Fullam, V. v. Miller Brothers (memorandum)

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J-S68024-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 VICTORIA FULLAM AND JANUSZ KACZMARKSI, W/H IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. MILLER BROTHERS, A DIVISION OF MILLER BROS., INC. Appellee No. 106 EDA 2013 Appeal from the Judgment Entered December 4, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 987 February Term, 2010 BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J.* MEMORANDUM BY OTT, J.: FILED APRIL 30, 2014 Victoria Fullam1 appeals the judgment entered on December 4, 2012 in the Philadelphia County Court of Common Pleas, in favor of Miller Brothers, a liable and Miller Brothers 15% in this premises liability negligence action. On appeal, Fullam argues the trial court abused its discretion in failing to ____________________________________________ * 1 Retired Senior Judge assigned to the Superior Court. , brought a separate claim for loss of consortium. Prior to the start of trial, however, defense counsel informed the trial court that he was withdrawing that claim. N.T., 10/1/2012, at 22. J-S68024-13 ny, limine For the reasons set forth below, we affirm. by the trial court as follows: On February 19, 2008, [Fullam] sustained injuries when she fell into a hole that was partially covered by a metal plate at the intersection of 34th and Market Streets. [Fullam] testified that she did not see the hole, and that it was located in the cross-walk where she was directed to witnesses testified that [Fullam] walked right into the clearly cordoned off construction zone despite signs that explicitly directed pedestrians where to walk. The construction project construction site every morning before work. [Fullam] saw the barrels, cones, and tape that were blocking pedestrians from crossing on Market Street clear pathway. The only way to get into that area was to go over or under the caution tape. Although she was aware of and saw all the construction activity, she chose not to take an alternative route despite the fact that there were available stified that they followed all applicable safety standards to ensure the safety of the site. Hundreds or thousands of pedestrians had walked that intersection from 7:00 a.m. until noon when [Fullam] fell on the date of the incident. Mr. Puglizse, a foreman for Miller Brothers, witnessed [Fullam] walk around the backhoe that was within the construction zone, climb over a pile of dirt and fall.[2] When [Fullam] fell, Mike Miller, Vice-President of Miller Brothers, and Mr. Puglizse came to her side to offer assistance. [Fullam] ____________________________________________ 2 Puglizse testified that he did not actually see Fullam walk under caution tape into the construction area. N.T., 10/2/2013, at 111. His testimony described what she would have passed once she entered that area before she fell. Id. at 115. -2- J-S68024-13 refused medical help and did not want an ambulance because she had a dentist appointment she did not want to miss. Miller and Puglizse testified that [Fullam] was disoriented, and that [she] told them she was on painkillers for her tooth. [Fullam] testified that she had only taken ibuprofen prior to the fall. and took her to the emergency room at Chestnut Hill Hospital. [Fullam] injured her right foot (a fifth metatarsal base fracture). She had one visit to a podiatrist at Chestnut Hill Hospital for the injury to her foot, but discontinued care with him because he was not on her health insurance plan. Subsequently she saw Dr. Shannon at Penn-Presbyterian until August of 2008 when she reached maximum improvement. Although she felt initial improvement, after about a year her foot started to feel worse and she experienced difficulty walking distances and exerting pressure on it. Her attorney gave her a list of physician names, and she selected Dr. [Harold] Schoenhaus. Dr. Schoenhaus treated [Fullam] and recommended future surgery. She had health insurance, which had paid her past medical bills with the exception of some out of pocket expenses such as co-pays. Trial Court Opinion, 7/22/2013, at 2-4 (footnotes omitted). On February 8, 2010, Fullam filed a premises liability negligence action against Miller Brothers. Less than a week before trial, Fullam filed a motion in limine seeking to preclude any reference to the fact that she had taken Vicodin or other narcotics medication on the morning of her fall. During pretrial arguments, Fullam asserted that to permit such testimony or no witness saw her impaired prior to her fall. N.T., 10/1/2012, 11. The trial court granted the motion. Fullam also made an oral motion to preclude Miller Brothers from eliciting testimony that her medical expert and treating physician, Dr. Schoenhaus, was recommended -3- J-S68024-13 Id. at 16. On October 3, 2012, a jury returned a verdict finding both Fullam and Miller Brothers negligent, and finding their negligence was a substantial trial motion seeking a new trial, which was denied by the trial court on November 29, 2012. Thereafter, on December 4, 2012, Miller Brothers praeciped to have judgment entered in their favor on the verdict. This timely appeal follows.3 The relief Fullam order denying a motion for a new trial is well-established. We must controlled the outcome of the case, or committed an abuse of disc Polett v. Public Communications, Inc., 83 A.3d 205, 214 (Pa. Super. 2013) (en banc) (citation omitted). A trial court commits an abuse of discretion when it rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will. ____________________________________________ 3 On January 30, 2013, the trial court ordered Fullam to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). February 20, 2013. -4- J-S68024-13 Id. (citation omitted). In her first issue, Fullam contends the trial court erred in failing to grant her a new trial after Miller Brothers violated a pretrial order precluding intoxication on the day of the accident. Fullam contends Miller Brothers to the jury that [Fullam] was disoriented as a result of pain killers before her fall and waddled her way into an active construction comments were so prejudicial as to warrant a new trial. When considering a challenge to the admissibility of evidence, we must bear in mind that such rulings are within the sound discretion of the trial court, and will not be disturbed by this Court absent an abuse of discretion or misapplication of the law. Schuenemann v. Dreemz, LLC, 34 A.3d 94, evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party Phillips v. Lock, 2014 PA Super 38 [1634 EDA 2013], *9 (February 28, 2014) (citation omitted). By way of background, Fullam filed a motion in limine seeking to evidence of Vicodin or other narcotics consumption or intoxication at the -5- J-S68024-13 4 During pretrial arguments, Miller Brothers opposed the motion because its witnesses were prepared to testify that, after the fall, Fullam told them she had taken Vicodin that morning for her tooth pain, an allegation that Fullman denies. N.T., 10/1/2012, at 10, 12. Fullam argued that in order to present evidence of narcotics consumption or intoxication, Miller Brothers was required to demonstrate that Fullam was actually impaired before the fall. Because the defense witnesses testified in their Fullam asserts that Miller Brothers would be unable to do so. N.T., motion in limine. During her direct examination, Fullam denied that she had any tooth pain before the fall, but admitted th that morning in advance of her dentist appointment. Id. at 93. However, defense witnesses, Michael Miller and John Puglizse, both testified that, after he, and had to get to the dentist. See N.T., 10/2/2012, at 87, 95, 111. Further, Miller Id. at 87. Fullam did not object to this testimony. ____________________________________________ 4 Vicodin/Narcotic Medication Consumption, 9/27/2012, at 4. -6- J-S68024-13 Prior to closing arguments, Fullam reiterated her objection to any reference Id. at 224. She argued that any mention of her being intoxicated would be a violation of the motion in limine. The trial court responded by Id. at 226. During closing arguments, Miller Brothers made the following comments, which Fullam contends were objectionable: The reason this accident occurred is because [Fullam] was happened hire. (sic) She had broken her tooth two days earlier. She was in a great deal of pain. So much pain her dentist had canceled his lunch visit to see her that day. Can you imagine what kind of pain you would have to express to a dental receptionist and then to a dentist to get a dentist to break a lunch appointment to see you? Do you know what kind of pain is like, the riveting pain of a tooth ache? She testified she was on painkillers. That was her testimony. mouth, painkillers. Now counsel for plaintiff is suggesting to you it was just Ibuprofen. You can imagine what kind of painkiller *** pain that afternoon, that noon, she was enraptured by pain, she *** -7- J-S68024-13 The fact of the matter is these men have an independent recollection of picking this woman up when she was in a work zone where she had no business to be. They were clear as a bell when they told you she was disoriented. She was on painkillers. where she was going. N.T., 10/3/2012, at 43, 45-46, 68. regious that no curative instruction [could] adequately -20 (citation omitted). Therefore, Fullam argues, the only appropriate remedy is a new trial. as waived closing, or immediately thereafter. Indeed, Fullam objected for the first time in her post- concluded it was unable to grant post-trial relief. Trial Court Opinion, 7/22/2013, at 7 n.54. However, Fullam argues that she made a preemptive objection before not going to act to stop [Miller Brothers] from arguing regarding painkillers -8- J-S68024-13 Accordingly, she contends she did not waive this issue on appeal when she It is well-establ litigants must make timely and specific objections during trial and raise the issue in post- Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1124 (Pa. 2000) (emphasis supplied). However, Pennsylvania Rule of Evidence 103 provides that once the trial court enters a definitive ruling Pa.R.E. 103(b) limine may preserve an objection for appeal without any need to renew the objection at Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (citations omitted), appeal denied, 49 A.3d 441 (Pa. 2012). We find that had Miller Brothers argued Fullam took Vicodin, or was preserved her issue for limine. Rather, Miller Brothers argued that Fullam had taken painkillers and was disoriented, an argument that was supported by the testimony of both Miller and Pugliezse to which Fullam did not object. See N.T., 10/1/2012, at 87, -9- J-S68024-13 fair comment on the evidence presented at trial. Hyrcza v. West Penn Allegheny Health System, Inc. long as no liberties are taken with the evidence, a lawyer is free to draw such inferences as he wishes from the testimony and to present his case in the light most suited to advance his cause and win a verdict in the jury appeal denied, 987 A.2d 161 (Pa. 2009). Accordingly, because the comments did not clearly violate the motion in limine, and were, in fact, based upon evidence presented at trial to which Fullam did not object, Fullam should have lodged an objection either during closing argument pushed the boundaries of fair comment. Therefore, we find her present objection waived for our review.5 ____________________________________________ 5 We note that even in the cases which Fullam cites for support, the aggrieved party lodged an immediate objection at the time the improper comments were made. See Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007) (trial court erred in failing to grant a new trial when defense counsel counsel lodged immediate objection), appeal denied, 959 A.2d 320 (Pa. 2008); Siegal v. Stefanyszyn, 718 A.2d 1274, 1277 (Pa. Super. 1998) (trial court erred in failing to grant new trial when counsel made improper appeal denied, 739 A.2d 1059 (Pa. 1999). Furthermore, we note that although the trial court indicated in its opinion it would have granted relief had an objection been made, the court did not specify that it would have granted a mistrial. Rather, a curative instruction, that the jury must rely on its own recollection of the testimony presented at trial, may have sufficed to cure any potential prejudice. In (Footnote Continued Next Page) - 10 - J-S68024-13 Next, Fullam argues the trial court erred in failing to grant her a new trial based upon three erroneous evidentiary rulings. Specifically, Fullam contends the trial court abused its discretion (1) in denying her motion in limine to preclude Miller Brothers from presenting evidence of how she obtained the names of her treating physicians; (2) in permitting Miller Brothers to present evidence that there were no other falls at the construction site; and (3) in permitting Miller Brothers to present the testimony of a process server to demonstrate that a witness failed to appear despite being served with a subpoena. Again, we conclude Fullam is entitled to no relief. First, Fullam argues that the trial court erred in permitting testimony concerning how she received the names of her treating physicians, Dr. Schoenhaus and Dr. Song Lee, because Miller Brothers failed to present any medical expert testimony, and, therefore, there was no actual dispute concerning the extent of her injuries or their causal relationship to her fall. (Footnote Continued) _______________________ and what they say is n - 11 - J-S68024-13 Brief 23-24. We disagree. During pretrial arguments, Fullam made an untimely oral motion in limine to preclude Miller Brothers from eliciting testimony that Fullam received the name of her treating physician, and only medical expert witness, Dr. Schoenhaus, from her attorney. See N.T., 10/1/2012, at 16. Id. Thereafter, the Id. Although Fullam argued that the fact was not relevant, Miller Brothers asserted that it was a fact for the jury to consider. The trial court agreed, and denied the motion in limine. Id. at 17. During her direct examination, Fullam testified that she was treated by Dr. Lee for the injury to her wrist, and by Dr. Schoenhasue for the injury to her foot. Id. at 114, 117. She acknowledged that she was referred to Dr. Lee by her cousin, Nancy Fullam, who happens to be an attorney, and she was referred to Dr. Shoenhaus by her trial attorney. Id. at 115-117, 151. Pa.R.E. 607(b). Moreover, it is well-established that: Impeachment of an expert witness by demonstrating partiality is permissible. It is proper to ask an expert witness his fee for testifying, as well as whether he has a personal friendship with the party or counsel calling him. - 12 - J-S68024-13 J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa. Super. 2004) (citations omitted). Fullam got the names of her treating physicians was relevant to demonstrate pposing medical expert testimony, the jury was still required to weigh the credibility of J.S., supra. With regard to th See N.T., 10/1/2012, at 15-16. Hence, because Fullam never objected to the inquiry regarding how she obtained the name of Dr. Lee, we could consider her challenge now waived. Harman ex rel. Harman, supra. Nevertheless, assuming arguendo the issue is preserved, we conclude that 6 Moreover, any evidence regarding the diagnosis and treatment of her injuries was relevant to the issue of damages, an issue that was, ultimately, not reached by the jury. Therefore, Fullam cannot demonstrate she was ____________________________________________ 6 Specifically, with regard to Dr. Lee, Fullam testified that her cousin, Nancy, 10/1/2012, at 116. - 13 - J-S68024-13 prejudiced by this testimony, and, accordingly, no relief is warranted. See Phillips, supra. Next, Fullam contends the trial court abused its discretion when it permitted Miller Brothers to elicit testimony that there were no other falls at the construction site on the day of the accident, and failed to instruct the ju was free from negligence or that [Fullam] was negligent in causing her own prejudicial because it allowed improper assumption that a lack of prior falls at the same location was evidence that [Miller Brothers] had acted properly, and, more importantly, Id. at 26. During opening arguments, Miller Brothers stated several times that no one else fell at the construction site. N.T., 10/1/2012, at 73, 78, 80. Following arguments, Fullam lodged an objection arguing the fact that no t before a jury as a basis Id. at 86. While the trial court denied the objection, it took under advisement Id. at 84. Pennsylvania courts have permitted, in different contexts, similar evidence regarding the lack of prior claims. In Spino v. John S. Tilley Ladder Co., 696 A.2d 1169 (Pa. 1997), a products liability case, the - 14 - J-S68024-13 -existence of accident occurred while others were using a product similar to that which Id. at 1173. More relevant to the facts at issue, in Orlando v. Herco, Inc., 505 A.2d 308 (Pa. Super. 1984), a case based on which [the plaintiff] became ill, twenty other guests had ordered shrimp Id. at 310. Although the plaintiff argued that the issue was whether the food served to him was unmerchantable, this Court concluded that creole sold that evening, prepared at the same time and using common ingredients, was found to be fit for human consumption was a relevant fact Id. Here, the trial court concluded the testimony concerning the lack of the accident occurred. The court opined: The evidence and arguments were properly presented to show arnings and signage and that there was no dangerous condition within the cross-walk area where [Miller Brothers] had directed pedestrian traffic. [Fullum] testified that she fell in the cross-walk where [Miller Brothers] directed people to walk. [Miller [she] crossed the barricade and entered an area where she was not permitted to be. This evidence was properly allowed to show that at that same time and place many other people properly followed the signs and warnings to take the proper path without any incident or accident of a similar nature occurring. - 15 - J-S68024-13 Trial Court Opinion, 7/22/2013, at 12-13. We detect no abuse of discretion on the part of the trial court in permitting this testimony.7 Accordingly, this issue fails. Fullam also asserts the trial court erred in permitting Miller Brothers to present the testimony of a process server to explain that he served a subpoena on defense witness, Shirley Mackin, whom Miller Brothers referred to in its opening argument, but who failed to appear for trial. Fullam contends that the testimony of the process server was irrelevant, and desperately attempted to obtain her pr -28. Our review of the certified record reveals that Fullam failed to raise this claim either in her post-trial motions, or in her Rule 1925(b) concise statement. Either omission is fatal to her claim. See Sovereign Bank v. ____________________________________________ 7 a cautionary instruction that evidence of a lack of similar falls does not definitively establish that Miller Brothers was not negligent, we find such challenge waived. When Fullam requested the instruction following opening arguments, the court informed her that he would take it under advisement. Fullam does not indicate that she renewed her request either before or after ingly, it is now waived. See Blumer, supra, limine until trial, the party that brought the motion must renew the objection at trial or - 16 - J-S68024-13 Valentino post-trial motions but fails to raise a certain issue, that issue is deemed is waived for our review. Lastly, Fullam contends she is entitled to a new trial based upon an Our review of a challenge to a jury charge is well-settled: We will grant a new trial based on an error in the jury charge if Price v. Guy, 558 Pa. 42, 45, 735 A.2d 668, 670 71 (1999) (citation omitted). A jury instruction is faulty if the evidence presented at trial does not support it. See Marlowe v. Travelers' Ins. Co., 313 Pa. 430, 432 33, 169 A. 100, 101 (1933). When the record is void of evidence satisfying the elements of a particular legal doctrine, the trial court commits a reversible error by discussing that doctrine in its charge. See Angelo v. Diamontoni, 871 A.2d 1276, 1279 (Pa.Super.2005). Mirabel v. Morales, 57 A.3d 144, 153 (Pa. Super. 2012). person who has a choice of two ways to travel, one being perfectly safe and the other subject to risk and danger, voluntarily choses the risky path and is injured. Id. at 153-154. In Mirabel, supra, this Court explained: - 17 - J-S68024-13 In order for there to be sufficient evidence to warrant a jury instruction for the doctrine, there must be evidence of (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge application and it should only be applied in the clearest case. In cases in which the doctrine has been applied to find that the plaintiff was contributorily negligent, the danger the plaintiff chose to confront was indisputably obvious. Id. at 154 (internal citations and quotation marks omitted). was improper because -30. While this argument conforms with , two of Miller off to pedestrians. N.T., 10/2/2012, at 44, 47, 87, 110-111, 115. The trial charge as follows: Here, there was evidence of several safe courses, evidence of a dangerous course, and facts that would have put a reasonable person on notice of the danger or actual knowledge of the danger. First, there was testimony that [Fullam] could have followed the signs instructing her where to walk to avoid the cordoned off area of construction she walked through. There was also testimony that both 33rd Street or northbound 36th Street were both safe available alternative routes. [Fullam] testified that she did not choose to take another route because gone which was up 34th Street and to follow whatever [she] route that [Fullam] chose to take was dangerous. There was testimony and evidence that [Fullam] walked into a cordoned off area of construction where pedestrians were not permitted to be. - 18 - J-S68024-13 There was active construction activity going on in the area where [Fullam] fell. It was cordoned off because it was not a safe area for pedestrians to walk through. Third, there was evidence that a reasonable person would have been on actual or constructive notice of the danger of the course she took. [Fullam] was fully aware of the fact that construction activity was taking place at 34th and Market Streets because she worked nearby and drove past the site every morning on her way to work. The construction site was enormous. [Fullam] saw the barrels, cones, and tape that were blocking pedestrians from crossing directing pedestrians to a clear pathway. Although [Fullam] testified that she fell within the crosswalk [Miller Brothers] directed her to follow, there was significant testimony and evidence that in fact she crossed over the barriers and walked into the cordoned off area of construction where she was not permitted to be. Thus, there was sufficient evidence that a safer route existed, and that [Fullam] chose to take a route that was clearly dangerous. Therefore, it was proper for the Court to instruct the jury as to Trial Court Opinion, 7/22/2013, at 13-14. We agree with the finding of the trial court that the testimony presented by Miller Brothers, as summarized above, supported a jury charge 8 meritless. ____________________________________________ 8 The negligence, the court stated: [Miller Brothers] has specific grounds of contributory negligence of [Fullam] that are alleged in this case. One [it] alleges that and that she failed to comply with the barriers, road signs and (Footnote Continued Next Page) - 19 - J-S68024-13 Accordingly, because we conclude Fullam has failed to establish that the trial court abused its discretion in denying her request for a new trial, we affirm the judgment entered in favor of Miller Brothers. Judgment affirmed. Strassburger, J., files a dissenting memorandum. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/30/2014 (Footnote Continued) _______________________ caution way which was perfectly safe, and that in crossing Market Street at either 33rd or 36th Street rather than crossing at 34th Street which she knew was under construction. These are actions [that] lean towards her negligence. So, those are the things you will consider when deciding N.T., 10/3/2012, at 118-119. - 20 -

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