PENNSYLVANIA RECORD

A federal judge in Philadelphia has denied a petition for a new trial in a workplace injury

case that ended in a defense verdict.

U.S. District Judge Petrese B. Tucker, of the Eastern District of Pennsylvania, denied this month a motion that had been filed by plaintiffs Barbara and John Zaprala, who had sued USI Services Inc. over knee and hand injuries Barbara sustained on March 10, 2007, after slipping inside of the Macy’s store at the King of Prussia Mall in Montgomery County.

Barbara claimed she became injured after slipping and falling on the tile floor near her workstation at the time she was leaving work for the evening.

The injuries, she claimed, caused her to have to undergo knee replacement surgery, and caused other physical complications, such as an infection and pulmonary embolism.

The defendant in the case, USI Services, is an independent contractor that provided janitorial services to Macy’s.

Barbara claimed that she had slipped on a wet spot inside the department store that was created by melting snow that USI employees had tracked into the store on the bottom of their shoes.

Following a six-day jury trial in early February 2011, however, jurors returned a verdict in favor of USI, finding that it had not been negligent in the case, the record shows.

The plaintiffs subsequently filed a motion seeking a new trial, arguing on appeal that there was improper admission or exclusion of evidence, improper instructions to the jury, and that the jury’s verdict was against the clear weight of the evidence.

Under one argument, the plaintiffs argued that the court should not have permitted testimony from Stephen Wistar, USI’s meteorologist, regarding his contention that no precipitation fell during the period in question.

The couple also argued that the court should not have allowed Wistar’s testimony that snow in the mall’s parking garage, walkway or elsewhere around the Macy’s store had melted naturally prior to March 10, 2007.

Wistar’s qualifications and the reliability of his methodology were not questioned by the plaintiffs, rather the couple challenged the “fit” prong of the admissibility of expert testimony, which demands that the court ascertain whether the testimony is “relevant for the purposes of the case,” and whether it assists “the trier of fact,” according to the judicial memorandum.

The plaintiffs had argued that the fit requirement wasn’t met because Wistar testified that he was advised of certain snow removal activities by defense counsel, but was not personally aware of when the snow was removed or that it had, in fact, melted.

Tucker, however, wrote that the court finds these arguments “unpersuasive.”

“Mr. Wistar offered expert testimony that, based on climatological data, there was no snow or ice on the ground at King of Prussia Mall on the date of the incident,” the judge wrote in her memorandum. “This testimony was clearly ‘relevant for the purposes of the case,’ because the Plaintiffs’ entire theory of this case was that Barbara Zaprala slipped on snow or ice tracked into the Macy’s store by customers.”

Additionally, just like any other expert witness, Wistar was not required to have personal knowledge of certain facts or data that were used in formulating his opinion, Tucker wrote.

“As such, it was entirely proper for him to rely on information received by or made known to him at or before trial,” the memorandum states.

“The true source of Plaintiffs’ ire appears to be the fact that Mr. Wistar was not an eyewitness to the ground conditions outside of the Macy’s entrance on the day of the incident and admitted that he had not visited the site of the incident,” Tucker continued. “But this is of little consequence, given that Plaintiffs did not produce any climatological data or eyewitnesses to contradict Mr. Wistar’s opinion that there was no snow in the parking lot or on the pedestrian walkway on the date of the incident.”

Addressing another one of the plaintiffs’ arguments, Tucker wrote that the court properly instructed the jury regarding the duty of care owed by the defendant.

The plaintiffs had argued that the judge’s charge to the jury did not adequately advise the jury that the specific duty of care that USI had to Barbara Zaprala was the same duty of care that Macy’s had to the woman.

Tucker wrote that she was not persuaded by this argument, finding that the court did not err in not using the precise language that the plaintiffs now argue should have been included in the jury instructions.

“In total, the Court’s charge to the jury included six separate instructions on the issue of negligence,” the judge wrote. “The Court finds that those instructions, taken together, adequately advised the jury of the duty of care USI owed to Barbara Zaprala.”

Tucker wrote that it was unnecessary for the court to specifically state that USI has the “same duty of care that Macy’s had to Plaintiff” given all the other instructions provided on the issue of negligence, and Macy’s not being a party to the lawsuit.

The judge wrote that the Restatement (Second) of Torts places the same liability on an independent contractor as the possessor of land, but only to the extent of the act or activity the independent contractor is performing on behalf of the possessor.

“It would therefore have been inaccurate for the Court to suggest to the jury that USI owed the same duty, in all respects, as did Macy’s,” Tucker wrote.

The judge also wrote that the jury’s verdict was, in fact, against the clear weight of the evidence.

The argument that it was not was based on the plaintiffs’ contention that the contract terms between Macy’s and USI were unambiguous, with the couple arguing that the contract, “clearly indicated” USI’s duties and responsibilities, and that factual testimony “clearly indicated” that USI breached that duty.

Tucker, however, wrote that the contract was not unambiguous, and that the plaintiffs’ argument is misguided because this was a negligence action, not a breach of contract action.

“Whether or not the Janitorial Contract was clear and unambiguous does not conclusively answer the question of whether USI acted reasonably,” the judge wrote. “Because the contract was ambiguous, extrinsic evidence regarding its meaning was properly admitted.”