HARRISBURG – The Superior Court of Pennsylvania will consider a hospital slip-and-fall case which originated in Philadelphia, received a $1.8 million jury verdict after a half-day trial and saw that same verdict struck down by the presiding judge two months after it was rendered.
Sharon Porter first filed suit in the Philadelphia County Court of Common Pleas on July 7, 2021 versus Thomas Jefferson University – Frankford Hospital (later renamed as “Aria Health–Frankford”). Both parties are of Philadelphia.
“On July 13, 2020, plaintiff was a business invitee at defendant’s hospital, having received treatment on July 12, 2020 and July 13, 2020 at defendant’s emergency room for intestinal problems. On July 13, 2020, plaintiff was directed to a bathroom near the emergency department of defendant’s hospital and utilized the bathroom at that time,” the suit said.
“When attempting to wash her hands in the bathroom as described above, a sudden and unexpected emanation of water from the sink took place, causing plaintiff to become startled, lose her balance and fall to the floor, violently striking her head on the floor of the bathroom. Immediately subsequent to the incident described above, agents and employees of defendant Hospital came to plaintiff’s assistance, and placed her in a gurney and took her to the emergency room for additional, different treatment than she had received immediately prior to the incident taking place.”
The suit added that the defendant hospital failed to maintain and inspect the sink and its appurtenances in the bathroom where the plaintiff’s injury took place;
“Solely as a result of the negligence of the defendant as described above, plaintiff sustained serious and personal injuries including, without limitation, a concussion, post-concussion syndrome, post-traumatic headache which neurologic sequelae including memory difficulty, difficulty concentrating and photophobia, thoracic spine sprain and strain, thoracic spine segmental dysfunction, lumbar spine sprain and strain, lumbar spine segmental dysfunction, left sacroiliitis, left hip sprain and strain, broad disc herniation at C4-5, disc protrusion in the midline impinging upon the Doral sac at C3-4 and C2-3, aggravation of pre-existing disc desiccation with broad disc protrusion at C4-5, C6-7 and C7-T1, disc protrusion at the L5-S1 level, disc protrusion at the L4-5 level, disc protrusion at the L3-4 level, aggravation of pre-existing degenerative disc disease at the cervical and lumbar regions of plaintiff’s back, and a severe nervous shock which injuries may be permanent and thereby impair her future earning capacity,” the suit stated.
“She has suffered and continues to suffer pain and inconvenience as a result of her injuries. She has been and is apt to be prevented from attending to her usual duties and occupations. She has incurred and will in the future incur medical expenses in the treatment of her injuries. Plaintiff claims as additional damages from defendant, all items of economic loss not covered by applicable security.”
On Nov. 19, 2021, the hospital answered the complaint and denied its substantive allegations, while countering that the plaintiff was comparatively negligent in the incident in question and failed to mitigate her own damages, among other defenses.
The case proceeded to arbitration in May 2022, which found in favor of the hospital and determined it was not negligent for Porter’s injuries. However, Porter appealed the finding and sought a jury trial, which took place in the Philadelphia County Court of Common Pleas in March 2023.
After a trial which lasted half a day, the jury found in favor of the plaintiff – to the tune of $1.8 million and to be distributed in increments of $6,000 per month.
But in a May 11 order, Philadelphia County Court of Common Pleas Judge James C. Crumlish III struck down the seven-figure amount, through a post-trial grant of judgment notwithstanding the verdict.
In a supplemental opinion issued the same day, Crumlish explained while the hospital’s counsel’s post-trial brief “specifically cites at length from the transcript of the trial”, plaintiff counsel’s brief “argues generalities and references counsel’s theories and opinions they submitted to the jury as counsel’s arguments as justification for the extraordinary outcome.”
“The Court, in carefully reviewing the submissions and listening carefully to the plaintiff’s post-trial arguments, the Court is still at a loss to comprehend how it and the jury could rely upon as evidence of record what plaintiff claims happened, how the incident is as a matter of admitted evidence (and the unfilled vacuum on absent evidence) was a legal or factual basis to conclude liability to some dereliction of defendant’s part and whether plaintiff has proven a basis to recover non-economic damages,” Crumlish said, in part.
Crumlish added that “unsubstantiated and unproven theoretical assumptions and unproven (or even offered) evidence advanced by counsel clearly led to a verdict that shocks the Court’s conscience as to the assessment of liability and damages.”
Crumlish pointed out that while the plaintiff provided testimony on her own behalf, along with that of a hospital engineer and a medical expert, the judge added that the plaintiff “did not provide any expert testimony of liability or offer any direct evidence in her case in chief regarding the hospital’s negligent or otherwise deficient inspection or cleaning procedures related to the sink.”
“Plaintiff did not produce a life care, economist or vocational expert to testify on the economics of the plaintiff’s alleged damages or the cost of her future medical care. Instead, plaintiff questioned Dr. Richard DuShuttle about the approximate cost of ‘possible’ future medical visits, which he estimated to be $250 per visit. He opined that plaintiff would need medical treatment approximately 28 days per year and physical therapy visits totaling 3-4 weeks per year. Based upon Dr. DuShuttle’s cost estimate, there was no basis for the jury to conclude that the economic impact of her condition represented $6,000/month, the jury’s monetary award,” Crumlish said.
Porter’s counsel appealed to the Superior Court on June 6, where the case remains pending.
The plaintiff filed an appellant brief on Oct. 2, which postulated that the defendant can be held liable merely for owning the faucet, that the defendant’s maintenance crew “would have caused” the faucet to loosen when it cleaned and wiped it down and that the trial court erred, both in concluding that Porter failed to prove constructive notice of a defect and in considering a motion for JNOV.
Meanwhile, the hospital filed an appellee brief on Nov. 14, concurring with Crumlish’s prior opinion.
“Plaintiff’s contention that defendant can be held liable merely for owning the faucet directly contravenes Pennsylvania law. Strict liability has no applicability in a premises liability case and Pennsylvania law does not permit a finding of liability in this context absent proof that a defendant did something wrong. Similarly, plaintiff’s attempt to fill in the gaping hole in her case at the post-trial motion and appellate stage by baselessly claiming that defendant’s maintenance crew ‘would have caused’ the faucet to loosen when it purportedly cleaned and wiped it down must be disregarded,” the appellee brief stated, in part.
“As the trial court found, plaintiff introduced no evidence to establish that anything ‘was loosened’ but simply claimed that this was a possibility after the fact. Indeed, notwithstanding that she bore the burden of proof, plaintiff introduced no evidence as to what part of the sink actually failed, or how. Plaintiff’s claims that the trial court erred in concluding that she failed to prove constructive notice of a defect fares no better. Not only did plaintiff fail to establish a defect – to make any issue of constructive knowledge relevant – but any claim that defendant should have known the faucet was faulty because defendant’s employees regularly cleaned the bathroom is belied by the record. Defendant’s employees testified that there were no records of any prior issues with the bathroom faucet. Moreover, and more importantly, plaintiff herself testified that she observed nothing wrong with the sink or faucet before she attempted to use it.”
The hospital found that JNOV motion was properly considered by the trial court, since it “meticulously reviewed the record and found that there simply was no record evidence that defendant actually caused any defect in the faucet, ‘spigot’ or sink or, alternatively, that the faucet, ‘spigot’ or sink were defective, and that defendant had actual or constructive knowledge of an such condition but failed to address it.”
For a lone count of negligence, the plaintiff had sought damages not in excess of the statutory jurisdictional limit for arbitration, plus costs of this action and damages for delay.
The plaintiff is represented by James D. Rosen of Rosen Schafer & DiMeo, in Philadelphia.
The defendant is represented by John Jacob Hare and Shane Haselbarth of Marshall Dennehey and Jessica N. Smeriglio of Goldberg Miller & Rubin, all in Philadelphia, plus Maureen M. McBride and Andrew P. Stafford of Lamb McErlane in West Chester and Newtown Square.
Superior Court of Pennsylvania case 1554 EDA 2023
Philadelphia County Court of Common Pleas case 210700236
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com