J-A21003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LISA A. KETCHUM AND JEFFREY A. IN THE SUPERIOR COURT OF
KETCHUM, H/W, PENNSYLVANIA
Appellants
v.
GIANT FOOD STORES LLC,
Appellee No. 379 EDA 2014
Appeal from the Judgment Entered December 17, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2012 No. 002302
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 30, 2014
judgment entered on a jury verdict in favor of Giant Food Stores, LLC
The Ketchums commenced a negligence action against Giant seeking
to recover damages for injuries they sustained on June 22, 2010, after she
allegedly slipped and fell on some candles while shopping in the frozen food
section of a Giant-operated grocery store located in Morrisville,
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*
Retired Senior Judge assigned to the Superior Court.
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Pennsylvania.1 Trial Court Opinion 12/17/13, at 1-2. Mr. Ketchum asserted
a loss of consortium. The case proceeded to a jury trial on August 19, 2013.
Evidence was presented to the jury that, in order to prevent boxes of
candles from being inadvertently knocked to the floor, the boxes have a
center hole that slides onto a metal rod that is curved up to prevent them
from sliding from the display. N.T., 8/19/13, at 63. Furthermore, Giant had
a procedure in place whereby an employee would inspect the entire store
once every hour for any obstacles, spills, or debris. Id. at 33. At
approximately 2:17 p.m., a Giant employee completed an inspection of the
aisle where Mrs. Ketchum fell and found no hazards. Id. at 47. It was
reported that Mrs. Ketchum fell in aisle seventeen at approximately 2:30
p.m. Id
employees created the condition that led to the accident, or that anyone had
notified an employee of the spill.
The Ketchums submitted a proposed point for charge regarding the
liability of a property owner that was based on New Jersey Model Civil Jury
Charge 520F(11). The court declined to give the proposed instruction based
on New Jersey law and, instead, instructed the jury in accordance with
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1
There was a dispute at trial as to what caused Mrs. Ketchum to fall. She
testified that she slipped on a box of candles; the store manager described it
as loose candles. N.T., 8/19/13, at 108-09.
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As an owner of property, an owner of property is required
to use reasonable care in the maintenance and use of its
property and to protect invitees from foreseeable harm. The
owner of a property is also required to inspect the premises and
to discover dangerous conditions. The owner of property is
liable for harm caused to invitees by a condition on his property
if the owner knows or, by using reasonable care, would discover
the condition and should realize that it involves an unreasonable
risk of harm, and the owner should expect that the invitees will
not discover or realize the danger or will fail to protect
themselves against it, and the owner fails to use reasonable care
to protect the invitees against the danger. An owner of property
is liable to invitees for any harm that the owner should have
anticipated, regardless of whether the danger is known or
obvious.
N.T., 8/21/13, at 17.2 The jury returned a unanimous verdict in favor of
Giant.
The Ketchums filed a timely post-trial motion for a new trial pursuant
to Pa.R.C.P. 227.1, alleging that it was error for the trial court to refuse to
instruct the jury in accordance with New Jersey Model Civil Jury Charge
-Trial Relief ¶ 14. Following denial of
their motion, they filed this appeal, renewing their challenge to the jury
instruction:
Whether the Trial Court committed an error of law and/or
abused its discretion when the Trial Court chose to charge the
Ketchums] to prove that [Giant] had notice of the dangerous
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2
18.40. The only difference is that the trial court substituted the word
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[Giant] aware of the danger to shoppers, like [Mrs. Ketchum].
Initially, we note our standard of review of a tr
motion for a new trial.
We will reverse a trial court's decision to deny a motion for a
new trial only if the trial court abused its discretion. We must
review the court's alleged mistake and determine whether the
court erred and, if so, whether the error resulted in prejudice
necessitating a new trial. If the alleged mistake concerned an
error of law, we will scrutinize for legal error. Once we
determine whether an error occurred, we must then determine
whether the trial court abused its discretion in ruling on the
request for a new trial. An abuse of discretion exists when the
trial court has 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.
Potochnick v. Perry, 861 A.2d 277, 281-2 (Pa.Super. 2004) (quoting
Stalsitz v. Allentown Hospital, 814 A.2d 766, 771 (Pa.Super. 2002)).
The Ketchums argue that Pa.SSJI (Civ.) 18.40 was incorrectly given to
the jury because it required them to prove that Giant had actual or
argue that New Jersey Model Civil Jury Charge 520F(11), which does not
require proof of actual or constructive notice in situations where the mode of
operation creates danger, should have been given to the jury. Id. at 9.
dangerous, the burden of proof shifts to the store operator to prove that its
employees acted reasonably. Id. at 12. Thus, they contend that it was
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error for the trial court to deny the proposed point for charge based on New
When jury instructions are challenged on appeal, the principles
governing our review are as follows:
In examining jury instructions, our scope of review is limited to
determining whether the trial court committed a clear abuse of
discretion or error of law controlling the outcome of the case.
Error in a charge is sufficient ground for a new trial if the charge
as a whole is inadequate or not clear or has a tendency to
mislead or confuse rather than clarify a material issue. Error will
be found where the jury was probably [misled] by what the trial
judge charged or where there was an omission in the charge. A
charge will be found adequate unless the issues are not made
clear to the jury or the jury was palpably misled by what the trial
judge said or unless there is an omission in the charge which
amounts to a fundamental error. In reviewing a trial court's
charge to the jury[,] we must look to the charge in its entirety.
Because this is a question of law, this Court's review is plenary.
Passarello v. Grumbine, 87 A.3d 285, 296-297 (Pa. 2014) (quoting
Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70
(Pa. 2006) (citations, quotation marks, and ellipses omitted)).
The Ketchums wisely do not argue that New Jersey law governs
herein.3 Instead, the thrust of their argument appears to be that New
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3
Pennsylvania applies the significant relationship test in determining what
substantive law applies in a tort action. In an action for personal injuries,
the law of the state where the injury occurred generally supplies the
applicable substantive law unless another state has a more significant
relationship to the occurrence and the parties. See Flamer v. N.J. Transit
Bus Operations, 607 A.2d 260, 264 (Pa.Super. 1992). The trial court
properly concluded that Pennsylvania had the most significant contacts since
the injury occurred in Pennsylvania, the Ketchums are Pennsylvania
(Footnote Continued Next Page)
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Jersey law adopted in Wollerman v. Grand Union Stores, Inc., 47 N.J.
426, 221 A.2d 513 (N.J. 1966), and which does not require a plaintiff to
be the law of Pennsylvania. The mode-of-operation rule was incorporated
odel civil charges, specifically, 5.20F(11), which provides
as follows:
5.20F(11) DUTY OWED-CONDITION OF PREMISES
Notice Not Required When Mode of Operation Creates Danger
A proprietor of business premises has the duty to provide a
reasonably safe place for his/her customers. If you find that the
premises were in a hazardous condition, whether caused by
you find that said hazardous condition was likely to result from
business was
conducted, and if you find that defendant failed to take
reasonable measures to prevent the hazardous condition from
arising or failed to take reasonable measures to discover and
correct such hazardous condition, then defendant is liable to
plaintiff. In these circumstances defendant would be liable even
if defendant and his/her employees did not have actual or
constructive knowledge of the particular unsafe condition, which
caused the accident and injury.
New Jersey Model Jury Instruction 5.20F(11). In Nisivoccia v. Glass
Gardens, Inc., 818 A.2d 314, 317 (N.J. 2003), the Supreme Court of New
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(Footnote Continued)
residents, and Giant, a Delaware corporation, is authorized to conduct, and
does conduct business in Pennsylvania. There are no contacts with New
Jersey.
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submitting evi
We find no error herein since Nisivoccia and the proposed jury
plaintiff of the burden of proving actual or constructive notice of the danger.
Under Pennsylvania law, the nature of the duty of a property owner
depends on the relationship between the parties at the time of the injury.
Estate of Swift by Swift v. Northeastern Hosp. of Phila., 690 A.2d 719
(Pa.Super. 1997). A business invitee is owed the highest standard of care
purpose directly or indirectly connected with business dealings with the
possessor Id. at 722-23. Giant admitted that Mrs. Ketchum
was a business invitee on the date of the incident, and that she was owed
the standard of care for a business invitee. See Answer ¶ 5. In Carrender
v. Fitterer, 469 A.2d 120, 123 (Pa. 1983), our Supreme Court reiterated
that the level of care owed to business invitees is derived from § 343 of the
Restatement (Second) of Torts:
A party is subject to liability for physical harm caused to an
invitee only if: he knows of or reasonably should have known of
the condition and the condition involves an unreasonable risk of
harm, he should expect that the invitee will not realize it or will
fail to protect themselves against it, and the party fails to
exercise reasonable care to protect the invitees against the
danger.
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Restatement (Second) of Torts § 343. Additionally, the burden is on the
plaintiff to prove that the premises owner knew or with the exercise of
reasonable care would have known of the harmful condition or was
responsible for creating the harmful condition:
[I]f the harmful transitory condition is traceable to the possessor
or his agent's acts, (that is, a condition created by the possessor
or those under his authority), then the plaintiff need not prove
any notice in order to hold the possessor accountable for the
resulting harm. In a related context, where the condition is one
which the owner knows has frequently recurred, the jury may
properly find that the owner had actual notice of the condition,
thereby obviating additional proof by the invitee that the owner
had constructive notice of it. Where, however, the evidence
indicates that the transitory condition is traceable to persons
other than those for whom the owner is, strictly speaking,
ordinarily accountable, the jury may not consider the owner's
ultimate liability in the absence of other evidence which tends to
prove that the owner had actual notice of the condition or that
the condition existed for such a length of time that in the
exercise of reasonable care the owner should have known of it.
Myers v. Penn Traffic Co., 606 A.2d 926, 929 (Pa.Super. 1992) (quoting
Moultrey v. Great Atlantic & Pacific Tea Co., 422 A.2d 593, 596
(Pa.Super. 1980)).
regularly inspected the area where Mrs. Ketchum fell, and on the day in
question, it was inspected about thirteen minutes before the incident. N.T.,
8/19/13, at 47. There was no evidence adduced that Giant or its employees
created the harmful condition, i.e., put the candles on the floor, or that they
knew of the condition. Thus, the Ketchums could not prevail unless they
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proved that Giant or its employees, with the exercise of reasonable care,
should have known of the condition. The jury did not so find.
We note that the Pennsylvania Suggested Jury Instructions have not
been adopted as binding law by our Supreme Court. Jeter v. Owens-
Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa.Super. 1998). However,
the jury instruction given by the trial court in this case, which was modeled
on the standard instruction, correctly stated Pennsylvania law regarding the
law applicable in premises liability negligence cases involving harm to a
business invitee. Furthermore, beyond the legal content, we do not find
Pa.SSJI (Civ.) 18.40 to be unclear or confusing to a jury.
Given that the court properly instructed the jury in accordance with
Pennsylvania law, we find no error.
Judgment affirmed.
Judge Ott joins the Memorandum.
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
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Ketchum, L. v. Giant Food Stores
Combined Opinion