HARRISBURG – The Superior Court of Pennsylvania recently upheld a jury verdict of $640,000 in favor of a woman who sustained serious ankle and back injuries when she fell on an uncleared portion of snow while picking up her grandson from his day care center.
A trio of judges from the Superior Court upheld the trial court verdict from the Luzerne County Court of Common Pleas on May 11, with Judge Victor P. Stabile authoring the Court’s opinion in this matter.
Plaintiff Joann Babbish and her husband arrived at the Pixie Paradise Child Care Center in Hazleton at approximately 3 p.m. on Feb. 4, 2014, to pick up their grandson. Her husband pulled into an on-street parking spot in front of the child care center.
Snow had fallen the day before and, on the morning of Feb. 4, appellant Deborah Rizzo cleared parts of the paved area in front of the building, as well as a path from the main entrance to the street where the Babbishes were parked, along with two additional paths from side exits of the building.
As the trial court stated, “Rizzo deposited the cleared snow onto the uncleared sections atop the paved surface between the building and the roads abutting [appellants’] property.”
Babbish left the car and stepped over accumulations of snow deposited by Rizzo on an unshoveled part of the paved surface, proceeded without incident into the building, retrieved her grandson and his diaper bag, and began her return to the car along the same route she took on her way in.
As she approached the car, she slipped and fell, sustaining injuries that included a fractured ankle and back injuries. Babbish then filed suit against the appellants claiming negligence, and following a trial, a jury awarded her $800,000, subject to a finding of 20 percent comparative negligence on her part – reducing her payday to $640,000.
The appellants filed motions seeking remittitur, a new trial, and judgment notwithstanding the verdict but the court denied the trio of motions on Feb. 28, 2019. On March 20, 2019, the trial court added delay damages of $56,473.42 to the verdict, which was reduced to judgment the following day and which was then followed by the instant appeal.
First, the appellant charged the trial court with failing to deliver an instruction to the jury on assumption of risk – despite acknowledging that such an instruction is no longer widely used in Pennsylvania courts. Though it has not been formally abolished by the state Supreme Court, the Superior Court panel noted it has “fallen into disfavor.”
“In its charge, the trial court explained negligence principles and instructed that the jury must decide whether Rizzo was negligent. The court then noted that Rizzo claimed Babbish’s own negligence was a factual cause of her injury and instructed that Rizzo had the burden to prove Babbish was negligent and that her negligence was a factual cause of her injury,” Stabile said.
“The court went on to indicate that the jury must determine each party’s share of negligence; that Babbish could not recover if her percentage of negligence is greater than 50 percent; that she could recover if her negligence was less than or equal to Rizzo’s; and that the jury was not to consider the percentages of negligence when deciding damages.”
Secondly, the appellant alleged the court failed to properly instruct the jury on “choice of ways," or the issue of whether there was an alternative, safe path for which Babbish could have walked and therefore, could have avoided any possibility for contributory negligence to her own injuries.
On this point, there was conflicting testimony given at trial, between the appellants as to whether there was a car in that spot from the time they arrived at the Child Care Center until Babbish fell, and Rizzo.
Counsel suggested that “if she had another way to get [to the car] that was perfectly safe that wouldn’t have caused her injury and any risk and she failed to take that one, then she is responsible for her actions and not Rizzo.”
“In their third issue, appellants claim trial court error for failure to instruct that a possessor of land is not an insurer of safety and that property owner owes duties to pedestrians to maintain sidewalks and to remove snow. None of the proposed points for charge are based on Pennsylvania Suggested Standard Jury Instructions, although most include citations to case law,” Stabile stated.
As for the appellants’ fourth allegation of error, Stabile explained in reviewing the jury instructions regarding their consideration for possessors of land, sidewalks and snow removal, the court found no error of law or abuse of discretion in this matter.
Stabile felt the court “properly charged the jury” on both the issue of comparative negligence and the duties of a property owner to maintain sidewalks in a reasonable condition and “there were no issues relating to when snow was removed, nor were there any issues relating to accumulations of snow and ice.”
Stabile added it was simply a situation in which Rizzo shoveled part, but not all, of the seven and a half-foot wide paved surface that ran the length of the building between the Child Care Center and the street, and that it was purely up to the jury to determine whether she was reasonable in removing some, but not all, of the snow from the area, in clearing three paths from the doors of the building to the abutting streets and alley, and in depositing the shoveled snow on top of the portions she did not shovel.
“Finally, despite appellants’ protests to the contrary, the court did not ask the jury to determine whether Rizzo owed a duty to clear the entire paved surface. Rather, the court explained that ‘the parties dispute what constitutes a sidewalk.’ The jury was charged with making a factual determination as to ‘what area constitutes the sidewalk in this case.’ After doing so, the jury was to determine whether Rizzo, as the person in possession of land, acted reasonably in maintaining ‘abutting public sidewalks in a reasonably safe condition,” Stabile said.
“Mindful of our standard of review, we find that the charge as a whole was adequate and did not have a tendency to mislead the jury. Finding no clear abuse of discretion or error of law controlling the outcome of the case, we shall not disturb the jury’s verdict.”
Superior Court of Pennsylvania case 515 MDA 2019
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com