this Court’s analysis in Gresik v. PA
Partners, L.P., 989 A.2d 344 (Pa. Super. 2009), which involved a negligence
action against the owner of a steel mill where a steelworker was injured. In
determining whether the defendant was liable for the plaintiff’s injuries under
Section 385, the Gresik Court analyzed the plain language of Comment (c):
On two occasions, the comment states that the danger must be of
such a nature that it is unlikely to be discovered. Liability under
Section 385 is determined by the same rules defining the liability
of a manufacturer of chattel. The first sentence of Comment (c)
states that a manufacturer of chattel is liable when it supplies a
product “knowing it to be dangerous and having no reason to
expect that those who use it will realize its actual condition.”
Restatement (Second) of Torts § 385 Comment (c) (emphasis
added). See also Restatement (Second) of Torts § 388, Chattel
Known to Be Dangerous for Intended Use (stating that a supplier
of chattel that is known to be dangerous may only be held liable
if the supplier “has no reason to believe that those for whose use
the chattel is supplied will realize its dangerous condition”). The
comment concludes that it follows, therefore, “that a servant or
contractor who turns over the land with knowledge that his work
has made it dangerous in a manner unlikely to be discovered by
the possessor is subject to liability.” Id. Based on the foregoing,
we conclude that as a precondition for establishing liability under
Section 385, a plaintiff must show that the danger was one
unlikely to be discovered by the possessor or those who come
upon the land with the possessor’s consent.
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Id. at 350-51 (unnecessary capitalization omitted; emphasis in original).2 In
Gresik, we concluded that the trial court did not err in granting the
defendant’s preliminary objections to the plaintiff’s claims based on Section
385, because the case involved a danger that was well-known to all relevant
parties. Id. at 351.
Promats points out that the reasoning in Gresik was applied by this
Court in an analogous situation in Longwell v. Giordano, 57 A.3d 163 (Pa.
Super. 2012). Promats’ Brief at 25. In Longwell, a tenant sued his landlords,
Joseph Giordano, Jr. and Beth Lynn Giordano (“the Giordanos”), and a paving
contractor, C.J. Long Paving Company (“C.J. Long”), for negligence, after
falling off the edge of the driveway in his apartment complex when his shoe
caught on the edge of the asphalt. Six months prior to the incident, the lot
had been repaved by C.J. Long. The tenant alleged his injury was caused by
a drop-off that was the result of the repaving work. Applying the authority of
Gresik in Longwell, we concluded that “it cannot be said that C.J. Long made
the area of the drop-off dangerous in a way that the Giordanos were unlikely
to discover.” Longwell, 57 A.3d at 171.3
____________________________________________
2 Our Supreme Court affirmed this decision on other grounds, and never
reached the question of how to interpret the relevant language of Section 385
Comment (c). Gresik v. PA Partners, L.P., 33 A.3d 594, 600 (Pa. 2011).
3 In Longwell, Mr. Giordano was apparently aware that there was a drop-off,
both before and after C.J. Long was hired to add an additional coating of
blacktop. Id. Accordingly the Longwell court upheld the trial court’s finding
that C.J. Long owed no duty to the Longwells.
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Similarly, Promats argues that focusing, here, on the likelihood that the
Pirates knew of the potential danger to patrons proves fatal to Ms. Camlin’s
claim. Promats’ Brief at 26. Promats asserts:
[T]he evidence was that the Pirates were very familiar with
stadium netting and its tensioning. Brian Stroh, senior vice
president of business affairs and general counsel for the Pirates,
verified that the Pirates knew the net could deflect toward the
patrons.[4] Mr. Stroh confirmed that from the time PNC Park
opened in 2001 until 2011, the Pirates’ maintenance crew would
remove the home plate netting each year and reinstall the start-
up process for each season.
Mr. McGraw testified that the Pirates had previously hung
nets and set net tensions. The nets had been taken down by
Pirates’ maintenance crews and re-tensioned on prior occasions.
When rehanging the netting, the Pirates’ maintenance crew made
the decision as to how much tension would be in the netting.
The Pirates’ maintenance personnel also decided where the
netting would be tensioned and where it would be tied off on the
cabling. Promats had no involvement in the tensioning of the PNC
Park netting during its first thirteen years of existence, as that
was performed by Pirates’ maintenance personnel. Mr. Stroh had
no information that the netting was previously hung in any
manner differently than that which was in place at the time of the
incident. The Pirates even trained its ushers to warn the first row
patrons at PNC Park of the risk of a deflecting net and baseball….
Id. at 26-28 (citations to record omitted).
When questioned about Promats’ installation of the net at the beginning
of the 2015 season, Mr. Stroh confirmed that the Pirates’ grounds crew
“visually inspected that netting from the moment [it was installed] through all
____________________________________________
4 Mr. Stroh confirmed that the Pirates knew “well before” the day of Ms.
Camlin’s incident that the netting would deflect to some degree when stopping
a foul ball; that the Pirates chose where the seats in the stadium would be;
and that the Pirates chose the placement of the netting. N.T. Trial, 11/29/18,
at 1525-26.
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of the games up until the time of [Ms. Camlin’s] accident[,]” and that “they
never raised any issue with the installation, tension, or any other aspects of
the net[.]” N.T. Trial, 11/29/18, at 1529-30. Moreover, Mr. Stroh admitted
that it was the Pirates’ architects, not Promats, that designed the cabling and
net mooring system, as well as the backstop system, which were in place at
the time of the April 20, 2015 incident, and that Promats “had nothing to do
with designing or installing that distance between the seats and the netting
that has existed for 15 years before this accident[.]” Id. at 1530-31.
Additionally, Promats notes that Mr. Whittaker testified that it was
neither his nor Promats’ decision as to the degree of tension to be applied to
the netting. Promats’ Brief at 31 (citing N.T. Trial, 11/16/18, at 176.) He
explained that Promats’ installers would tension the netting similar to what is
seen in other ballparks and would then “seek their customer[’s] approval and
ask them if they want it tightened or loosened.” N.T. Trial, 11/16/18, at 179.
Moreover, the contract terms between Promats and the Pirates provided that
the Pirates were responsible for project “specification compliance.” Id. at 221.
Based on our review of the record, Ms. Camlin is not entitled to judgment as
a matter of law, pursuant to Section 385, as there is sufficient evidence in the
record to at least create a jury question regarding whether the Pirates knew
of the hidden danger to patrons. We deem no error of law or abuse of
discretion by the trial court and, accordingly, we affirm its denial of the motion
for a directed verdict.
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III. Reconciling the Jury’s Absolution of Promats with its
Finding of Liability on the Part of the Pirates and the SEA
Ms. Camlin asserts that the trial court’s failure to properly charge the
jury led to an irreconcilable result with the jury imposing liability on the Pirates
and the SEA, but not Promats. Ms. Camlin’s Brief at 43-44. Again, Ms.
Camlin’s claim is premised on her assumption that Promats should be held to
a higher standard of care than the other defendants. Having determined that
the trial court properly found Promats did not owe a heightened duty of care,
we deem this claim to be meritless.
As determined by the trial court, this is a comparative negligence case.
See TCO at 8. The trial court surmised that Ms. Camlin’s “intent and sole
strategy of going to trial was to single out the only non-settling party,
Promats, as an expert in net safety and having a ‘higher’ duty to [her].” Id.
It was Ms. Camlin’s choice to confidentially settle with the Pirates and the SEA
prior to trial, which resulted in the settling defendants remaining on the verdict
slip for the jury to consider. Id. Her decision to settle with two defendants
instead of all or none of the defendants acts as a “double-edged sword,” e.g.:
The jury was unaware of the settlement and was tasked with
determining, among all the parties, who may have been at fault
for Ms. Camlin’s injuries. The jury ultimately found the Pirates
and [the] SEA liable and awarded money damages against them
and not Promats. [Ms. Camlin] now asks this [c]ourt to overturn
the jury’s decision because of displeasure with the amount
awarded, and more significantly, who is liable.
Id. The jury was free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. See Commonwealth v. Houser,
18 A.3d 1128, 1135-36 (Pa. Super. 2011). We will not overturn the jury’s
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verdict unless it is so contrary to the evidence as to shock one’s sense of
justice. See Tong-Summerford v. Abington Memorial Hosp., 190 A.3d
631, 659 (Pa. Super. 2018).
Here, we deem the jury’s verdict to be consistent with the evidence, as
further illustrated by the following statement of the trial court:
Throughout the 10 days of trial, the jury heard conflicting
testimony from both parties on how this terrible accident could
have happened. [Ms. Camlin] consistently argued that all their
testimony and evidence pointed to Promats as being the only
negligent party. [Her] counsel even argued in [his] closing that it
was Promats that was negligent, and not the Pirates. However, a
review of the entire record supports the jury’s verdict and the
[c]ourt’s charge.
First, inter alia, the jury could have determined that the
Pirates and the SEA knew or should have known of the net’s
deflection and possible intrusion into the first row of patrons. Also,
the jury could have considered that there was no expert evidence
at all presented that the net was tensioned improperly or installed
negligently. The record further reveals that [Ms. Camlin’s] own
expert, Stanley Meredith, testified that while it was his belief that
it was Promats[’] duty to tension the net, he admitted that he had
not performed any net tension analysis to determine if the net was
tensioned incorrectly. Yet another explanation is that the jury
could have believed that Ms. Camlin was just too close to the net
and that no amount of tension could have prevented this terrible
accident if her head was 3½ inches away. [Ms. Camlin’s] own
accident reconstructionist, Paul Montalbano, testified that based
on his analysis, Ms. Camlin’s head was 3½ to 6 inches from the
net. He admitted that nowhere in his report did he say that
Promats is responsible for the accident. More importantly, Mr.
Montalbano specifically stated that the jury was responsible for
determining fault.
The jury could have considered the testimony of a Pirates’
employee of almost 40 years, who testified that the Pirates had a
policy predating the accident where the employees were to warn
people not to take their seats in the first row during live play
because of the potential dangers of the net deflecting.
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Additionally, the jury might have considered the testimony that
the Pirates and the SEA chose the placement of the seats and
cabling design, which Promats was not involved in, nor had the
ability to change. Lastly, the jury could have considered that the
price quote, which ultimately stood as the contract for the
installation of the net between Promats and the Pirates,
specifically provided that Promats would install the net, and that
the Pirates would approve it. In sum, many of the relevant facts,
inter alia, support the jury’s verdict.
TCO at 8-10 (citations to record omitted). We discern no abuse of discretion
or error of law in the trial court’s denial of Ms. Camlin’s request for a new trial.
IV. Allowance of Dr. Eric Fishman’s Opinion as Evidence
Ms. Camlin argues that the trial court erred in allowing the inclusion of
Dr. Eric Fishman’s opinions5 at trial and that she is, accordingly, entitled to a
new trial. Before addressing the merits of this claim, we note:
“The admission or exclusion of evidence is within the sound
discretion of the trial court. In reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the trial
court upon a showing that it abused its discretion or committed
an error of law.” Schmidt v. Boardman Co., 958 A.2d 498, 516
(Pa. Super. 2008) (citation omitted).
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, to constitute
reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa. Super. 2007).
____________________________________________
5 “Dr. Fishman had been hired by CIGNA to perform an [independent medical
evaluation (IME)] of Ms. Camlin in a federal lawsuit for the payment of
disability benefits. Dr. Fishman had concluded that Ms. Camlin was a
malingerer and could return to work. Dr. Fishman’s opinion was discredited
in the federal lawsuit[.]” Id. at 21 n.1.
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Nazarak v. Waite, 216 A.3d 1093, 1100 (Pa. Super. 2019). “An evidentiary
ruling which did not affect the verdict will not provide a basis for disturbing
the jury’s judgment.” Hart v. W.H. Stewart, Inc., 564 A.2d 1250, 1252 (Pa.
1989).
Instantly, Ms. Camlin asserts that the “illicit efforts” of Promats’ counsel
to introduce opinions from Dr. Fishman, “whose opinions were not embraced
by others in the proceeding, were prejudicial and forced [Ms. Camlin] to
disclose her receipt of disability benefits, which undeniably created
prejudice….” Ms. Camlin’s Brief at 59. Specifically, Ms. Camlin claims that “it
was the utilization of Dr. Fishman’s conclusion that [she] was a malingerer,
faker[,] and free of disability that was so prejudicial.” Id. at 60. Ms. Camlin
further avers that “[i]n an attempt to mitigate the harm created by the
[c]ourt’s erroneous rulings, the jury learned that [she] was the recipient of
disability benefits—evidence that would have been otherwise impermissible as
a collateral source.” Id. at 62 (citing Collins v. Cement Exp., Inc., 447 A.2d
987, 888 (Pa. Super. 1982) (“The collateral source rule prohibits a defendant
in a personal injury action from introducing evidence of the plaintiff’s receipt
of benefits from a collateral source for the same injuries which are alleged to
have been caused by the defendant.”); Restatement (Second) of Torts § 902A,
Comment (c)). Ms. Camlin concludes that “[t]he revelation of [her] receipt of
disability benefits offers a viable explanation as to why [she] was not awarded
the substantial monetary damages that she was entitled to, and offers an
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explanation as to why no pre-trial economic damages were awarded to her.”
Id.
In response to Ms. Camlin’s claim, the trial court opined:
It is obvious that the jury did not find Ms. Camlin to be a
malingerer[.] [O]therwise[,] they would not have awarded her
$454,000.00. [Ms. Camlin’s] … claims that the use of Dr.
Fishman’s report swayed the jury is illogical, counterintuitive[,]
and unsubstantiated speculation. A review of the record refutes
the contention that the jury was somehow unduly influenced by
the use of Dr. Fishman’s report during trial. The twisted theory is
that the jury heard testimony from the report of [Promats’]
discredited expert, Dr. Eric Fishman, who opined that Ms. Camlin
was a malingerer, thus adversely impacting her economic
damages and credibility, and the credibility of those who
supported her claims. Incredibly though, the jury nonetheless
awarded Ms. Camlin $400,000.00 in past and future pain and
suffering and $54,000.00 in future lost wages. What the [c]ourt
suspects is that [Ms. Camlin] is dissatisfied with[:] (1) the total
amount of damages awarded[;] (2) that the damages were
attributed to the settling parties[;] and (3) that the jury found the
non-settling party[,] Promats, not liable. After a review of the
record, sufficient evidence is found to support the verdict[] of
liability of the Pirates and [the] SEA only.
TCO at 20.
Additionally, Ms. Camlin claims that Dr. Fishman’s opinion permeated
the record at trial, despite the fact that no expert relied on his opinion, and
thereby tainted the jury regarding her credibility, as well as the credibility of
her expert witnesses. Ms. Camlin’s Reply Brief at 1-3. The trial court found
Ms. Camlin’s allegation to be misleading. TCO at 20. “If the record is
permeated with reference to Dr. Fishman, those references [were] most often
introduced by [Ms. Camlin’s] counsel, who clearly did a good job of discrediting
the report because the jury found for Ms. Camlin.” Id. at 21.
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Pennsylvania Rule of Evidence 703 provides:
An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those kinds
of facts or data in forming an opinion on the subject, they need
not be admissible for the opinion to be admitted.
Pa.R.E. 703. Applying Rule 703 in the instant matter, the trial court
limited defense counsel’s use of Dr. Fishman’s report for possible
cross-examination of [Ms. Camlin’s] experts and direct
examination of the defense medical expert[,] Dr. Ruben
Echemendia[,] because Dr. Echemendia had relied on Dr.
Fishman’s report and testing data in preparation of his opinion.
Further, Dr. Fishman was listed as a potential expert witness
pretrial[,] and [Ms. Camlin] had copies of his report, yet [Ms.
Camlin’s] counsel had failed to provide copies of his report to some
of their hired experts creating a specific cross[-]examination issue
for defense counsel….
Our Supreme Court in Commonwealth v. Thomas, 282 A.2d
693[] (Pa. 1971), clearly held that an expert could base his
opinion on materials not actually admitted into evidence if they
would be otherwise admissible. In the case sub judice, Dr.
Echemendia relied on Dr. Fishman’s report and testing data when
forming his expert opinion of [Ms. Camlin]. The reliance on the
non-admitted expert report and data clearly falls under Rule 703
and complies with the Supreme Court’s holding in Thomas. Id.
[Ms. Camlin’s] counsel admitted that the content of Dr. Fishman’s
report would be admissible if Dr. Fishman testified.
TCO at 21-22 (unnecessary capitalization, citation to record, and footnote
omitted).
The trial court further noted:
Every expert testified consistent with the jury verdict that Ms.
Camlin was not a malingerer[,] including Dr. Echemendia, the only
[d]efense medical expert. This [c]ourt emphasizes that Dr.
Fishman never testified in this case[,] and his report of
malingering was credibly refuted and discredited by [Ms. Camlin’s]
counsel and by all other medical experts. In spite of all the
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evidence presented to the jury that Ms. Camlin was not a
malingerer and none to the contrary included the [d]efense’s
medical expert[,] Dr. Echemendia, [Ms. Camlin] incredibly argues
that the jury was tainted by Dr. Fishman’s report.
TCO at 25.
As to Ms. Camlin’s assertion that the findings of Douglas King, a forensic
economist,6 were unrebutted and that the sole reason that the jury failed to
award her $1.6 million to $2.6 million, the amount of her future economic
damages projected by Mr. King, was the jury’s exposure to Dr. Fishman’s
findings, the trial court stated:
This [argument] ignores that the jury may have found the opinion
of Dr. Echemendia more compelling, that Ms. Camlin was not a
malingerer, but also that Ms. Camlin was not suffering from brain
dysfunction beyond six months post-accident. Dr. Echemendia
opined that her inability to work was from her experiencing post-
concussion syndrome, which was significantly caused by her self-
perception that she was still suffering from a concussion. It also
ignores that the jury may have considered that Mr. King had
admitted that he was never provided any contrary reports
indicating that Ms. Camlin might be able to work cognitively. More
importantly, Mr. King testified that if he had been given this
information[,] it could have changed his findings. Maybe, the jury
found that his findings were based on mere speculation that Ms.
Camlin would have gotten the higher paying job in Boston.
Id. at 25 (citation to record omitted). We discern no error of law or abuse of
discretion.
Even if the trial court had erred in allowing Dr. Fishman’s opinion into
evidence, any such error would be deemed harmless. Dr. Fishman’s report
was only relevant to damages; however, the jury found that Promats was not
____________________________________________
6 Mr. King was retained by Ms. Camlin to address the financial impact of her
injuries and testified at the trial.
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liable to Ms. Camlin and, thus, never reached the issue of damages. “[A]n
erroneous evidentiary ruling on damages, in a case where the jury has found
for the defendant on the liability issue, is harmless and does not entitle the
plaintiff to a new trial.” Hart, 564 A.2d at 1252.
V. Jury’s Allocation of Liability to SEA – Weight of Evidence
In her last claim, Ms. Camlin asserts that the jury’s decision to allocate
47.5% of liability to the SEA is against the weight of the evidence, as there
was no evidence to establish whether the SEA owned PNC Park on the date
Ms. Camlin sustained her injuries. Ms. Camlin’s Brief at 6, 63-64. We deem
the issue regarding the SEA’s ownership of PNC Park to be waived, as Ms.
Camlin’s own complaint named the SEA as a defendant and averred that the
SEA not only owned PNC Park at the time this action was initiated, but that it
“developed and constructed PNC Park” and “is responsible for the ongoing
maintenance and management of PNC Park and has a duty to keep those
lawfully on the premises safe from dangerous or hazardous conditions.”
Complaint, 3/11/16, at 4-5 ¶¶ 19-22. Moreover, Count III of her complaint
solely addressed the SEA’s liability and expressly stated that “[t]he injuries
and damages suffered by [Ms. Camlin] … were directly and proximately caused
as a result of the negligence, carelessness[,] and recklessness of [the SEA].”
See id. at 17-21 ¶¶ 61-67.
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Additionally, no objection was raised at any time during trial regarding
the assessment of liability against the SEA.7 Ms. Camlin’s counsel did not
object to the SEA’s inclusion on the verdict slip, nor did he raise any objection
after the verdict was read. See N.T. Trial, 12/3/18, at 1786, 1987-89. Based
on the foregoing, we are constrained to deem this issue waived for failure to
preserve this claim before the trial court. See Pa.R.A.P. 302(a) (providing
that “[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal”).8
Even if this claim had been properly preserved, we would conclude that
no relief is warranted. In determining whether the jury’s verdict was against
the weight of the evidence, we note our standard of review:
A new trial based on weight of the evidence issues will not be
granted unless the verdict is so contrary to the evidence as to
shock one’s sense of justice; a mere conflict in testimony will not
suffice as grounds for a new trial. Upon review, the test is not
whether this Court would have reached the same result on the
evidence presented, but, rather, after due consideration of the
evidence found credible by the [jury], and viewing the evidence
____________________________________________
7 We rely on Promats’ assertion that no objection was made on behalf of Ms.
Camlin during trial, see Promats’ Brief at 50-51, as Ms. Camlin fails to point
to any place in the record where this issue was preserved, and it is not this
Court’s responsibility to scour the voluminous certified record to prove that
she preserved her claim. See Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super.
2014); Pa.R.A.P. 2117(c).
8 We acknowledge that Ms. Camlin asserted in her post-trial motion for relief
that there was no evidence provided to establish that the SEA owed her a
duty. Post-Trial Motion, 12/14/18, at 3 ¶ 10. Because this issue was raised
for the first-time in her post-trial motion, we maintain that Ms. Camlin failed
to preserve this claim at trial. See City of Philadelphia, Police Dept. v.
Gray, 633 A.2d 1090, 1095 (Pa. 1993).
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J-A05011-20
in the light most favorable to the verdict winner, whether the court
could reasonably have reached its conclusion.
Elliott v. Ionta, 869 A.2d 502, 504 (Pa. Super. 2005).
Here, the trial court found the jury’s decision to hold the SEA liable to
be supported by testimony presented by Promats:
Specifically, [Promats’] counsel introduced admissions
made by the Pirates and the SEA when questioning Mr.
Montalbano. [Promats’] counsel asked, “Were you provided with
the admissions by the Pirates and the owners of the ballpark, the
[SEA], where they acknowledge that the Pirates and their
contractors and designers chose the locations of the seats when
they built the stadium?” Additionally, testimony was elicited from
Bryan Stroh, general counsel for the Pirates, that the SEA owns
PNC Park. As this testimony shows that the SEA owned PNC Park
when it was built, and that the SEA owned PNC Park at the time
Mr. Stroh testified, the jury could then infer, as it was charged on
circumstantial evidence, that the SEA owned PNC Park on the date
that Ms. Camlin was injured. Thus, the verdict against the SEA is
not against the weight of the evidence because there was
adequate evidence of record to support the SEA owning PNC Park.
TCO at 26 (unnecessary capitalization and citations to record omitted). We
would discern no error of law or abuse of discretion.
Accordingly, we affirm the May 7, 2019 judgment entered on the jury
verdict.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2020
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