J-A03021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOANN BABBISH IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
PIXIE PARADISE CHILD CARE CENTER
D/B/A PIXIE PARADISE EARLY
LEARNING CENTER AND DEBORAH
RIZZO
Appellants No. 515 MDA 2019
Appeal from the Judgment Entered March 21, 2019
In the Court of Common Pleas of Luzerne County
Civil Division at No: 2016-00518
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY STABILE, J.: FILED:MAY 11, 2020
Appellants, Pixie Paradise Child Care Center (“Child Care Center”) and
Deborah Rizzo (“Rizzo”) (collectively “Appellants”), appeal from the judgment
entered on March 21, 2019 in the Court of Common Pleas of Luzerne County
after a jury returned an $800,000 verdict in this slip and fall case in favor of
Appellee, Joann Babbish (“Babbish”). The Child Care Center asserts trial court
error for failure to deliver various jury instructions, including assumption of
risk and choice of ways instructions, and for delegating to the jury a question
of law regarding a duty owed to Babbish by the Child Care Center. Following
review, we affirm.
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Our review of the record discloses that Babbish and her husband arrived
at the Child Care Center at approximately 3 p.m. on February 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 February 4, Rizzo cleared parts of the paved area in front of the building.
She also cleared 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.” Trial Court Opinion, 7/1/19, at 2 (some
capitalization omitted).1
Babbish got out of the car and stepped over accumulations of snow
deposited by Rizzo on an unshoveled part of the paved surface. She
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.
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1 The “paved surface” was an area that measured approximately seven and a
half feet in width and ran the length of the building from the building itself to
the street. There was no grass or other landscaping between the building and
the street. Rizzo shoveled approximately one-half of the seven and a half foot
wide paved surface, as well as the paths from the entrance to the street and
from the side exits of the building.
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Babbish filed suit against Appellants alleging negligence. Following trial,
a jury awarded her $800,000, subject to a finding of 20% comparative
negligence on her part. The trial court molded the verdict to an award of
$640,000. Appellants filed motions seeking remittitur, a new trial, and
judgment notwithstanding the verdict. Following argument, the court denied
all three motions by order entered on February 28, 2019. On March 20, 2019,
the trial court added delay damages of $56,473.42 to the verdict, which was
reduced to judgment on March 21, 2019. This timely appeal followed. Both
Appellants and the trial court complied with Pa.R.A.P. 1925.
Appellants ask us to consider four issues, which we have reordered for
ease of discussion as follows:
1. Did the trial court commit prejudicial error and/or abuse its
discretion in refusing to instruct the jury on the doctrine of
“Assumption of Risk” or even consider the doctrine’s
applicability to the facts of the case?
2. Did the trial court err when it refused to instruct the jury as to
the law concerning the “Choice of Ways” doctrine as requested
by [Appellants] in their Proposed Point for Charge #24?
3. Did the trial court err in failing to instruct the jury as to
[Appellants’] requested Point for Charge #20 as well as
Supplemental Points for Charge #2, #3, #4, #5, #6 and #7,
when such Points would have clarified [Appellants’] and
[Babbish’s] responsibilities regarding ice and snow?
4. Where [Rizzo] cleared a path from snow in front of her property
for the entire length of the building and further cleared three
entrances from the street to the sidewalk, did the trial court err
in instructing the jury to determine whether [Rizzo] had a duty
to clear the entire area alongside the building from snow?
Appellants’ Brief at 5.
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Each of Appellants’ issues asserts error or abuse of discretion with
respect to jury instructions. As such,
[o]ur standard of review . . . is limited to determining whether the
trial court committed a clear abuse of discretion or error of law
which controlled the outcome of the case. Error in a charge occurs
when the charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a material
issue. Conversely, a jury instruction will be upheld if it accurately
reflects the law and is sufficient to guide the jury in its
deliberations.
The proper test is not whether certain portions or isolated excerpts
taken out of context appear erroneous. We look to the charge in
its entirety, against the background of the evidence in the
particular case, to determine whether or not error was committed
and whether that error was prejudicial to the complaining party.
In other words, there is no right to have any particular form of
instruction given; it is enough that the charge clearly and
accurately explains the relevant law.
Pledger by Pledger v. Jannsen Pharmaceuticals, Inc., 198 A.3d 1126,
1146 (Pa. Super. 2018) (quoting James v. Albert Einstein Med. Ctr., 170
A.3d 1156, 1163-64 (Pa. Super. 2017) (additional citation omitted)).
As reflected in the above excerpt, we are to consider the court’s charge
in its entirety. For context, we shall outline each of Appellants’ jury instruction
issues, beginning with the specific jury instructions addressed in their first
through third issues.
Appellants first assert the trial court abused its discretion by refusing to
deliver an assumption of risk instruction, but acknowledge there is no longer
a suggested jury instruction for the doctrine. While assumption of the risk
has not been formally abolished by our Supreme Court, this Court has
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acknowledged that it has fallen into disfavor, “as evidenced by our [S]upreme
[C]ourt’s two . . . attempts to abolish or limit it.” Staub v. Toy Factory,
Inc., 749 A.2d 522, 528 (Pa. Super. 2000) (en banc) (citing Howell v. Clyde,
620 A.2d 1107 (Pa. 1993) (plurality), and Rutter v. Northeastern Beaver
County School District, 437 A.2d 1198 (Pa. 1981) (plurality)). Moreover,
as our Supreme Court observed in Howell, “[T]he complexity of analysis in
assumption of risk cases makes it extremely difficult to instruct juries.”
Howell, 620 A.2d at 1108 (citing Rutter, supra).
Here, in rejecting Appellants’ request for an assumption of risk charge,
the trial court explained, “I’ve re-read assumption of risk. And I think it’s—
noting your objection, I think it’s way too confusing. I think comparative
negligence takes care of all you need in that. I’ll note your objection, that
you’ve asked for that charge. But I’m just going to keep comparative
negligence in.” Notes of Testimony, Trial, 10/25/18, ay 271-72. Appellants’
counsel informed the court that his closing argument included reference to
assumption of risk. Id. at 272.2 The court replied,
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2 Appellants’ counsel argued assumption of risk to the jury in his closing,
noting:
The doctrine of assumption of the risk or what we call the common
assumption of the risk is a common sense approach to how people
behave. And this concept states that where a person confronts a
known risk and voluntarily assumes that risk, they cannot recover
it they are injured by that risk, that known risk.
Notes of Testimony, Trial, 10/25/18, at 297.
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You can—I think it’s correct law. I just don’t think that I’ll charge
on it. . . . Whether somebody should or should not—knows
whether or not they should walk through snow and that that’s an
issue, it’s fair game. But I agree with [Appellee’s counsel] that I
think that’s confusing, to put in the assumption of risk. And really,
I think we agree that comparative negligence takes case of it,
correct?
Id. Appellants’ counsel responded, “We, of course, would like to have both.”
Id.
In its charge, the trial court explained negligence principles and
instructed that the jury must decide whether Rizzo was negligent. Id. at 345.
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. Id. 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%; 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. Id. at 345-46.
Appellants next argue the trial court erred by refusing to charge the jury
on choice of ways. In Mirabel v. Morales, 57 A.3d 144 (Pa. Super. 2012),
this Court explained:
The “choice of ways” doctrine still exists in Pennsylvania despite
the substitution of comparative negligence for contributory
negligence. See Updyke v. BP Oil Co., 717 A.2d 546, 552 (Pa.
Super. 1998). This doctrine states: “[w]here a person, having a
choice of two ways, one of which is perfectly safe, and the other
of which is subject to risks and dangers, voluntarily chooses the
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latter and is injured, he is guilty of contributory negligence and
cannot recover.” Downing v. Shaffer, 246 Pa. Super. 512, 371
A.2d 953, 956 (1977) (citation omitted). This doctrine does not
require anybody to follow a particular route, however. . . .
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 of
the danger.” [Downing, 371 A.2d at 956] (citation omitted). The
“choice of ways” doctrine has a narrow application and it should
only be applied in “the clearest case.” Oswald [v. Stewart, 448
A.2d 1, 2 (Pa. Super. 1982)]. 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.” O'Brien v. Martin, 432 Pa. Super. 323, 638 A.2d 247,
249–50 (1994).
Id. at 153-54.
Babbish’s counsel also addressed choice of ways in his closing argument,
indicating that Babbish said she could not get back to her car using a cleared
path from the entrance to the street because a car was parked in that spot.
Notes of Testimony, Trial, 10/25/18, at 300-01. Counsel reminded the jurors
of the conflicting testimony offered by Babbish and her husband as to whether
there was a car in that spot from the time they arrived at the Child Care Center
until Babbish fell. Id. at 298-300. 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.” Id. at 301.
In their third issue, Appellants claim trial court error for failure to
instruct that a possessor of land is not an insurer of safety (Proposed Point for
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Charge #20) and that property owner owes duties to pedestrians to maintain
sidewalks and to remove snow (Proposed Points for Charge #2-#7). None of
the proposed points for charge are based on Pennsylvania Suggested Standard
Jury Instructions, although most include citations to case law.3
In the trial court’s charge, the judge instructed:
The law in Pennsylvania is that one in possession of land is
required to maintain the abutting public sidewalks in a reasonably
safe condition to prevent or eliminate any hazardous or unsafe
condition that upon all the circumstances involved would be an
unreasonable risk of harm to pedestrians properly using walks.
Id. at 347.
Appellant’s fourth allegation of error is based on an assertion that the
trial court asked the jury to determine whether Rizzo owed Babbish “a duty to
clear the entire front of the building from the edge of the building to the
street.” Appellant’s Brief at 39. However, the court’s charge did not assign
that task to the jury. Rather, the court stated, “Ladies and gentlemen, in this
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3 We note that “[t]he Suggested Standard Jury Instructions themselves are
not binding and do not alter the discretion afforded trial judges in crafting jury
instructions; rather, ‘[a]s their title suggests, the instructions are guides
only.’” Commonwealth v. Simpson, 66 A.3d 253, 274 n. 24 (Pa. 2013)
(quoting Butler v. Kiwi, 604 A.2d 270, 273 (Pa. Super. 1992)). As we
explained in Butler, the instructions have not been adopted by our Supreme
Court. Id. at 273. “The court is free to formulate and express its charge as
it sees fit, provided the charge fairly and accurately apprises the jury of the
relevant law and guides the jury in its deliberations.” Id.
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case, the parties dispute what constitutes a sidewalk. Was the sidewalk the
area from the building to the street or something less than that[?] It will be
up to you, the jury, to determine what area constitutes the sidewalk in this
case.” Id. at 346-47. The court went on to explain, as set forth above, the
possessor of land’s requirement to maintain sidewalks in a reasonably safe
condition, preventing or eliminating unsafe conditions that create an
unreasonable risk of harm to pedestrians. Id. at 347.
Reviewing the charge as a whole, against the background of the
evidence admitted in this case, we find no clear abuse of discretion or error of
law controlling the outcome of the case. The court properly charged the jury
on comparative negligence in keeping with the evidence presented rather than
deliver a confusing and disfavored assumption of the risk charge. As is
recognized in the Note to the Suggested Standard Jury Instructions, there is
no standard instruction on assumption of risk “because assumption of the risk
is a question for the court to decide upon a nonsuit motion and not a matter
for jury determination in negligence actions.” Note, Pa. SSJI 13.220.
Importantly, the jury determined that Babbish was comparatively negligent
and assigned 20% of the negligence to her.
Also in keeping with the evidence presented, the trial court declined to
deliver a choice of ways instructions. The evidence did not demonstrate that
availability of an alternative perfectly safe path. Although there was
conflicting testimony, it was for the jury to determine whether there was, in
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fact, another car in the parking spot at the end of the path Rizzo shoveled
from the entrance of the Child Care Center to Fifth Street. If that path was
not available to Babbish, the alternative was to walk into the slushy street
where vehicles were traveling. When asked if she could have gone around
into the street with her grandson, Babbish replied, “No, I wouldn’t take him
out into the street.” Notes of Testimony, 10/25/18, at 250.
Regarding the proposed points for charge relating to possessors of land,
sidewalks and snow removal, a review of the court’s charge reveals that the
court properly charged the jury on the duties of a property owner to maintain
sidewalks in a reasonable condition. There were no issues relating to when
snow was removed, nor were there any issues relating to accumulations of
snow and ice. This 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. It was 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. The instructions provided by the
trial court put those questions squarely before the jury in their consideration
of whether Rizzo acted reasonably.
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
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surface. Rather, the court explained that “the parties dispute what constitutes
a sidewalk.” Id. at 346. The jury was charged with making a factual
determination as to “what area constitutes the sidewalk in this case.” Id. at
346-37. 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.” Id. at 347.
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. See Pledger,
supra, 198 A.3d at 1146. Finding no clear abuse of discretion or error of law
controlling the outcome of the case, we shall not disturb the jury’s verdict.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/11/2020
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