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HomeMy WebLinkAbout96-05225 >-.. - - \ T~ .,;-- ':~ 'V ~ II) ... c;:l f:; f .. :"5 M ,,;2 :c O:z ,~ a. .)~ C) .~:(cn N i~~ "-~-' n. i!: \7l ~ ~ ..0 a 0' ~~~~ ~ "'" ~' ~~~ ~ ~ .. I"t'\ .~~ ~\~~ ~ .......... It w z w - . a :> t - .." .....1 .. 0 f..- " .- i Z >jia ~ : LI;:: w.~ - ... ~ e Q Z < :t " I . . . . 4. At all times material hereto Defendant, Forest Meadows was the record owner of the real property known as "Forest Meadows Condominiums" located at 117 Strayer Drive, Carlisle, Cumberland County, Pennsylvania, and was in exclusive management and control of said Premises. 5. At all times material hereto, Plaintiff, Dorothy M. Connolly, was a tenant/lessee and or invitee of Forest Meadows Condominiums, and resided at 106 Strayer Drive, Carlisle, Cumberland County, Pennsylvania 17013. 6. On or about October 18, 1994, the Defendant, Geistwhite Landscaping, Inc., was performing landscaping services at Forest Meadows which included aerating the grass in front of Plaintiff's residence. 7. On or about October 18, 1994, at approximately 3:00 p.m., Plaintiff, Dorothy M. Connolly, was walking along the sidewalk in front of her residence when. suddenly and without warning, she slipped on a mud plug that was strewn across the sidewalk and fell harshly to the ground, thereby sustaining serious personal injuries as more fully set forth hereinaher. 8. The Defendant. Forest Meadows, had actual or constructive notice of the mud plugs strewn across the sidewalks. COUNT I DOROTHY M. CONNO,,"V v. ~REST tt'~DOWS CONDOtt'tNt\IM AS~tAnp,. 9. Plaintiff. Dorothy M. Connolly, incorporates herein by referenee paragraphs 1 through 8 above .. fully as jf the same were set forth .t leng1h. 10. At all times meter i.' to this cause of action. Defendant, F<<ast M.adowt. was 2 the exclusive owner, possessor, and manager of, and had exclusive control over the housing complex located at 117 Strayer Drive, Cumberland County, Pennsylvania. 11. The occurrence of this incident and the severe personal injuries resulting therefrom was the direct and proximate result of the negligence of the Defendant, generally and more speCifically as set forth below: lal In failing to protect its tenants and in particular, Plaintiff, Dorothy M. Connolly, from the dangerous condition existing on the sidewalk area as aforesaid; Ibl In failing to warn of the latent danger it knew or should have known existed on the sidewalk areas at the time Plaintiff, Dorothy M. Connolly, its tenant, was lawfully upon said premises; Icl In failing to make a reasonable inspection of the sidewalk areas, and in particular, the area where the offending mud plugs were located in order to discover its dangerous condition; Idl In failing to discover the dangerous condition which existed on sidewalk areas to the detriment of its tenant. and in particular. Plaintiff, Dorothy M. Connolly; leI In failing to take reasonable precautions to protect its tenant, and in perticular, Plaintiff, Dorothy M. Connolly, from the foreseeable danger existing on the sidewalk area; If) In failing to properly maintain the sidewalks and keep them free and clear of mud plugs so that its tenants, and in particular, Dorothy M. Connolly, could walk along the sidewalk areas with assured safety; Igl In failing to properly maintain the sidewalks in a safe condition for its tenants, end in particular, the Plaintiff, Dorothy M. Connolly; Ihl In atIowing the sidew8lk areas to remain in a dangerous condition when it knew its tenants would continue to use the sidewalk areas to exit and enter the premises; and. iii In faihng to remove the mud plugs from the sidewalk. when the Defendant knew Of should have known of it. or to take precautions to prevent mtury to the Aalntiff and to other pettOns on the premi.... 3 Iii In failing to properly supervise the activities of the entity, Geistwhite Landscaping, which it engaged and subcontracted to perform the lawn mmaintenance activities for the condominium complex. 12. As the direct and proximate result of the negligence of the Defendant, Plaintiff, Dorothy M. Connolly, has sustained serious personal injuries, including, but not limited to, a shattered right shoulder and fractured upper humerious bone which required surgery and severe pain in her left shoulder. 13. As a further result of the negligence of the Defendant, Plaintiff, Dorothy M. Connolly, has suffered humiliation, embarrassment, and as a result thereof, she has suffered, and will continue to suffer in the future, pain and agony to her great detriment and loss. 14. As a result of the negligence of the Defendant. Plaintiff, Dorothy M. Connolly, has been and probably will in the future be hindered from attending to her usual occupation and daily duties, to her great detriment and financial loss. 15. As a result of the negligence of the Defendant, Plaintiff, Dorothy M. Connony, has undergone great physical pain, discomfort and mental anguish, and she will continue to endure the same for an indefinite period of time in the future, to her great physical. emotional and financial detriment and loss. 16. Plaintiff, Dorothy M. Connolly, believes end therefOfe ....ers that her injuries are permanent in nature. 17 As a result of the n89IIgence of the Defendant. Plaintiff, Dorothy M. Connolly, has been competed. in 0<<Mt to effect a cure 'Of her~, to ...,.nd ~ .. Igl In failing to properly maintain the sidewalks and keep them free and clear of mud plugs so that Plaintiff, Dorothy M. Connolly, could walk along the sidewalk areas with assured safety; (hI In failing to properly maintain the sidewalks in a safe condition for Plaintiff, Dorothy M. Connolly; IiI In allowing the sidewalk areas to remain in a dangerous condition when it knew tenants would continue to use the sidewalk areas to exit and enter the premises; and, (jl In failing to remove the mud plugs from the sidewalk, when the Defendant knew or should have known of it, or to take precautions to prevent injury to the Plaintiff and to other persons on the premises. 20. As the direct and proximate result of the negligence of the Defendant. Plaintiff. Dorothy M. Connolly, has sustained serious personal injuries, including, but not limited to, a shattered right shoulder and fractured upper humerous bone which required surgery and severe pain in her left shoulder. 21. As a further result of the negligence of the Defendant. Plaintiff, Dorothy M. Connolly, has suffered humiliation. embarrassment, and as a result thereof, she has suffered. and will continue to suffer in the future. pain and agony to her great detriment and loss. 22. As a resuh of the negligence of the Defendant. Plaintiff, Dorothy M. Connolly, has been and probably will in the future be hindered from attending to her usual oec~tion and daily duties. to her gr.at detriment and finanelalloss. 23. As a result of the negltgenee of the Defendant. Plaintiff, OOfothy M. Connely, has undergone great physical pain. ch'.:omfOft arid mental 8fl9Uish, and she will 6 . '^ . ,. DOROTHY M. CONNOLLY, Plaintiff 12 IN THE COURT OF COMMON PLEAS OF CUMBLERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-5225 CIVIL TERM v. FOREST MEADOWS CONDOMINIUM ASSOCIATION and GEISTWHITE LANDSCAPING, INC. Defendants JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE A pretrial conference was held before the Honorable George E. Hoffer, P.J., on Wednesday, June 17, 1998. In this slip-and-fall case, W. Scott Henning, Esquire, is representing the Plaintiff; Rolf E. Kroll, Esquire, ie representing Defendant Forest Meadows Condominium; and C. Kent Price, Esquire, is representing Defendant Geistwhite Landscaping, Inc. This is a two-day trial by jury, and Plaintiff will have six challenges, and Defendants will have four 'I _ challenges each. Plaintiff is a lady in her mid-seventies who - lives at the condominium in question. She claims that she fell on dirt plugs on the sidewalk that were negligently left there by defendant landecaping company who was doing core aeration work on the lawn; this procedure uses a machine to pull the plug. f~ the ground. The Plaintiff claims she fell on one of the plugs, causil19 a serious fracture of the shoulder and permanent injurie.. All attorney. pre.ent expre.. no problem with the wi tne.. li.t pre..nted by each other attorney. Nr. Price indicate. that he MUst take hi. client's deposition by Friday, June ~'th, .inee Mr. Price will be going on vacation; other than . fI(' 7('f8. IIOLI' J:. JalDLL, J:SQI1IIlJ: 'a. Supr... Court I.D. Ko. 47243 IlJ:Y1I0LDS , IIAVU 101 '1... Str_t 'oat Office ao. 832 Hazr1abuz9, Pennaylvania 17101-0832 'l'elepho...: raa: [717J 236-3200 [7171 236-1113 Attorney for Defendant: rollJ:S'l' NJ:ADOIf COIIDONIKIlIIC USOCUoUClIl DOROTHY H. CONNOLLY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . . v. : NO. 96-5225 CIVIL TERM . . FOREST MEADOW CONDOMINIUM ASSOCIATION AND GEISTWHITE LANDSCAPING, INC., Defendants . . . . .u-ftlAL CODDDC. I(-OIlAIIDUII o. DDWlma... ~...~ 1I...v. N\1II'VWTlIItUII .....QeI...IOM I. State~nt ot Facts as to Liability This case arises fro. Plaintiff's slip and fall on a piece of dirt. The dirt was on the sidewalk of the Forest Meadow Condoainiua Association's property. Forest Meadow believes that the evidence will ahow that the dirt ca.. froa an aeration plug that was left on the aidewalk following the aeration of the lawn adjacent to the sidewalk where Ms. Connolly fell. Althouqh Plaintiff alleqe. in her Co.plaint that Foreat Meadow w.s neqligent in allowinq the dirt plug. to re..in on the sidewalk, nothinq in the evidence produced durinq the cUaeovery placea Forest Meadow on notice of the existence of the dirt plugs on the aidewalk prior to Plaintiff'. fall. Moreover. a leqitiaate i..ue , at trial exists as to whether a dirt plug on a sidewalk constitutes a dangerous condition. II. S~AtAm~n~ ~t thA Facts as to OamAq8s ~ Plaintiff's Pretrial Conference Memorandum. III. stAtement or IRAues As noted above, significant issue exists as to whether a dirt plug constitutes a dangerous condition and aa to whether Forest Meadow had notice of the presence of the dirt on the sidewalk prior to Plaintiff's fall. Moreover, a significant iaaue exists .a to whether CEISTWHITE acted reasonably in the perforaance of its aeration of the Condominium Association property. Finally, there is a significant issue as to whether Forest Meadow was unreasonable in retaining Ceistwhite. IV. Sn....ry of ~.l I..u.. In the absence of testiaony deaonstratinq that Fore.t Meadow had any notice of any condition on the sidewalk, Defendants Bubait that Plaintiff's case aqainst roreat Meadow Bust tail as . satter of law. v. Liat of Vltna4.es roteat Neadov reserve. the riqbt to calli (1) Jobert Maxv.ll and/or Cb&rle. Hoqan, PTealdent of 'oreat ....dow COneS_inlWl Association: 2 - .""........... - (2) Donald S. Geistwhite, Jr. ; (3) Benjamin B. James; (4) Dorothy Connolly, as on cross VI. List:. o~ hhibitR (1) Photographs of the accident scene; (2) Contract between Forest Meadow and Oeistwhite. VII. status of S.~~l~mAnt: HeaDtia~lonA Fore.t Meadow has not aade a .ettlement offer in this case. DATE I By: 101 Pine Stnet Poat Office lox 932 Harrll11Nr9. PA 11101-0932 (117) 236-]200 ) CERTIPICATE OP SERVICE I HEREBY CERTIFY that I have served a true and correct copy of the foregoing document upon all counsel record this ~ay of ~~ , the same in the United states First Class Mail, and parties of 1995, by placing postage prepaid, at HarriSburg, Pennsylvania, addressed as follows: W. SCott Henning, Esquire Handler and Wiener 319 Market street Post Office Box 1177 Harrisburq, PA 17108 C. Kent Price, Esquire 'l'hoaa., Thoaas . Hafer 30S North Front street Poat Office Box 999 Harriaburq, PA 17101 ~L.~ DOROTHY M. CONNOLLY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 96.5225 CIVIL TERM Plaintiff v. FOREST MEADOW CONDOMINIUM ASSOCIATION AND GEISTWHITE LANDSCAPING, INC. CIVIL ACTION. LAW Defendants CERTIFICATE OF SERVICE On the 11 th day of June, 1998, I hereby certify that a true and correct copy of Plaintiff's Pre-Trial Conference Memorandum was served upon the foUowing by depositing in the U.S. Mail: Court Administrator Cumbertand County Courthouse 1 Courthouse Square Carlisle. PA 17013-3387 Date: 6/11198 WIENER By W. Scott Henning. E 319 Market Str", P.O. Box 1177 Harrisburg. PA (717) 238-2 ATTORNEY I , I ,- --, DOROTHY M. CONNOLLY. Plaintiff IN THE COURT OF COMMON PLEAS CUM8ERLAND COUNTY, PENNSYLVANIA NO. 96-5225 CIVIL TERM v. FOREST MEADOW CONDOMINIUM ASSOCIA TION AND GEISTWHITE LANDSCAPING, INC. CIVIL ACTION - LAW Defendants CERTIFICA TE OF SERVICE On the 11 th day of June, 1998, I hereby certify that a true and correct copy of Plaintiff's Pre-Trial Conference Memorandum was served upon the fallowing by depositing in the U.S. Mail: Rolf E. Kroft, Esquire Reynolds & Havas 101 Pine Street POBox 932 Harrisburg PA 17108-0932 Date: 8/11/98 By W.Sco 319 Market St P.O. Box 11 Harrlsbutg...ftA 17108 (717) 23'2000 , A TTORN'f FOR PlAIHTlFf , \0-\\ ~ ~ JUN 1 5 1998 . .... -.-----. ~ . DOROTHY M. CONNOLLY. : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CNlL ACTION - LAW FOREST MEADOWS CONDOMINIUM : NO. 96-5225 ASSOCIATION AND GEISlWHITE LANDSCAPING INC., ~ : JURYTR~DE~DED ~GElmntlTE~DSCAP~ I. Statement cA Facts as \9 !.iabj!i!Y The Plaintiff alleges that she sUfered va10us irjuies, inc:luding 8 fract1.nd shoI dder. when she slipped and fell on 8 dirt plug that was on 8 c::onaete side.... which provided 8CCI8SS to her residellCe at the Forest Me atlow Condominiums. The dirt plug was appale.'tly the ~ cA core aeratioI. wortt that had been perfolllled 1hat day by Defendant Geistwhite l8nd~ping, Inc. to 811 the ywds in the condominiun c:ornntu'1ity. Wlen the PIariff end . friend exited her house IWIier that day. \hey both commented abcU the p.sence cA dirt plugs on Ihe side~'lIIk. Wlen \hey retI.med Ialer in the day, the Pl..;.ltift' mede . mer ll8t note to ......If that she WQ.IId have 10 watch \1IIhel. she was \diking beC*.. cA dirt pkIgI on the lid, _II\. In fact. Ihe ClbHrwd the dirt plIg she II. gecIy ~,:4d on end blb,.oed she WQ.IId be .. to step over it Hr....... she ~.1tIy ,~ on it wiIh IN Me! cA her shoe Donald O'let~. Met~ the an ....... beb. the .oc_t. ""'IoedIIlO hls ..ac:tcll on.'" bid...., M I.~.td. QII pc.~lftd ~ .fl.. .nctl M UItd to blow dirt pk.JgI off the WI . II.. in the Qw,..... The dirt plugs were approximately 1 1/2 inches long. The controlling issue is whether the presence of a dirt plug on the sidewalk constitutes a dangerous condition. II. Statement of Facts as to Damaoes Refer to Plaintiffs Pre-Trial Memorandum. III. Statement Qf.lssues The primary issues ere whether a dirt plug on a sidewalk constitutes a dangerous condition 81d. if so. whether the Plaintiff was comparatively negligent. W. Witnesses 00naId Geistwhite Benjamin B. James Dorothy C0nn0lIy, as on aoss v. ~ Phot~~ 01 the aa:ideI It site VI. Status of Settlement Neaoti8tions Defendant Geistwhite L,"dSl.ping, Inc. has made no I8ttIetnent oIfef'. THOMAS. THOMAS & HAFER. LLP C-~/~~ C. Kent Price. EsqUnt 305 North Front Street P. O. Box 999 Harrisburg. PA 17108 (717)255-7632 to No 06776 ATTORNEYS FOR DEFENDANT GElSlWHlTE tANOSCAPING. INC. wet..., tllll-I': 11"( 1:.[": f\."ll1l 1;:, j. I ". HANDLER &W1,~Nr~~,,, , II. ! .' " II I...". ~ , ,.- ',. :111 \1.1:1,11 ":11' I I'll i:." ' :. . H. II .', 1'\ i.. 'I .I~' '1_11: I ' " " ,. I ~ '.... I. _,_I ,t', istJt'!!I).ltjt, JUliO:' 1/. 1998 I he Honorllbll:! George I tolll:!! Cumbl:!rland Counly Courthouse One Cnllrthnll",n SrJlIHr.. Carlisle. PA 17013 VIA FAX JL ~QJ1T!9.lIv v. Fo.rcst lan<:!$!' J\/l!.!.!!..L...Ir>" CumberldnJ C:o\;nty C.I'. N", 96 5:0!> De,,! Judge tJllOl1 lultht'r r~flcctlunl.Jf 11'..' h~.L:"";'Il" :",,-, Pl'- I r..;~ (""1..,..1":,( .rq.lI(1"lq Mr. Kroll's fl'!Quesll:!U Sr'llulatlllll. I "",~h 10 IT ~.... .1' L1' h-Illh'" ul IIlV W1>'!tu' , "" lhe requested Sttpullltion I do not I",,,,,, ., ;NII'Ii'11 ~tlp\lldt,l1"111 lIenT ot InY lor tllVl'OUtJ'1 revlI)w. however, I WIS" TO cl<lllly Ih,)l , .1f1l "\1111""1 10 st.puhltl:! tlldl Oon"'d Gci:;TWh'lu!Gllictwtllltt Landsc~p"".J lnr ,< nol c4 W.';' 'vP"'. ".41,.....11 """plnv.... of Foresl Meadow Condorrlin:UII1 As!'oCIJtJorl MI I(rol u:lt'rflll.:etl It... IMIlI indepllntlenl ccntfjll.:lor ,n hiS senl..ll(f when h~ f",'\I~',t"rlllle :;trpul"l;tll' flll.I'J.:dt'flq Ihm GClstwh'le l8nds~ap,ng W;t. IllJI .111 ('''''n'''y~t' ,,' Ill.. A~~..Klall()rl Il h... \~ Ulilllll Ihe term "Independent Cuntr:lcwr" <l~ .. It''n.1Ilt''lIll'''''. , .)11' net 111 ~ I'v\O'trun ro specil,colly &!ipubIA lhlll t""'''' mN'I 0'" ,I l~" 1''101 . "'",.., I'll :m ,nl1<'r..t\tI..nt contr8C!Of 115 legallv dl!"tl1cd Il>t!:,....€' tndllh~f.. .lrr P""",""I ,..~\;~'> It!g:'llfl'll9 the (:ontlol. <hrectiofl andlor li~ro.1Sti':rl'" G....,tw-,'.I'., .~<:l,,"t ,"~ hy II)... A!tSlll'llItrun, t'l"l rcrTlitln viable Ilili\h!S fnr the llldl Ttw A:".l), It"";" .');,,,., t"t! ..111'0"\0/\ ."e3 ....hlrl\' Iflt' Pla,ntltt /,,11"00 thtv V>lerr r(!S~tl.llr' ok II' tho i.llli"C3..ill'J d,"1 <:lite millnlenarll,;lt \)1 tll<J$e comtllol'\ nrella. If the., d'v.x h' :1..1"9-'1.. ..1'11')'1'''' I,v.I'". 1(. .'I1l"'h~r "",tv. " landSCaping CIJI'tIOClOf the i$!<I~ ';H!I 't"t1.11"~ ""'''lith,!,' :1'>1' ASSU;;lll!IWI'" '''~pe1'l5tble for 1"- olCtIV.tl\~S uf Gelstwttill'. that 1>, thp'cl''''l~'l:'''' "".I\~t~{'d ,..,th fHi,it'I.t!n.ng ttw common ilff''''' 12. DOROTHY M. CONNOLLY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V FOREST MEADOW CONDOMINIUM : NO. 96-5225 CIVIL TERM ASSOCIATION AND GEISlWHlTE LANDSCAPING, INC. ORDER OF C~RI AND NOW, April 28, 1998. by agreement of counsel, the above-captloned matter is hereby continued from the May 18.1998 trial term. Counsel is directed to reflat the case when ready. By the Court. W. Scott HennIng, Esq. For the Pllli"tlfr Rolf E. Kroll, Esq. FOf Forest Mudow \,.\(\,\....~,.., , .:l "'~.," \.. ;L ~- )'\l-'I'! C Kent Price. Esq, For OtlStwhlte larldV~ Court Adn~~ bb ... c.. >- Ii; C :-~; ." ,..~~ :~ ,', oJ L:l" (;~ r::' -- I. e V . . f;- i:, , ~! ~ ,.... ,. ... .~ ..-I ,. -. .- .',. - L.. Ce) ;} C- 0'1 - \ SHERIff'S RETURN - REGULAR CAS~ NU: 1~?b-U522~ p CUMMONW>;^L Tll UF r'ENN~Y LV AN lA: CUUNTY UF CUMHFRLAND CUNNLJl<LY [lUrWrHY M_____ VS. .'UIlE::;T M>:AIII)W" (:\.11;1) A~;::;li >:T AI... rlMUlIlY fl';lT:': , 'ihE-riff or O<i>puty Sher1f1 'J1 CUMBLULAN~ County. Penn&ylvan1a. who being duly sworn according to law, aays, the wlth1n ~l,JtlPl.,A!NT UP"" 'j>;ISrwltrn: LANO,;CAPlNG INe _e._..___.__."_..~,.____~ was served th€' --_.,----------" dpt~ndant, at __.!OlJ;0-0 HUUR~-,. on tnif' ;~~~'t day 01 ~~r~e~e..r 1 ~~~ at __.1/:1 '-'IReL!:: rrnv. ---------- CAkb.L:.LE. FA :701:' ________________._______, (U\'lI:lEP.LANP__ COllnty. FE'nneylvan1'l. hy hanllr') to !;lfU~!L_-'O!if,Z.,,~R&l!.._k!tltL~Nt'___ ~b1.~L IN CHAHit:. -_._---_._-----,~~...__.._~~...~..- "'--.--. ._..,,-_.. --'-,....__....-_.._...,,_.__..........'-~ a tru<i' and attested cO" of '_ h"?' ~ C~Jr!t~~1_+ f~I_ --~---"-_. -_.-._-~-..__._~-,-..._,....-,...__.~._..- - ----~_.~ tc.g€"tr.E>I wltt-. tuJIJ.\.;'._w_.. '-.--.-----.- ."______ ."v__. _.~ '.", "~'_'______._.______...._,">_~.. an1 at ~h. $8~e tl~e dIrectIng ~l~ attentlon !J th@ cant.n~a th.r.~f. ~h€rlt!.2 CQsts: , an~.~r~: .. f'~J. _",<~..P'.~ ~~h-:n~s.qa-'l\! rr:4~.-' 71.efrrr-n.-----.~-_." ~-,,-~)'..-~t:f-.~ lr;\~ ~i?r ',; 1 C~ A f J 1 ,j 11 .".1 t -~. UTI: h;J; r go;. r-,.00 ~t: 6~ ..:: ~ ilt\.~ nr:"-:; HAkC'Lf.iii ASi' \lIDir" B "'r"::-'rF~{ _..~_. t' r~~~;.r ~ -.w. f'".", '.-.. -,.,"'-. ;,.-~L,.-,,~.~ \--. 'T "~_. ......~ - . v . ..,. " :il<',..",,-,., '1 .... "( ~~ .,.. 4'. ... <;. t 11.., /6-.#( H~_ d -(t-( I d It. , '-(<'l.JJ,,,+,t~"1 r~(J "v ROLF E. KROLL PA Ano,ney 1.0. No. 47243 REYNOLDS" HAVAS A Pro...l:ioNII Corpor.tion 101 Pine SI,ee, P.II Olfice Bo. 832 Horriobu,g. Penneylve..e 17108-0.32 1717l 235-3200 An.....y I.. Oolendllllt FOREST MEADOW CONDOMINIUM ASSOCIATION i j , I , ,1 , DOROTHY M. CONNOLLY, Plaintiff IN THB COURT OF COMMON PLEAS CUMBBRLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-5225 CIVIL : JURY TRIAL DEMANDED VB. . . FOREST MBADOW CONDOMINIUM ASSOCIATION and GBIS'l'WHITB LANDSCAPING INC., Defendants : HS"JUI. ~!B 11ft IlA.TTml 0. D.,...J)AIJ'l' >>nit..... 1I1f~ COImmIiVTmr usocnnmr TO pr..a. T1II'PlrP' S CQIOr.1l. T1II'P AND NOW, comes Defendant Forest Meadow CondalliniWII Association (" Forest Meadow") to answer the Complaint of Plaintiff Dorothy M. Connolly I"Plaintiff"), aa toll0W8: 1. Denied. 2. Admitted. 3. Denied. 4. AdIIIitted in part and denied in p.rt. It is adaitted that Poren MNcSov va. the owner ot the Porest ....CSOV CondcxaJ.ni~. Obvloualy. the tenant_ ot the ..lel CODdc81nll1M exercis. control over certaln area.. S. Denied. ,. Denied. 1. Deftied. .., 8. Denied. COt11ft' I DOROTHY K. COHHOLLY v. POUST InI!IUlOIf COHDOIIIHmII ASSOCIATIOH 9. Paragraphs 1 - 8 hereof are incorporated by reference herein as if set forth in full. 10. Denied. By way of further answer, paragraph 4 hereof is incorporated herein by reference. 11. (al - (j) . Denied. 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. WHBlUIPOllB, Defe.......tlt Poreat Me&c1ow CondOll.inium Asaodation d~nda judgment in ita favor and ag.i~t Plaintiff Dorothy N. Connolly, with coats ......ed to Plaintiff. ~& 1% ~.-.&~. Mil> ~ ld.t.'Y "to mn~n'W. ............~ ~.. 11. Paragnpha 1 . 17 Mnof ani lnc:orpol'atecl by nlf.nlDCe Mrein .. if He fonh 1n full. 02. 19. . 25, These allegations are directed to a defendant other than answering defendant, and therefore no responsive pleading to these allegations of Plaintiff's Complaint are required and same are denied. WHEREFORE, Defendant Forest Meadow Condominium Association demands judgment in its favor and against Plaintiff Dorothy M. Connolly, with costs assessed to Plaintiff. NEW 1lATl'D 26. Plaintiff's claims are barred in whole or in part by the applicable statute of limitations. 27. Plaintiff's claims are barred in whole or in part by the doctrine of contributory and comparative negligence. 28. Plaintiff's claims are barred in whole or in part by the doctrine of assumption of riak. 29. Plaintiff haa failed to atate a claim upon which relief can be granted. 30. Forest Meadow had no actual or c0n8tructive knowledge of any dangerous condition on ita premi.... 11. Plaintiff has faUed to establish that her fall wu the result of any dangerous condition that existed on the pnai.... . ] . VERIFlCA nON I, ROBERT E, MAXWEll., JR" stale that Jam tbe Manager ofthc Association Management Division ofPropcrty Management. Inc., and am authorized \0 make this verification on behalf ofDcfcndant .'orcst Mcadow Condominium Association. In that gpacity, J lltatc: that the fae1s 8Ct forth in the foregoing ANSWER WlnJ Nb"W MA TIER arc tnIC UJlOIl my knowledge, information .xJ belief. I UDdersIand ahal my ...,.~. arc made subjca to 18 Pa. COOl. StaI. 4904, providiua for aiminal pcna1Uca for IIIIlIwom Ulaific:ation to aulhori\iQ. Date: I ti" 1'1; ....~..~..___._... ".J_':.. ..__'~, ,~_.u,_ ,__._ FE k'li../~ ! ~.. .../':~.~..........I~ ....... ROBERT E. MAXWtU... JR. (~96) . ., CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served upon counsel of record on October 14, 1996, via United States First Class Mail, postage prepaid, addressed as follows: W. Scott Henning, Esquire Handler and Wiener Post Office Box 1177 Harrisburg, PA 17108-1177 (Attorney for PLAINTIFF) ilt y --.-. /~~~ J, Il-Ub Marianne SottJ:1e RBYNOLDS " HAVAS A Professional Corporation (34961 . ,... j , an . .. N f: Cl - ~ I N .... ts r_. -}}~",... .0 0\ . . . ' It lot Z ~ t I J; f";; I . .. - .. Q - I ~ j j :I! !1t.2 ;; lot _ _ ..I .. Q Z C x . . . DOROTHV M. CONNOLLY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 96-5225 CIVIL FOREST MEADOW CONDOMINIUM ASSOCIATION and GEISTWHITE LANDSCAPING INC., JURY TRIAL DEMANDED Defendants PLAINTIFF'S ANSWER TO DEFENDANT FOREST MEADOW CONDOMINIUM ASSOCIATION'S NEW MATTER AND NOW comes the Plaintiff, by and through her attorneys, Handler and Wiener, replies to the Defendant's allegations of New Matter as follows; 26. Denied. The allegation set forth in Paragraph 26 is a conclusion of law to which no responsive pleading is necessary. however, to the elltent that the Honorable Court deems a response necessary. the Plaintiff denies that her claim is barred in whole or in part by the appbcable statute of limitations and proof to the contrary is demanded at the trial in this mettltf. 27. Dented. The atlegatton set forth in Paragraph 27 is a concluSion of law to which no responsIVe ""adlnQ IS MCassary. howsvltf, to the eJlter\t that the Honotllbte COUtt cMema a response ~uarv. the Plaintiff denies tMt her efalm IS . barred in whole or in part by the doctrine of contributory and comparative negligence and proof to the contrary is demanded at the trial in this matter. 28. Denied. The allegation set forth in Paragraph 28 is a conclusion of law to which no responsive pleading is necessary, however, to the extent that the Honorable Court deems a response necessary, the Plaintiff denies that her claim is barred in whole or in part by the doctrine of assumption of risk and proof to the contrary is demanded at the trial in this matter. 29. Denied. The allegation set forth in Paragraph 29 is a conclusion of law to which no responsive pleading is necessary, however, to the extent that the HonOfable Court deems a response necessary, the Plaintiff denies that her claim fails to state a claim upon which relief can be granted, and proof to the contrary is demanded at the trial in this matter. 30. Denied. It is denied that Defendant Forest Meadow did not have actual or constructive knowledge of the dangerous condition of its premises and proof to the contrary is demanded at the trial in this metter. 31. Denied. For the reasons set forth in the Plaintiff's Complaint, it is denied that the Plaintiff has failed to u1Ibliib that her fall wu the result of any dangerous condition tn.t existed on the premlsaS, arid proof to the contrary is derNnded at the trial in this matter. I -' DOROTHY M. CONNOLLY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 96-5225 CIVIL FOREST MEADOW CONDOMINIUM ASSOCIATION and GEISTWHITE : JURY TRIAL DEMANDED LANDSCAPING INC., Defendants ----------.............................--..... ...--------- G.ERTlFICATE OF SERVlC~ On the 1 fth day of October, 1996, I hereby certify that a true and correct copy of Plaintiff's Reply to New Matter of Defendant Forest Meadow Condominium Association was served upon the following by depositing in U.S. Mail; Rolf E. Kroll, Esquire REYNOLDS. HAVAS 101 Pine Street P.O. Box 932 Harrisburg, PA 17108-0932 HANDlER AND WIENER ~ Date: ..l.OLlflH-- " . . VERIFICATION PURSUANT TO PA R.C.P. NO. 1024 {el W. SCOTT HENNING, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney. because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made c: subject to the penalties of 18 Pa C.S. 14904 relating to unsworn falsification to authorities. Date: 10 f-CJf, , , - ~g~ N . :c . 6::iQ ll: I ~ ~ . ~ ~ ~ cO~ilf J 1 I ~ t"\l i q J I t"\ . - .- CERTIFICATE OF SERVICE AND NOW, this 31st day of March, 1997, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS " HAFER, attorneys for Defendant Geistwhite Landscaping Inc., hereby certify that I have this day served the within Praecipe for Entry of Appearance by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: W, Scott Henning, Esquire Handler and Wiener 319 Market Street P.O. Box 1177 Harri8burg, PA 17108 Rolf B. Itroll, Baquire Reynolda " Havas 101 Pine Street P.o. Box 932 Harrisburg, PA 17108-0932 THOMAS, '1'HOMAS " HAPIR ~~. ~ ?~ ~r;;; ..;f I'l~ . ~, :r.-.:O;(2 i!: o. 01 ,'- ~.:; ,: .~ .... , - 0' ~~; n~ t6 ;:L Q. .u t-..- ..._. ""'Iiii- .,m _ ~ ~ d ~= cb~II' . . DOROTHY M. CONNOLLY, Plaintiff v. IN THE COURT OF COMMON PLEAS ctlMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . FOREST MEADOWS CONDOMINIUM ASSOCIATION AND GEISTWHITE LANDSCAPING INC., Defendants NO. 96-5225 . . JURY TRIAL DEMANDED NOTICE TO: Dorothy M. connolly c/o W. Scott Henning, Esquire Handler and Wiener 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 YOU ARE HEREBY notified to plead to the enclosed New Matter within twenty UO) days of service hflreof or a default judgment may be entered against you. THOMAS, THOMAS " RAPER. c~~~ 305 North Front Street P,O. Box 999 Harri.burg, PA 17108 (717) 255-7632 A'l"1'OIUI8TS FOR DRFBRIWft' GltS'nlllITE lARDSCAPlNO tlK:. DATED I L.J hsl~7 DOROTHY M. CONNOLLY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-5225 v. FOREST MEADOWS CONDOMINIUM ASSOCIATION AND GEISTWHITE LANDSCAPING INC., Defendants JURY TRIAL DEMANDED ANSWEa AND NEW MATTER OF DEFENDANT GEISTWHITE LANDSCAPING INC. 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. After reasonable investigation, the answering Defendant is without information or knowledge sufficient to form a belief as to the truth of the allegations. 5. AdIlIitted. 6. Admitted. 7. Denied. After reasonable investigation, the answering Defendant is without information or knowledge 8ufficient to form a belief &8 to the truth of the allegations. 8. Denied. After reaaonable investigation, the anawering Defendant ia without information or knowledge sufficient to form a belief a8 to the truth of the allegations. cotlHT I Dorot.hv Mo. etmnollv y ~ 'o~~~ ~dows ~iniu. A8AtK!iation '}. The answers aet forth above in Paragraphs 1 tht'QU9h . ant incorporated herein by reference. 10. -17 . The allegations contained in Paragraphs 10 through 17 of the Complaint are directed to a party other than the answering Defendant and, therefore, no answer is required. WHEREFORE, Defendant Geistwhite Landscaping Inc. demands judgment in its favor and against Plaintiff. COUNT I I Dorothv M. Connol1v v. Geistwhite LandscaDina Inc. 18. The answers set forth above in Paragraphs 1 through 17 are incorporated herein by reference. 19. Denied in accordance with Pa.R.C.P. 1029(e). 20. Denied in accordance with Pa.R.C.P. 1029Ie). :no Denied in accordance with Pa.R.C.P. 10291e) . 22. Denied in accordance with Pa.R.C.P. 1029(e). 23. Denied in accordance with Pa.R.C.P. 1029(e). 24. Denied in accordance with Pa.R.C.P. 1029(e) . 25. Denied in accordance with Pa.R.C.P. 1029(el. tl'HElUFORE, Defendant Geistwhite Landscaping Inc. demands judgment in its favor and against Plaintiff. NEW MATTER 26. The plaintiff's injuries and cia_ges were not due to any act or ()('ftiaalon on the part of the Defendant. 27. The condition which ia alleged to have caused Plaintiff's injuries and dalllllges was not a dangerous condition. 21. The condition which 18 all4t9M to hue caused Plaintiff'. injuries and dallag.. MY haft been open and obvlous. -2- 29. The Plaintiff's injuries and damages were caused or contributed to by Plaintiff's own negligence and carelessness as follows: (a) In failing to maintain a proper lookout for existing conditions where she was walking; (b) In failing to observe the subject condition; (c) In failing to avoid the subject condition; (d) In failing to be alert and attentive; (e) In failing to exercise due care under the circumstances. 30. Plaintiff's claims are barred or limited by her own negligence and carelessness in accordance with the doctrine of comparative negligence. 31. There was no negligence on the part of the answering Defendant. In the event that it should be judicially determined that there was negligence on the part of the answering Defendant, which is specifically denied, then such negligence was not a substantial factor in causing the Plaintiff's fall, injuries and damages. 32. The answering Defendant did not create any condition which caused or contributed to causing Plaintiff's injuries and damages. 3). Plaintiff may have failed to mitigate her damages. H. Plaintiff'. injuries and damages were the result of a condition or condition. that were not created by th<< answering Defendant and for which the answering Defendant is not responaible. -J. WHEREFORE, Defendant Geistwhi te Landscaping Inc. demands judgment in its favor and against Plaintiff. THOMAS, THOMAS & HAFER Q& &,~ C, Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 LD. No. 06776 ATTORNEYS FOR DEFENDANT GEISTWHlTE LANDSCAPING INC. -4- DOROTHY M. CONNOLLY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSVL VANIA Plaintiff v. NO. 96-5225 CIVIL FOREST MEADOW CONDOMINIUM ASSOCIATION and GEISTWHITE LANDSCAPING INC.. JURY TRIAL DEMANDED Defendants ...---..................--...-------.--.............---.-----.-------- PLAINTIFF'S REPLY TO DEFENDANT GEISTWHITE LANDSCAPING, INC:S NEW MATTER AND NOW comes the Plaintiff, by and through her attorneys, Handler and Wiener, replies to the Defendant's allegations of New Matter as follows: 26. Denied. It is denied that the Plaintiff's injuries and damages were not due to any act or omission on the part of the Defendant. By way of further answer, Plaintiff incorporates and refers to the allegations of negligence and acts of omission and commission as set forth in her Complaint. 27. Denied. It is denied that the condition that caused Plaintiff's injuries and damages was not a dangerous condition and proof to the contrary is demended at the trial in this mettei'. 28. Denied. It is denied that the condItion which caused the Plaintiff's injuries was .open and obvious". and proof to the contrary is demanded at the trial to this metter. 29. Denied. It is denied that the Plaintiff's injuries and damages were caused or contributed to by the Plaintiff's own negligence and carelessness as set forth in Subparagraphs a through e, and proof to the contrary is demanded at the trial in this matter. 30. Denied. The allegation set forth in Paragraph 30 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, the Plaintiff denies that her claims should be barred or limited by her own negligence and carelessness in accordance with the Doctrine of Comparative Negligence, and proof to the contrary is demanderlat the trial in this matter. 31. Denied. The allegations set forth in Paragraph 31 are bald averments of law to which no responsive pleading is necessary, however, to the extent that the Honorable Court deems a response necessary, the Plaintiff specifICally denies the Answering Defendant was not negligence and further denies that any negligence on the part of the Answering Defendant WIS not e substlntill factor in clusing the Plaintiff's fill, injuries and damages. and proof to the contrlry is demanded at the trill in this mettei'. 32. Denied. It is denied that the Answering Defendant did not create any condition whlc:h caused or contributed to causing Plaintiff's injuries and darMgeS arid proof to the contrary is demanded It the trial in this metter. 33. Denied. The aIlegetlon ,et fOfth in Paragraph 33 Is II conclusion of law to whtch no rtIPOf'sive p1eadln; is requited, however. to the extetlt that the Honotlble 2 DOROTHY M. CONNOLLY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v, NO. 96-5225 CIVIL FOREST MEADOW CONDOMINIUM ASSOCIA nON and GEISTWHITE LANDSCAPING INC., JURY TRIAL DEMANDED Defendants .,,< On the 2#111 day of April, 1997, I hereby certify that a true and correct copy of CERTIFICATE OF SERVICE Plaintiff's Reply to New Matter of Defendant Geistwhite Landscaping, Inc. was served upon the following by depositing in U.S. Mail; Rolf E. Kroll, Esquire REYNOLDS. HAVAS 101 Pine Street P.O. Box 932 Harrisburg, PA 17108-0932 C. Kent Price, Esquire THOMAS, THOMAS. HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 HANDLER AND WIENER Date: 41~7 By W.Seo 319 Market S P.O. Box 117?/ Harrisburg, PA 17108 (717) 238-2000 ATTORNEY FOR PlAINTIFF .. -':':'_~I,,:;;":':"_~'-";L' ~ 4 ~ M I~ .. ~ - 3~ x: ;:[ Q,. q~ c~ L~ \D ~i~ ~ , I.l' ~ ~J<iJ r=: ~-Q. .., a & ~ ~ II) ... &l. t., j;!; .., M ...... Ir :~;, l :;: ,. ~. ..... ~;d M ;.;, "'-".' C'w . .:~.Jf. .'. ~ ~ia: J: .~ llJ ~ .. QUEStiON 4: Was plaintiffs contributory negligence a substantial factor in bringing about plaintiffs harm? YES rI' NO If you answer Question 4 "No," proceed to Question 6. If you answer Question 4 "Yes," proceed to Question 5. QUESTION 5: If you have answered "Yes" to questions 1. 2, 3, and 4, then answer the following: Taking the combined negligence that was a substantial factor in bringing about the plaintiffs harm as 100 percent, what percentage of that causal negligence was attributable to the defendant and what percentage was attributable to plaintifr? PERCENTAGE OF CAUSAl NEGUGENCE ATTRIBUTABLE TO DEFENDANT, GElS1VM1TE LANDSCAPING, INC. 70 '" PERCENTAGE OF CAUSAl NEGUGENCE ATTRIBUTABLE TO PlAINTIFF, DOROTHY M. CONNOlLY l~1J '" TOTAL 100% If you have bm plaintiff. perc..1tage of negligence to be great<< thin 50 percenI, plltilltitf cerGlOt reco.... and you IhoUd reun to the CCUIIOOm. >- ..:r >- q; - ...... ~ ~; ~..~ ,.. ~;; ~:...:: ;.;~ ~ir c:: "--#-~:': '.1:j c ~... ;- 0 -:---" /.'~ c. ..)~; ... N 0::\' -' ~ ,'Ji"a =., "(J~ F -. ~ u_ CO ::l 0 0- U ~ ~..\id jllll l'di=l J~I ~ . -'....._~. .- '----. ' :-- - . ,,_..,"-" ,.. II. Motion for a ~ew Trial 5. Defendant moves for a new trial for the reasons set forth above in Paragraphs 1 through 4, the contents of which are incorporated herein by reference. 6. The verdict was manifestly against the weight of the evidence. 7. The Court erred in instructing the jury that in determining whether a dangerous condition existed, the jury should consider the condition of the entire sidewalk rather than merely the single dirt plug on which the Plaintiff allegedly slipped, said ground having been preserved by Defendant's objection to that specific jury instruction at the condusion of the Court's charge. 8. The Court erred in refusing 10 allow Defendant Geistwhite Landscaping, Inc. 10 argue in its closing to the jury that the Plaintiff assumed the risk of the harm by knowingly and consciously encountering a condition of which she was aware and which she considered to pose a risk of harm. said request having been made by the Defendant during the charge conference with the Court. 9. The Court erred in refusing 10 charge the jury on assumption of the risk, which point for charge was requested by Defendant Geistwhite Landscaping, Inc. 10. Defendant Geistwhite landscaping, Inc. reserves the right to file additional grounds supporting this motion after receipt. review and analysis of req.18Sted portions of the trial transc:ripl 11. Defendant GeIItwhite Landscaping. Inc. certifies that the foIIow:"g portions of the trial tr8nsctlpt are essential for the dispolition of ita post-trial motion and, therefore. requests that said portions of the transaipt be trMSCribed by the official court reporter: T estihlullY of PIal.ltiIf Dol oa IJ' C0nn0lIy Testimony of Ber1M1in James Testimony of Ruth Corbin ChIf1Ie conference held In dIaIlOerI Defendant <i'li'WIIe', en! request for dirtded venId CUt', chatge to the jury i ! i .1 I I ! DOROTHY M. CONNOLLY, PLAINTIFF V. GEISlWHlTE LANDSCAPING. INC., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANT . : 96-5225 CIVIL TERM QflP~R OF COUBI AND NOW, this 28th day of July, 1998, pursuant to the motion of defendant Geistwhite landscaping, Inc. for post-triaJ relief, IT IS ORDERED that the following portions of the triaJ shall be transcribed: testimony of Dorothy Connolly, Benjamin James and Ruth Corbin, the charge to the jury, defendant Geistwhite's oral request for a directed verdict, and the chambers conference regarding the charge. Defendant Geistwhite Landscaping, Inc. shall file a brief in chembers in support of its post-trial motion not later than fifteen (15) days after the filing of the transcript. Plaintiff Dorothy M. ComolIy shall file a response brief in chambers not later than fifteen (15) days after the filing of Geistwhite's brief. The motion wIR be decided by thIIluclge alone without orallllgument unless any party requests oral argument. in which case cnIll1gument will be scheduled. W. Scott H.lIli1lQ. EIq\.n For PIIil etilf C. Kent Price, ESQUiN For DIIwldInt / J o Edgw B. J. _ c~.... ....~c.~ lJ.l'1/t;r.' '" ... Ccut RtpOI'tW :IM HANTILER &\,~ l.,,,j., J: IL"IIJi'l Irh I \\""11'[' \\ ""..17 II> :'L.~I.' I' ,\ ,. l' J.'".. ','.. , ~.' . \ ;"-,.h!i \1 -\:,-" r'O' ",L.lli)..',. " \ r...j".... , i .' ~. ,-, !l:w-.l, \ It',.:' I' ',' . ,r" ~,,,.', \: 1.- .,' : It . . . . . !l:' ". :,,\ :.:;'- ",", , -'..;" Ii,' .' d.. '~" . ,...... ,', , July 30, 1998 The Honorable Edgar B. 8ayley Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 VIA FAX JttruPL 7-~( -fo Re: Connollv v. Geistwhite LandscaoinQ. Inc. Cumberland County C.P. No. 96-5225 Dear Judge Bayley: As a follow.up to the filing of the Post Trial Motion by C. Kent Price, Esquire on behalf of the Defendant, on behalf of the Plaintiff. we wish to designate the testimony of Donald Geistwhite as additional testimony that needs to be reviewed for purposes of deciding the Defendant's Post Trial Motion. Since the testimony of Donald Geistwhite had been presented by video-taped deposition and consequently we already have the deposition transcript in hand of the testimony that was presented at trial there is no need to specifically request the transcription of that particular testimony, however, I simply wanted to advise all parties that I believe the Geistwhite testimony is also necessary and relied upon by the Plaintiff with respect to Defendant's Post Trial Motion. I trust that this letter wilt be accepted in lieu of a formal objection for request for additional transcription proceedings in accordance with Pa.R.C.P. 227.3 Very truly yours. HANDlER AND WIENER By DfC1'ATtD BUT NOT READ WSH:bsk cc: C, Kem PrIce. EsqlJitl Pam Shuff.,. Court R~fI'" COUft Admin<str.tOf's Ol"c. . Cumbefland CO\lf\lY Prot~t.ry', OfflCf - C~rl.nd Count, (,Ia fl.1 ~ t.ll (: s: c.: ..,.. I~ M ''i _ UJ~~? ().. <.')?~ F- t J ~::: '. \:-;. ""f' t-i.~ . ';..:1 ):..- C._' . -; (,] l;,JI, N '..~ lZ\' F~; ;';";;5 .L , rl u.. ...~ ... ~ .", ~ ::J C1' U . . . a: w z !!! t a i~H~1 i~jjll! !a:... . W.I; ~ ..I " Q Z <( % . . theory that Defendant did not owe a duty to the Plaintiff given the facts presented at trial. 3. Denied. The allegation set forth In Paragraph 3 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Court was incorrect In refusing to grant a directed verdict in favor of Defendant Geistwhlte Landscaping, Inc. on the theory that the Plaintiff voluntarily assumed the risk of her injury. 4. Denied. The allegation set forth in Paragraph 4 is a conclusion of law to which no responsive pleading Is required, however, to the extent that the Honorable Court deems a response necessary, it Is denied that the Court was incorrect in refusing to grant the directed verdict in favor of Defendant Geistwhite Landscaplng, Inc. on the ground that the dirt plug on which Plaintiff slipped did not involve an unreasonable risk of harm. II. Motion fOf New TrIal 5. Paragraph 5 is an incorporation Paragraph as the extent applicable the Plaintiff IncOfpOrates her Reply to Paragraphs 1 through 4 of Defendant's Motion. 6. Denied. The allegation set forth in Paragraph 6 is a conclusion of law to Which no responsive pleading is required, however. to the extent that the HonOfable Court deems a response necessary, it is denied that the vllfdict was manifestly again$t the weight of the evldence. 1. Denied. The ....gation set forth in Paragt8f)h 7 is a conclusion of Iew to which no responsive plitading is reqUll'ed. however. to the elUent that the Honorable CO\.ll't deems a r"pQnS4Il Me.sury. It IS \Holed that the Court lIfred in instructinO the jury that in determining whether a dangerous condition existed, the jury should consider the condition of the entire sidewalk rather than merely the single dirt plug on which the Plaintiff allegedly slipped. By way of further answer, given the fact that there were numerous dirt plugs scattered about the sidewalk it certainly was appropriate for the Judge to suggest to the jury that they consider the entire condition of the sidewalk upon which Ms. Connolly was traversing. 8. Denied. The allegation set forth in paragraph 8 is a conclusion of law to which no responsive pleading is required, however, to the extent that the Honorable Court deems a response necessary, it is denied that the Court erred in refusing to allow Defendant Geistwhite to argue in its closing to the Jury that the Plaintiff assumed the risk of harm. Given the facts of this particular case and the testimony presented, the charge rendered by the Court pertaining to the concept of comparative negligence was adequate and covers the same issues, factually and legally, that the Defendant raises under its assumption of the risk theory. 9. Denied. The allegation set forth in paragraph 9 is a conclusion of law to which no responsive pleading is required, however, to the extent that the HonOfeble Court deems a response necessary, it is denied that the Court erred in refusing to charge the Jury on assumption of the risk. By way of further answer, the Plaintiff incorpOfates its reply to Pmgtaph 8. 10. No ruponse necessary. 11. No response nKUsary. WHEREFORE, Plaintiff requests this Honorable Court to deny the Defendant's Motion for Post-Trial Relief in the form of Motion for Judgment Notwithstanding the Verdict and Motion for New Trial. Date: August 21, 1998 ( By W. Scott H nnin I.D. 132298' 319 Market Street P.O. Box 1117 Harrisburg, PA 17108 17171238-2000 Respectfully Submitted, HANDLER AND WIENER AttOfnty fOf Plaintiff . . DOROTHY M, CONNOLLY, . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . V. . . . CIVIL ACTION - LAW . FOREST MEADOW CONDOMINIUM . . ASSOCIATION AND GEISTWHITE . . LANDSCAPING, INC., . . Defendants . 96-5225 CIVIL TERM . IN REI REOUESTED PORTIONS OF JURY TRIAL Proceedinqs held before the HONORABLE EDGAR B. BAYLEY, J., CWlberland County Courthouse, carlisle, Pennsylvania, on July 8, 9, and 10, 1998, in COUrtrOOll NU1Iber Tvo. APP1Wl.\RCIS t V. SCOTT HDbftIlC. bq\llre for the Plaintiff C. DIft mea, hq\lire for Defendant ~i.tvhite La1'ldscapll!ilJ, Inc. IlOU I. DOLL, bq\llre fot Defendant FOrest IIHclov C:~lni\dl AaeOC::lat1on . ._.--.... -- . . INDEX TO WITNESSES PaR THE PLAINTIFF DIRECT CROSS REDIREcr RECROSS 1. Dorothy M. Connolly By Mr, Henninq 5 76 By Mr. Price 47 80 By Mr. Kroll 72 82 2. Benjamin D. Ja_s By Mr. Henninq 85 -- 98 -- By Mr. Price 96 -- -- 3. Ruth L. Corbin By Mr. Henninq 99 -- a .---. . . INDEX TO EXHIBITS FOR THE PLAINTIFF IDENTIFIED ADMITTED 1. Photograph of Dorothy's hOlDe 15 2. Photograph of .treet and sidewalk 16 -- 3. Shoes 22 4. Medical Expenses 37 -- 5. Miscellaneous Expenses 38 6. Dirt plug 23 -- 7. Videotape of Dr. Green 83 -- 8. Transcript of Dr. Green 83 -- ) . . 1 July 8, 1998 2 carlisle, Pennsylvania 3 4 (Whereupon, the following portions 5 of the jury trial were requested,) 6 THE COURT: First witness. 7 MR. HENNING: Dorothy. 8 THE COURT: Will it be easier for her if you 9 put her chair down at the base rather than come up to the 10 elevated? I will do it either way if that is possible. n MR. HENNING: I believe it would, Your Honor. 12 THE COURT: Why don't you grab another chair 13 here and put it right down there at the base, either one 14 with the aras or this one, that is all right. 15 MS. CONNOLLY: I can get up the steps. 16 THE COURT: Are you sure? 17 MR. HENNING: Yeah. I'. not going to hop up, 18 but I can get up. 19 THE COURT: Just so you feel you can get up, 20 u'... 21 Mbereupon, 22 DOROTHY N. CON1fOLLY, 23 having been duly sworn, te.tified .. follows I :u ;n . . . 1 DIRECT EXAMINATION 2 BY HR. HENNING: 3 Q Miss Connolly, would you please state your 4 full name. S A Dorothy Mary Margaret Connolly. 6 Q What is your current address, Dorothy? 7 A 106 Strayer Drive, carlisle, Pennsylvania. 8 Q How long have you resided at that address? 9 A From April of 1987. 10 Q And am I correct that the address that you 11 reside is a condominium? 12 A Yes. 13 Q And that's part of the Forest Meadow 14 Condoainiua or9anization? 15 A Yes. 16 Q And based upon what you just said, I'. 17 assuainq that back in 1994 you resided at that condoainiua 11 COIIplex1 19 A Yes. :10 Q How old were you in 1994, October of '94 :11 specifically? ,,:I A I w111 be 77 years old in 1:1 days, so n subtract four froe -- that. would _ke .. 7). :14 0 COlnq baa to 1994. can you describe for us n .......t your lieneral health sUUs va. lUte? \ . . 1 A Excellent, absolutely excellent. Up until 2 that time, I had been in the hospital when I was six years 3 old, I had my leg amputated, In 1970, I had a breast 4 reduction, and in 1945 and 1947 I had two children. They 5 are the only times I've ever been in the hospital. I had 6 excellent health. I did everything. I danced. I rode a 7 bicycle. I swam. I did anything that you can do. It you 8 could do it, I could do it because I'm very competitive. 9 Q You mentioned that you had your leg partially 10 amputated when you were six years old, is that correct? 11 A six years old. 12 Q That's your right leg? 13 A My right leg. 14 Q And you wear a prosthetic device on your 15 right leg now? 16 A Yes. I have a d1tterent type stuap than Vhat 17 I had .een 1n the past fev years. I notice that on .~te" 11 now-- 19 THE COURT: Hold on, ..'a.. You have just 20 'lot to aort of keep within the .~ of the que.tion. You 21 war a prosthetic device now? 22 THE WI'l'IIUS: Ya. I do, 22 TIft COUR'I'I ...t queat!on. 24 IY 1Ul. HDllltNCI 25 Q ..fots OCtober of .,.. .fon the cSat. of . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . this fall, did you use a walker or a cane? A No. Q I see you are using this walker device today. A Yes. Q Were you using that walker on the date of this incident? A No, Q Were you using a cane on the date of the incident? A Q to ubulate? A No. Q Aa I correct, Dorothy, that in october 1994 you suffered an injury to your right shoulder when you fell on the walkway at the condoainiua coaplex? A On october the 18th, I shattered .y shoulder, No. Did you require the use of a cane or a walker yes. Q Are you right-handed? A Right-handed. Q Prior to -- strike that. Can you deacrlbe for us the activities that you wel'S enqaged in 1n ths two to three hour p4ll'lod prior to your fall? What vera you cIoinq that afternoon? A That aornlnq after br..kfaat sy friend p1cked 1 "" ^ 1 me up somewhere around the noon hour. We were going to 2 Hechanicsburg to a meeting for retired teachers, something 3 about insurance. It really didn't affect me because I had 4 already been retired a couple of years, but my friend who is 5 younger than I she had -- she was interested in going, and 6 7 8 9 10 11 12 mechanics of how that happened. Where did ahe park and what 13 happened? 14 A She parked in the front of the condominium. 15 I normally do not go out the front door, and my front door 16 is located on the side rather than in the front. I nor_lly 17 go out the back through the garage and consequently really 18 don't know too much about what 90es on in the front of .y 19 house. But she picked .e up there, and so When sh. brought 20 m. back she dropped me oft at the sa.e place. 21 Q And this friend'S nam. Is Ruth Corbin, is 22 that correct? 23 A Ruth COrbin. 24 Q And When she CUIe to pick yo\l up, ahe pubcl 25 out tront. Did she c:oIM up the val!tv.)' atilt c:oIM iftto yo\lr she just asked me to go along, and I was doing it as a favor. 0 And did she come to your house and pick you up? A Yes, she did. 0 And explain that to us a little bit, the . . . 1 home? 2 A Yes, she did. 3 Q How long did you spend inside your home? 4 A A maximum, I would say, 10 minutes. 5 Q You exchanged some conversation, and then I 6 assume you left and went back out that front door? 7 A Probably. 8 Q Explain to me what transpired from the time 9 you left the front door until you got to the car. 10 A Well, we ~alked down the sidewalk, and we 11 noticed these mud plugs which are approximately, I would 12 say, the length of my thumb and possibly not quite as wide 13 because I've got kind of big thumbs, and we looked at them 14 and commented on the fact that they were there. 15 At that time there were no workmen around. 16 There were just the mud plugs. I heard the aerator being 17 used that morning, but the aerator was not on the co.-on 18 ground at my spot. 19 THE COURT: Hold on, ma'am. You are way 20 beyond the question again. Next queation. 21 BY MR. HENNING: 22 Q That was 90inq to be my next question. When 23 you were walking out that day and you and Ruth noticed th.s. 24 aud plug. or dIrt pluqs on the walkway, did you s.. any 25 workmen around? 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 It 20 21 22 U 24 as . . A No. o Did you hear any workmen? A Not at that particular time. That was around the noon hour. o I assume you went to the meeting in Hechanicsburg? A Yes. o And then you stayed at the meetinq and came back to your condominium complex? A Yes. o About how many hours later did you come back? A I'. not a clock watcher, but I would say two, two and a half hours at the IIOst. o And I assume you came back to the condominium unit with Ruth driving? A Pardon? o You came back to your complex with Ruth? A Yes. o As opposed to someone else that may have dropped you off? A No, no. Q NOW, in OCtober of 1994, did you have a driver's license" A Y... o Did you own a car at the ti..? 10 . . 1 2 3 4 5 6 7 Camry, I assume you had just purchased that car? 8 A Yes, I had purchased it in February. 9 Q So the fact that Ruth was picking you up 10 wasn't because you didn't drive at the time or weren't able 11 to drive? 12 A No, no. I was doing her a favor. 13 Q When you were leavinq the house that day to 14 go to the aeetinq, what were the weather conditions like? 15 A Nice, pleasant, typical fall day. 16 Q I think you've alr.ady answered the next 17 question which I was qoinq to aak you. On the morning of 18 this day that you fell, did you hear or see landsc.pers it doinq activities on the property? 20 A I heard it. I did not see it. 21 0 As part of living .t the condominium complex, 22 did you pay . monthly ....s...nt or a f..? 23 A Yes. 24 0 In 199., how web was that? 25 A '19.00 1n "4. A Yes. Q And what kind of car did you have? A I have a '94 camry. 0 And did you own that car in October of '94? A Yes. Q So if this happened in '94 and you had a '94 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 It 20 21 22 2J H 25 . ..-.... ..-- . . o And part of the fee that you paid, did the association provide snow removal and landscaping services to the unit owners? A Yes. o In other words, you as a resident there weren't required to go out and mow the grass or trim the bushes? A No, no. o Am I correct that there was a condominium association at the condominium complex called the Forest Meadows Condominium Association? A start from the beginning. o Were you aware that there was an association with the complex called the Forest MeadOWS Condominium Association? A 0 at anytime? A the officers. 0 Oh, yes, ye.. And were you involved with that a..ociation Ye., ri9ht froa the beqlMing I ",.. OM of 1 was the secretary. In 1994, did you hold any office or capacity other than simply being a member of the a..ociation? A Well. as t $SY, t was the .ecretary of the ...oclation. o aut 1'. talking It94 did you hold any 12 . . 1 official 2 A Oh, in -- no. I'm sorry. I misunderstood. 3 No. In 1994, I had already resigned. 4 0 So in 1994 you had just been a regular member 5 or a dues paying member? 6 A Yes, yes. 7 0 Were you aware in 1994 that the condominium 8 association had engaged a landscaping company to do the 9 mowing, trimming, edging and this aeration process? 10 11 12 13 14 15 16 17 day and walked down the walkway with Ruth, you indicated 18 there were dirt plugs strewn across the walkway. Were there 19 al.o dirt plug. strewn throuqh the gra.sy area.? ao A I wouldn't. have noticed. I didn't. look. 21 Q But the dirt plug. that you sav on the 22 valnay, was it your Undent.anding that those ca.. troa the 23 a.rat.ion proce.s that. va. being done earlier that day1 24 A Ye., because they had aerated before and 1 as recG9nlaed them. A Yes. 0 In 1994 before the incident happened, did you know t.he name of that landscaping company? A Yes. Q And what was the name of that company? A That was Ceistwhite Landscaping. Q When you came out of your condominium that 1) . . 1 Q Going to the point after the meeting when you 2 came back to the complex, Ruth dropped you off at the 3 street, did Ruth get out of her car? 4 A No, she did not. 5 Q She dropped you off, and then as far as you 6 know she just pulled away? 7 A Yes. 8 Q Do you know if she witnessed any parts of 9 your fall? 10 A No, she said she did not look in her 11 rear-view mirror. 12 Q Tell the jury What happened fro. the ti.e 13 Ruth dropped you off and you got out of the car and started 14 walking up the walkway. 15 A Well, you've seen a picture of how it's 16 located. The people who own the condominiums had put in 17 those little concrete things to make it easier for us to 18 walk from the road onto the sidewalk because we would have 19 been walkinq on grass, and grass get a wet and it gets 20 slippery. SO they had been installod several years before 21 that. 22 So I valkod over that, and I walked onto the 23 sidewalk, and I looked ah..d of myself, and I saw tnat there 24 vaa still th..e eud pluga th.re. And aa I ..id, I ..ntally 2S ..id to mys.lf I've 90t to vatch where I atep. 14 . . 1 Now, there weren't that many, like a hundred 2 or 50, but I had very big feet. I wear a size 11. So when 3 I said I had to watch where I stepped, yes, I watched, and I 4 saw the mud plugs, but I didn't see the back of my shoe 5 hitting the mud plug. As I say, my feet are big. 6 And so it wasn't until I was down that I 7 realized what had happened, that I had actually hit. And 8 fortunately tor me my daughter collected my shoe, and it 9 still had the mud plug on it, and so we've saved it for four 10 years. 11 Q Dorothy -- 12 MR. HENNING: Hay I approach the witnes.? 13 THE COURT: Sure. 14 BY MR. HENNING: 15 Q I'. qoinq to show you two photoqraphs that 16 had been identified as Plaintiff'. Exhibit No. 1 and No.2. 17 First, I would like you to identify what Plaintiff'. Exhibit II No. 2 repre.ent.. 19 A Nuaber 2, this i. .y home right here. The 20 entrance what yov would call the front entrance 1. in the :U sids, but you can't s.. it because ot ths tree. When I got ;n out of the car, 1 wa. Ilpproximately maybe about here, and 23 you can s.. a little portIon of tho.e two concrete plaque. 24 or whatever you want to call the.. 25 So I stepped on tho, stepped in here, and I 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . went probably as far as this spot when I went down. I knew I was hurt, and I knew I was hurt badly. And I sat there and there was no way that I was going to be able to get up and Q in a moment. moment. If I could just interrupt. We'll get to that I want to focus on these photographs for a A Okay. Q And I'm going to show you a second photograph because this will help highlight the street and the blocks that you were talkinq about. Can you identify what that is to the jury? THE COURT: What is that number? HR. HENNING: Plaintiff's Exhibit 2. THE WITNESS: The street -- THE COURT: Excuse me. I thought the first one you showed her was two. HR. HENNING: I meant to refer to it as one. I think I said I had one and then I also had a second one. THE COURT: She first went to one and now she has qot two? MR. HENNING: Yes, Your Honor. THE COURT: Tell us what that is, .a'am. THE WITHESS: This i. the street which ha. sinee been maead..tled, then there i. a little bit of 9r.s.. 16 ... -...... . . '- . . 1 then this is the grass plot that's in the front of 2 everybody's condominiums. 3 The people who live here then purchase these 4 concrete things. Dr. James had them put in because he is on 5 this side and I'm on this side. And then after I stepped 6 over there, I stepped on the main sidewalk which goes 7 sideways, came up here -- 8 MR. KROLL: Your Honor, may I have 9 permission to swing around so I can see? 10 THE COURT: Sure. Go ahead. 11 THE WITNESS: came around and vent up to 12 approximately, I cannot tell you for sure, in this area when 13 I went down. I went down so hard that I had a partial that 14 fell out. 15 MR. HENNING: Thank you. 16 BY MR. HENNING: 17 Q Now, I interrupted you. YOU started to may 18 that you had fallen. 19 A Yes. 20 Q And when you fell to the qround -- I'. U assuming you feU iaecliately to the fJround, in other words. 22 you didn't slip and catch yourself, you fell flat down on 23 the fJround? 24 A Well, .ppnently the position that 1 found :IS myself in 1 was kind of like a little bit on my side wIth 11 . . . 1 this leg sticking out into the grass because it had gone -- 2 and my hip lying on the concrete. 3 Q When you fell -- after you had fallen, were 4 you able to tell right away what part of your body was 5 injured? 6 A I would say -- I would say I knew it was the 7 upper part of my body, and I knew it had something to do 8 with my arm. 9 0 Were you in pain? 10 A Pardon? 11 0 Were you in pain? 12 A Great pain. 13 Q What did you do after you fell or what were 14 you able to do? 15 A I wa.n't able to do anything. I k.pt 16 boll.rinq h.lp, but a. I .ay, nobody com.. out th.ir front 17 door, and so nobody h.ard ... 18 And then there va. a little girl, probably 10 It or 12. who vas a piece up from me, and she va. going to 20 visit a girlfri.nd, I gu.... And she looked down and ahe 21 said, Are you aU riqbt? And I .aid, No. And abe said. Do 22 you need h.lp? And I .aid, Y.s. 2J So she welked down, and sh. looktld at ... 24 And I eaid, Will you pl.... 90 up to that doorway and knock 25 on the door and au them 01" t.U them that I need belp? And 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 as .. . Dr. James and followed by his wife came out immediately. He apparently had something to do with the athletes at Dickinson College -- THE COURT: Hold on, ma'am. You are again way beyond the scope of the question. THE WITNESS: Well, he THE COURT: Hold on. Next question. Please stay within the scope of the question. BY HR. HENNING: Q How long were you laying on the ground before the little girl came by? A I would say approximately 20 minutes. Q Now, this little girl, did you knew what her name was? A I never saw her before. o Dr. James came outaide and came to your assistance, correct? A He -- yes, because he was familiar with injuries. o adjacent unit? A o A Q And he's your neighbor that live. in the Yes. Did Dr. James call the ambulance? IUs wife called. How lonq did it take rrOll the tiN that Dr. 19 . . 1 James first came out until the ambulance arrived? 2 A I would have to take a guess, maybe 10, 12 3 minutes. I don't know. 4 Q I want to back up one moment. You indicated 5 when you left for this meeting that the weather was nice, no 6 precipitation. 7 A Yes. 8 Q On the way back -- by the time you got back 9 to the condominium unit, what was the weather like? 10 A It had started to rain in -- lightly rain in 11 Hechanicsburq when we left, but when we got into Carlisle it 12 was not raining. It was dry in Carlisle. 13 Q What was the condition -- when you exited the 14 car and started walkinq up the walkway, what was the status 15 of the walkway in term. of beinq wet or dry? 16 A Shortly after we turned to go back to the 17 development, it had started to mist just a little tiny bit. 18 So by the time we came in and went around the circle and so 19 on and so forth, she stopped the car, and I opened the door 20 and qot out, and I nev.r lfOrry about rain becau.. 1 Mve th. 21 kind of hair it doesn't matter, and so I didn't rush. I wes 22 just normally walking on the sidewalk when I went down. 23 Q Frca the ti.. you fell until the tin the 24 aabulanee arrived, were you laying on the qround that entire 2S ti..? 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Yes. Q The sidewalk the entire time? A Yes. Q In other words, were you able to get up on your own power? A No. Q All total, from the time that you fell until the ambulance carted you away, ho~ long would you say transpired? A I don't know. I would say maybe 40 minutes. But a way of being able to tell a little more accurately would be when did they notify my daughter to come to the hospital. Q Miss Connolly, what in your mind caused you to tall? A The shoe hitting the mud, the mud being a little wet, not wet enouqh to wash away the mud, just enouqh to soften it so that when the back of my shoe hit it down I went. Q You talked about mud. Were thes. these formed dirt plugs that everyone'. talking about that vere about the size of a pinky? A Yeah. Q NOW, you talked about shoes. I'm fJOing to Sl\OW you a pair of shoes. Are these the shoes that you verm 21 . . 1 wearing on the date in question? 2 A Yes, yes. 3 Q Have you worn those shoes since that date? 4 A No. 5 HR. HENNING: I would like to have those 6 identified and referred to as Exhibit No.3. 7 THE COURT: Are they marked? 8 HR. HENNING: Not officially marked. 9 THE COURT: Let her put a sticker on. Were 10 the first ones marked? 11 HR. HENNING: Yes, they were, Your Honor. 12 THE COURT: Let her put a sticker on one of 13 the shoes and mark it. 14 (Whereupon, Plaintiff's Exhibit No. 3 15 was marked for identification.) 16 BY HR. HENNING: 17 Q Dorothy, you had also talked earlier about 18 the fact that your dau9hter had retrieved your shoes and 19 that there was a dirt pluq adhered to one of the shoe.. I'm 20 90inq to show you this plastic ba9. Is that the dirt plu9 21 that you are reterring to -- 22 A Yes. 23 0 -- that you have been keeping for four years? 24 A Yes. 25 MR. HtmfING: t would like to have that 22 . . 1 marked and identified as exhibit number -- 2 THE WITNESS: Now, I don't even know if 3 that's all of the plug, but it's what was on the shoe. 4 HR. HENNING: I'm going to jump to Exhibit 5 No. 6 because I had some premarked by the reporter. 6 THE COURT: Is it marked yet? 7 MR. HENNING: No. 8 THE COURT: Hark it six. 9 (Whereupon, Plaintiff's Exhibit No. 6 10 was marked for identification.) 11 BY MR. HENNING: 12 Q About how far would you say you traveled up 13 the walkway fro. the street before you suffered this fall? 14 A Ten feet maybe. 15 Q Can you quantify for us how many of these 16 dirt plugs you were encountering every foot, or Whatever 17 dimension or type of measurement you want to put on it? 11 A Well, let's say that this i. part of the 19 sidewalk and that the sidewalk t. tht. vide. There would 20 probably be a plU9 here, maybe a pluq here, and a plU9 lip 21 there and a pluq here and a pluq here and a pluq then, not 22 terribly close, bIIt I have biV feet. 23 Q So you're sayIng, if I understand your 24 description there, and I want to quantity that for the as reporter, that you're talkinv, perhap., I think you 2) . . 1 mentioned, tive or six plugs in approximately a square toot 2 area? 3 A Yeah. 4 Q Haybe a little larger than a square foot. 5 And was the sidewalk, all the way up and down the sidewalk 6 and the street all the way up to your front door, strewn in 7 that fashion with these dirt plugs? 8 A I can't say that I noticed anything except 9 right exactly where I was. I can't say I looked up at my 10 doorway or anything like that. 11 Q But you did indicate earlier that when you 12 got out of the car you could see the walkway -- 13 A Yes. 14 Q -- and you aade a note that there were dirt 15 16 17 18 19 20 21 A The last thing I remember is the. taking .. 22 out of the .abulanee and qolnq throuqh the e_rqency rooa 23 door. Fro. that ti.. until the time they took .e Into the 24 x-ray r~, t don't s... to r....ber anything_ ':15 When t was in the .-ray rooa, 1 r......r pluqs? A Yes. But not when I returned. Q Where did the aabulance take you? A Carlisle Hospital. Q And When you first arrived at the hospital, describe for the jury what tr.atment they provided to you? H 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 H 2J 24 25 . . screaming at the top of my lungs each time they moved my arm to take an x-ray, and then apparently I passed out. And I don't remember anything until the following morning after the surgery. Q So we'll jump to cover my next question. You did have surgery the next day, correct? A The followinq morning, apparently. Q And even though you being not aware of it while this was occurring, did you subsequently learn that Dr. Thomas Green performed that surgery? A Yes. He was on call, I think. Q How long were you an inpatient at the hospital? A it's marked. days maybe. On my sheet of papers that's on the table, I can't remember offhand. I would say eight THE COURT: Why don't you lead her on that, if you know. BY MR. HENNING: Q Your notes we have indicate trom OCtober 11 to OCtober 25. Does that refresh your recollection? A Oltay. o So it wa. approximately. week. After you were rele.sed from the hospital. where did you go fro. there? 25 . .. "-",. ..- .. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2J 24 25 A I went to Leader Nursing Home, which is now Hanor Care. Q And how long were you at Leader Nursing Home? A That's also on there. Q We have records that indicate that you were there until approximately November 18. Does that refresh your recollection? A Probably. Q What type of activities and treataent were they rendering to you at the Leader Nursing Home? A While I was there, I went to rehab a couple of times a day, and what they were trying to get .e to do was to use my arm, which I don't do very well. And then they had some )tind of a machine that they put on the shoulder that made the shoulder move automatically. But that was very painful, and that didn't last too long. And then they -- becau.e I wasn't too .table I gues. from being in bed and so on, they were teachinlJ you how to qo up and down stepa, and then they had a pulley type thing that yo\l vue aupposed to pull with yo\lr ana. I wouldn't say that the can vas very, very thorough. o After thi. three v.ek stay or .0 at the ~b faciUt.y that you have identified a. Leader IluninlJ Moee, ""ere did you 90 froa then? A I v.nt back to my own home, and my da\l9llter n . . 1 came to help take care of me for awhile. 2 Q And how long did that occur, that your 3 daughter had to stay in your home? 4 A About five days maybe. 5 Q Prior to this incident occurring, did you 6 reside at your condominium unit on your own? 7 A Yes. 8 Q Who took care of your activities and dally 9 living like cleaning? 10 A I did myself. 11 Q And laundry? 12 A I did everything myself. 13 Q After this incident occurred and after you 14 got back home, were you able to take care of tho.. normal 15 activities of daily living like cleaning and cooking and 16 laundry? 17 A I can do the laundry and I can cook som.. 18 Q I'm not talking about now. I'm talking about 19 back in '94. 20 A W.Il, then, y.., I could do -- as I say, t 21 could do the laundry beCause the laundry's right in the 22 bathroom. 1 was able to do so.. COOking, but I'. atraid of 2J hot wat.r. 24 1 took vat.r out of the microwave one ti.., 25 and it tilted and went down ay front and t burned ./11-1(. n ,. . 1 I'm kind of -- I'm okay now, but at that time I was afraid 2 of water. And I could cook something simple, but I used a 3 lot of frozen things like those perogies and pasta things 4 and things like that, and they are very good. 5 Q The several weeks -- the first few month 6 period after this fall, were you able to bathe yourself and 7 clothe yourself on your own? 8 A I have a walk-in shower, and I have the hand 9 bars that I can hold onto to get in and out. What I can't 10 do in the way of dressing -- now I can put a top on like 11 this, but I can't put a top on where I have to twist and get 12 the other arm in. 13 I have not been able to wear a brazier for 14 four years, even buyIng the ones that close in the front, 15 because I couldn't qat .y arm back to qet .y arm into the 16 strap, so I just don't wear a bra. 17 TIlE COURT: Well, you are right up with 18 aodern ti.... It THE WITNESS: Y.ah, right. And it ia a qood 20 thing I had the breast reduction because, boy, I would be in n bad shape. 22 TIlE COURT; Next qu..tion. I couldn't 2J re.i.t. a. ay MIl. "tlQIl!tC1 25 Q ~fter beinq rele.sed from the hospital and u . . 1 Leader Nursing Home, did you continue to have follow-up 2 visits with Dr. Green for a period of time? 3 A Oh, yes. 4 Q What types of treatments did he render to you 5 after the initial surgery and the recuperation from the 6 surgery? 7 A Hostly, I would say, checkup type things and 8 movement type thinqs, how much had I improved or if I 9 improved with my right arm. 10 Q Did you underqo a course of physical therapy 11 as part of the treatment process? 12 A What would that be? 13 Q Physical therapy at Carlisle Hospital. 14 A Yes, and I also went to Alexander Spring and 15 had therapy there also. 16 Q How many -- What ti.. period would that 17 therapy run? 18 A The therapy at the hospltal was quite 19 extensive. I went three days a week. I had the 20 tranaportatlon van pick .. up, and then I would walt until 21 my dauqhter vas off work, and ahe would then take.. back 22 home. 21 Q And wtuat types of llocSal1tle. would they have 24 you dolnq at physical therapy, in other word., What typetl of 2S activities and thinga? 2t . . 1 A At the hospital? 2 Q Yes, the hospital physical therapy. 3 A A lot of hot packs, and as I say, trying to 4 pull on the pulleys and going up and down the steps, and of 5 course this special machine that didn't belong to the 6 hospital but apparently -- because when the man came to pick 7 it up to take it, that was when I found out that it didn't 8 belong to the hospital. It was something that they were 9 using that they were getting from somebody else, and it 10 moved the shoulder. 11 Q How many months did you undergo the physical 12 therapy at Carlisle physical therapy and Alexander Spring 13 Rehab? 14 A More than half a year. 15 Q As part of your treataent process, did Dr. 16 Green prescribe medications for your shoulder? 17 A I took a lot of pain medication. 18 Q Do you know the na_s of some of th_ at this 19 point? 20 A I've tried the. all. I've had Percodan, n Percocet, Darvocet, Roxicet, Tylenol 3 and 4. The IIOSt 22 effective i. the Tylenol. 23 Q Following this injury and the sUl'9ical at p.-oc>ldure, were you required to wear a device, any type or a 25 strap or a aling on your arm for aWhile? 10 . . A Yes, I have a sling. Q And how long were you required to wear that sling? A Well, I'm kind of bullheaded. I didn't wear it any longer than I absolutely had to. 0 Do you remember how many weeks or months you 1 2 3 4 5 6 7 may have worn that? 8 A Haybe a month. 9 0 In October of '94, you were retired from 10 employment, correct? 11 12 13 14 15 16 17 18 A Yes. Fer oYer 30 years I tauqht En;liab, 19 speecb, and drama to 11th and 12th graden. 20 Q After you retired 1n 1912, hOW d1d you spend 21 your day., your retireaef\t days? U A In the w1ntu I went to Flor1da, and of 23 course, as t eay, I apent a.ven days 1n the nter, and I 24 would spend .. hip .. five twu.... at a t1.. beCa"" I lcwe 25 to tt"U4 ""tel'. A Yes. Q When had you retired? A When? 0 What year? A '82. Q And .. I correct that you worked as s actlool teactler for a number of years? u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 :22 ;u :u 25 . . We did a lot of entertaining. By entertaining, I mean inviting people for dinner or them inviting us for dinner or us going out for dinner or going to a movie or maybe some function, an art show or something like that in the vicinity, shopping, of course, reading. I'm an avid reader. I have hundreds of books. Q Did you develop any craft type activities? A Yes. In 1982, I decided to take some acrylic painting lessons, and I didn't do too badly. And then I went from there to oils, and from oils I went to watercolor, and I got to be pretty good. In fact, I brought a couple of samples if somebody would like to see them. Q We'll do that in a moment. The paintinq, did you go to art classes initially? A I went to art classes, yes. Q If you can, guesstimate for us how many paintinqs would you say you've made since you've developed this talent or realized you had this talent? A Well, I have two dwellinqs, and my daughter just made.. a quilt and we don't know where to hang it because we don't have any space there'. that many palntirllcJtl. Q Are you able to quantify for us? A I would ..y that on the walls there mi9ht be 50. Q After this lncid~t occurred vith yo\lr H l ~ .--...-- ..,",- . . 1 shoulder and you recuperated from the initial trauma and the 2 surgery, were you able to resume painting? 3 A No. 4 Q Have you ever been able to resume paintinq 5 since this fall? 6 A I can't hold onto the paintbrush long enough. 7 Hy hand goes numb, and I can't control the brush. 8 Q You also engaged in cross-stitchinq? 9 A Yes, I do cross-stitch. But the reason why I 10 can't do that is you bring your thread up and then you go 11 under and up and under, and I do piece. that are rather 12 larq., and I couldn't manaqe it. 13 Q You did cros...titching before this injury, 14 correct? 15 A Oh, ye.. 16 0 Since recuperation from thi. injury, have you 17 bean able to beqin cro....titching? 11 A NO, I have not. 19 0 YOU mentioned .vi_ing. that you Qre an avid 20 _i...r and .wu almost every day of the year. Have you 21 been able to reau.. _t..ing after the initial recuperation 22 proce..? 2] A 1 can't .vie at all. I could oat into the H "tar. but I can"t get out of the vater. And 1 eve bad a J5 1.. ~ an old 1.. Mde into. vaterproofed 1.., but it )) . . 1 almost drowned me because it wants to float. So after that 2 I didn't even try it anymore. 3 I need -- becaU8e of one leg, I need my arms 4 to help pull me up the railing. And since I only had the 5 one arm and the one leg, and I couldn't use this arm and I 6 couldn't use the right leg, I couldn't get out of the water. 7 Q Now, you mentioned you had this amputation, 8 the artificial limb, since you were six. 9 A Six. 10 0 Prior to this fall, you were swimminq 11 reqularly and actively, correct? 12 A Oh, yes. 13 Q Did the fact that you had the artificial limb 14 on the right leq inhibit your ability to swim? 15 A Not at all. In fact, I'. a good swimmer. 16 0 And you have two children, correct? 17 A Two, yes. 11 Q And with that artificial limb you ware abl_ 19 to vet yourself throuqh school, you graduated trOll 001189- 20 and qot a deqr.. in t..chift9? 21 A Oh, yes. 2J Q You raIsed two children? 2) A V... 24 Q Did yo\l e~ in aft)' sportlft9 acUvlU.. 2S When you ven in coU.~? u . . 1 A In college and high school. 2 Q And what were those sporting activities? 3 A Hostly swimming and basketball. I did play, 4 you know, some golf and -- well, normal things that you 5 would have in college. I competed in all of the sports that 6 Penn state required. 7 Q Did you actually play on any collegiate 8 teams? 9 A ~~~ 10 Q Did you play on any collegiate teams, any 11 sportinq activities? 12 A I was on some of the teams but I wasn't 13 captain. I was captain of the high school teams. 14 0 And what type of sportinq teams? 15 A That would be mostly basketball, and we had a 16 swimming pool in my high school and we swam every week. 17 0 Prior to 1994, with this artificial liab did 18 you have trouble getting around? 19 A Never. 20 0 Did you have trouble falling? 21 A Never. 22 0 You talked about thAt you entertained 23 revularly before this incident. How baa your ability to 24 entertain people in your hoae been .frected by tbe ahoulder 25 injury? 15 .. . 1 A I don't entertain at all anymore. 2 Q What activities involved with entertaining 3 are you unable to perform? 4 A I belong to a card club, and we meet at each 5 other'. homes. And we used to serve dinners, and then we 6 went from that to just serving desserts. Well, they 7 realized that I have a problem. So on the day that it's my 8 turn, we go to a restaurant and I pay for the soft drihks 9 and the desserts, and that's my contribution to the 10 entertaining. 11 Q What symptoms and problems do you continue to 12 experience on a reqular basis with your arm and shoulder 13 despite all of the treatment efforts? 14 A Well, I don't know if you can see, but I 15 can't qet my arm up any hiqher than that. So What we've had 16 to do in .y ho.., we've had to switch plates and thinqs -- 17 anythinq that's on the top shelf or beyond the very front of 18 the second shelf I can't reach. So my dauqhter has 19 rearraft9ed the shelves of my cabinets eo th&t I can 'let to 20 them; otherwise, I can't reach them. 21 0 That I quess deals with the IIObllity and 22 flexibility. 00 you have any other sYIIPtoa. or probl..., 23 paln, .ssociated '11th your are? H A OIltaide of the paln, severe pain? It it n _~.t rot' pain pUta, I don't tu\ov vIwlt I tIO\Ilct ft. ht t ,. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2:l :ll l. 25 . . cannot lie on my arm at all and it -- like, it goes numb and it's like a painful numbness. I don't know how you explain it. But you can you know that it's numb but you know that it hurts. Q Are you able to lift things with your right arm? A Pardon? Q Are you able to lift and maneuver things with your right arm? A No, I don't lift anything. I can do things with my left arm that I never could do before. I can even write a little bit with my left arm. Host of like stirrinq things in cookinCJ and things like that I do with my left arm. I can do some things with my riqht arm providing I don't have to go any hiqher than thi., and I don't lift anything. Q Miss Connolly, I show you a couple documenta. I'. goinq to .how you a document that I'm going to fir.t identity as Plaintiff'. Exhibit 4. This is a eoapilation that our office had prepared, so that yo\l are avare of Where that came trOll, and it it_he. the various health care PToviders and the dollar amounts for different .ervice.. 0\)4t. thi. outline the varIous h.alth care provi"n that you've encountertld and with respect. t.o cIollu aaounta tMt yo\l've Incurrtld for tre.tmel'lt. fOr yo\lf' rlq1lt 11 " . . 1 shoulder injury? 2 A Yes. 3 Q And am I correct the total shown is 4 $28,382.49? 5 A Yes. 6 Q And I'm going to show you a second exhibit 7 which I'm going to refer to as Plaintiff's Exhibit No.5, 8 and this was another compilation that our office had 9 prepared with information you had provided to us. 10 I want to first focus on the chart on the top 11 half where I have Dorothy connolly miscellaneous expenses, 12 and there are various items noted there. For example, it 13 talks about bath seats, toilet risers, adjustable beds, lift 14 chairs and a ramp are some of the main it... that total 15 U,238.00. 16 Can you explain to the jury what some of 17 these different ite.. are and Why it was necessary for you 18 to incur the expenses for them? 19 A Wen. with the bath seat, when I take 1r1 189 20 oft to take a bath -- in fact, I can't take a bath. t haYe 21 to t&lte a shover. I can't 98t out of the bathtub. 1 can 22 ,et in the IMithtub. I can't 98t. out of the bathtub. U Anyhow, so I bve the bath seat. 1n the shover. ~. The heating pad i. tor pain. ~ 11ft ~5 cbair -- t.he 11ft chaIr i. . qod.end bee.v.. t kind ot ~ u . . 1 both arms to get up, and with the lift chair it gets you up. 2 The toilet risers, if I go out here and sit 3 on the toilet in the ladies' room, I have to scream for 4 help, somebody to get me up because I wouldn't be able to 5 get up because I need both arms. 6 The ramp, I had two very high steps coming 7 out of my garage into my family room, and I had a ramp put 8 in to make it easier for me to be able to get in and out. 9 The adjustable bed is another thing. It 10 helps get me in and out. This arm is not of too much value. 11 0 Did you have problems with any of these -- 12 you think of these as simple everyday activities, gettinq 13 off of the toilet, gettinq out of bed and things like that. 14 Did you have problems with those before October of 1994? 15 A No. 16 0 Despite the fact that you had that artificial 17 limb, you were able to do all those thinqa but for the 18 problem with your shoulder? 19 A Yes. I did have an adjustable bed before 20 that, but I didn't buy it because I needed it. I just 21 bought it becau.e I thouqht it would help vith reading in H bed and things like that, and it's a good thing to have. If 2) you can afford it, fina. 24 0 And then there'. ml.cella~. e.,.ns.. at as the botta part of thla chart When it talks about a cleaning 19 . . 1 woman and various dates and a total of $285.00. Can you 2 explain to the jurors what the charges for the cleaning 3 woman involve? 4 A Well, I would love to have a cleaning woman 5 every month, but for some reason or other, I don't know, 6 it's very, very difficult to get a cleaning woman in 7 Carlisle. I'm presently going to have one the end of this 8 month, but my daughter and friends have helped me out a lot, 9 plus then some of these cleaning women. 10 The woman that vas so very good she hurt her 11 back, and then she couldn't help me out. But I can't do my 12 own cleaning. I can do a little dusting with a aagnetic 13 duster, but I can't, like, polish furniture or run the 14 sweeper or things like that. 15 0 Prior to October of 1994, was it necessary 16 for you to have friends, relatives, or outside people do 17 your laundry, cleaning, and cooking? 18 A No, never. 19 0 Dorothy, you mentioned that you had some art 20 pleces that you vanted to .how, and jllst so the jury can 21 understand, this was an activity you vera engaging in, it 22 wasn't something that maybe I would create like a paint by 21 numbers. Actually. vhy don't I 1list brIng the thing. up. 24 A The.. are two watercolors that 1 didn't 25 bother having tr..-d. Ttlat is c~-stitctl. 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 II 19 20 21 22 2) 24 n . . o Well, let's talk about -- this is a watercolor, this one here? A Yes. Q Because I'm not very artistic. I wouldn't know what medium that is without examining it. THE COURT: Let me see these pictures. BY HR. HENNING: Q And these are ones that you have done, Dorothy? A Yes. THE COURT: I just wanted to see the.. BY HR. HENNING: Q And this is a landscape scene that you have done? A Yes, that'. also watercolor. o I'm qoing to take the. sOmewhat out of Order. This nicely frUl8Cl it_, is this What we call cross-stitching? A This is cross-stitch. 'l'1l1 COURTI 'Up it arOW'lcl hue. ..cond. Okay. 'l'IR VI'l'IIESS: And that's ay favorite piec.t. av .., It1IIIIII1G I Q And WhAt typll of Mdium i. this? A That'. oU. u 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2) 24 n . . 1 2 3 4 1994? o A Q And you've created all of these, correct? Yes. These were all created before October of A Yes. Q Have you been able to do either cross-stitch or any of these paintings, whether it's watercolor or oil base, since the fall? A No. Q The last thing, Dorothy. We're going to have Dr. Green present hie testimony and explain in detail what was done with the arm. If you could, I would like for you to just roll your sleeve up and show the jury your shoulder. Are you okay with that? A I don't know if we can do it. Yeah, I guess we can do it this way. I'. cut fro. here to under the arm. Can you see it? Q Y.s. A It's a very qood sear, excellent scar. Q Okay. It i. your understanding that you have some type of a metal device in your arm? It. 'ardon? o You have some type of metal rod inside your an? " "e.. lie sa14 it vas . titanium nplaceaeat. 42 ~ .,,- -...- .,--. . . 1 He said that when I went through the airplane security 2 system I was going to set everything off. 3 Q How did you fair coming in here today through 4 the metal detector? 5 A Well, we came the back way which was the 6 wrong way to come. 7 Q And that metal rod is still inside your arm, 8 is that correct? 9 A Yes, that will always be there. 10 HR. HENNING: I believe that's all I have, 11 Your Honor. 12 THE COURT: It is a good place to stop for 13 the day. Ma'am, you may step down, and take your time. 14 THE WITNESS: Okay. My dauqhter says I'm 15 qoinq to qet a blister on my rear end some day. Can I say 16 so_thing? 17 THE COURT: Not anyaore. 18 MR. HENNING: We'11 put you back on the It witn.ss stand tOllOrrow for so.. more questions. 20 THE WITNESS: I had back surqery. 21 THE COURT: Okay. It ia a convenient place 22 to stop. There vill be so.. cross examInatIon of the 2) plaintiff tOllOrtOW. V. wUl ,et to soae of the other H te.Umony. You have only heard pan of tM e..e. Put it n out. of your .ind tonl4Jht. IMve. nice evenlnq. co.. baCk u . . 1 July 9, 1998, 8:49 a.m. 2 Carlisle, Pennsylvania 3 4 THE COURT: Next. 5 HR. PRICE: Your Honor, with the hope that 6 this might save a little bit of time, may we approach the 7 bench? 8 THE COURT: Yes. 9 (Whereupon, the following discussion 10 was held at sidebar:) 11 MR. PRICE: Your Honor, this lady has an 12 extensive medical background, and rather than go through 13 that and waste some time, I would like to solicit from Mr. 14 Henninq a stipulation that the only medical testimony he 15 will be offering is that as a result of this fall hi. client 16 .ustained a fractured shoulder for which she required 17 surgery, and that is the only medical problem that she has 11 as a result of this fall. Because she's here with a walker, 19 she's significantly bent over, .he has a lot of apparent 20 obvious medical deficiencie., I would like to rather than 90 21 into detail and inquire about all those qet that type of 22 stipulation from Mr. Henning. 2) 1111 COURT: Is then any claim that the 24 ahoulder injury aqgravated any pree.i.tinq condition.? 25 D. HDlMINC: Well, that would bt, 1 9\le... 4S . . 1 their contention. No, I mean, the shoulder injury was a 2 traumatic nature. It speaks for itself, and the doctor will 3 talk about that. I mean, I think the doctor had indicated 4 that there may have been some type of arthritis in the 5 shoulder before this that she has in the left __ 6 THE COURT: But as far as the recovery in 7 this case, despite whatever other -- she actually said 8 before she was in pretty qood health. She has had some 9 problems she's developed. We're dealing here only with the 10 claim seeking recovery for the direct result of injuries 11 fro. the fall to the shoulder? 12 MR. HENNING: Correct. 13 THE COURT: So stipulated? 14 MR. HENNING: Correct. 15 MR. PRICE: Thank you. 16 (Whereupon, the discuasion at aidebar 17 was concluded.) 18 THE COURT: CAn we put that on the record? 19 MR. PIUCI: 1 VOUld like to do that, your 20 Honor. 21 THE COURT: Rather than defense counsel 22 further delving into the past medical hiatory of plaintiff. ~) there'a been . stipulation aiaplY in this c... that the 24 plalntiff is aeek1ng daaaq.. aolely aa a result of 1n'uri.. 25 to the IIboulder caused by the fell thet OCCUl"l'ed 1ft thl. 46 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 :13 24 :IS case, and we are not dealing with other physical problems she may have or have had involving other areas of the body over the years. So we are dealing with the results of the injury to the shoulder as a result of the fall. So stipulated? HR. HENNING: Yes. HR. PRICE: Yes. Thank you. CROSS EXAMINATION BY MR. PRICE: Q Good morning, Hrs. Connolly, how are you? A Okay. o Good. In your townhouse at the condominium, how long have you lived there? A Since 1987, April of 1987. o And the front door of the house, the one that you used on the day of your fall, if I recall correctly, you co.e out of the front door on sort of a sidewalk that is shaped like a Y, the first part services your unit and the other part of the sidewalk services Dr. Jone.' unit? A Dr. James, y... Q Dr. Jam.a. Thank you. And then tho.. sidewalk. join like in the st.. of the Y and lead out to a public sidevalk that runs parallel to Strayer Drive, ia that correct? A Y.s. u . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 U 22 U 24 2S Q Did you -- strike that. Which exit and entrance to your unit did you typically use? A I typically go through the garage. Q Would that be then situated to the rear of the house? A At the rear. Q Is there a driveway or a street that leads from your garage out to strayer? A No. Q Where is your qarage, the street from your qaraq_ go to? A It's a circle and all of the qarag_ doors open onto this macadamized circle, and you can either go left or right and that brings you out to strayer Drive. Q 00 you recall whether in the years that you have lived in your unit up to the day of your accident had you ever had occasion to use the front door and the front entranceway? A If at all, very, very ..ldom, and it miqht have been to lJO out and maybe pull out a W4ld or soaethi"9. But I actuaUy cUd not work in the yard, and I didn't do anything out front. o WOUld it be hir to ..1 that th.n in the ti.. that yo\l have lived in your unit lip to the day of the accident rarely, if ever, cUd you liSe the front door and the .. - -....... -- . . 1 sidewalk that serviced the front door? 2 A Yes. 3 0 Now, between the time that you first moved 4 into your unit and the day of your fall, had Hrs. Corbin, 5 Ruth Corbin, ever come by to visit you? 6 A Probably because of card club. We had been 7 playing pinochle together since 1955, and we meet at one 8 another's homes. 9 Q So she is a member of that group that you 10 told us about? 11 A She is a aember of that group, yes. 12 Q Before your accident when you would have 13 those meetings of your card club at your house, typically 14 would the other women coae to your house and go in through 15 the garaqe? 16 A No, they would coa. in the front door. 17 Q t se.. Let.. take you now to the day of the 11 accident. My understandinq is that someti.. in the IIOrning 19 you h.ard activity outside and you knew that it was the ..n 20 or a aan aerating the yard? 21 A Yes. a.cause of the location of my bedrooa, 22 t would know if eoaeone was out in front. 2) Q Ily the way, wbere do you receive ywr ..U? 24 A There is one of ~. steel pcMlt boxes in the ~5 beck with the numbers on them, and it'. Yery cloae to my 4t , .., -'- '- . . 1 garage door. I'm probably the closest one to the mailbox. 2 0 Do you recall within a week or ten days of 3 your accident seeing some type of notice posted at the mail 4 kiosk indicating or advisinq the residents that there was 5 going to be soil aeration services performed sometime in the 6 near future? 7 A No, I don't recall havinq seen that. The 8 only thing that I recall ever having seen was when they were 9 going to macadamize, let's call it, the alleyway, and they 10 asked us all to take our cars out of the qarage if we were 11 going to need them and park them out front so that we 12 wouldn't drive over the new .acada.. That's the only notice 13 that I can recall. 14 Q Do you recall the time Mrs. Corbin arrived at 15 your house? 16 A It had to be someplace around the noon hour. 17 I can't precisely recall what time the .eeting was, I think 18 somewhere around 1100, and we, of course, had to drive to 19 Mechanicsburq. And we were on ti.. or ahead of ti.. because 20 the m.eting had not started until attar we got there. 21 Q Do you recall vhen Hrs. COrbin came into 22 your house and before then the two of you left, do you 23 reeall vhether or not ahe made any co..ant about the 8011 24 aeration or there being plUV8 of dirt on the sidewalk? 25 II No. 50 . . 1 Q So then the two of you left your house by the 2 front door to go out to her car that was parked on strayer 3 Drive? 4 A Yes. 5 Q And during the course of your travel down 6 your sidewalk before it got to the public sidewalk, you and 7 Mrs. Corbin made comments to each other about the presence 8 of these dirt plugs on the sidewalk? 9 10 11 12 13 14 15 16 A No. 17 0 Did either of you make any comments to the 18 other about aVOiding steppinq on the dirt plugs? 19 A No. 20 Q Did you have any difficulty with your footing 21 as you walked froa the house out to her car? 22 A Mo, because I was holding onto her an. 23 Q And in turn, cUd Mr.. COrbin, at least to :l4 your knowl~., have any difficulty with ber footi,. aa She as valted out to the car? A Yes. Q Do you recall any other type of co...nt or the nature of the comments that the two of you exchanged regarding the dirt plugs? A No. 0 For example, did either one of you uk. any cOllllllents about any safety concerns that you had? 51 . .; -....... ~- . .. 1 A I don't think so. 2 Q Specifically, neither one of you tripped, 3 slipped or fell? 4 A No. 5 Q Now, if I might just regress for a moment. 6 You had told the jury earlier yesterday at the age of six, I 7 believe it was, that you had an amputation of a portion of 8 one of your legs? 9 A Yes. 10 Q And you now wear and you h.ve since the aqe 11 of six worn a prosthetic d.vice? 12 A I _.r What Und of prosth.tic? 13 Q Prosth.tic,.n artificial leg? 14 A Ye., yes. 15 0 It w.sn't n.c....ry for you to u.. a can., a 16 crutch or a brae. or anything like that? 17 A No. 18 0 Did you h.ve any difficulties back at the 19 ti.. of the accident in w.lking independently? 20 A No. It h.lped if you walked and hold onto H somebody. as it does .11 the ti.., you know, Uk. husband 22 and wife or something 1 Ute tb&t. but 1 walked perfectly tine 23 by ayae1f. '4 Q t'. toint to 9'tt to the point. Had you, n let'. ny, within a year 01' two of your .ccident b&d any 'U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2J H ~5 . . difficulty with your balance? Had you had any problems where you had tripped or fallen because of your artificial leg? A No. Q Aqain, on your trip out to Hrs. Corbin's car, did you have any difficulty seeing these dirt plugs on the . idewalk? A No difficulty, no. They were there. That's all, you know, they were there. Q They were lying out in the open? A Yes. Q Readily visible? A Yes. Q They weren't obscured or hidden by anything? A No. I figured that they had worked on th_, it ",a. now the lunchti.e so they -- from past y_rs you notice that the truck vas gone and so on, and they probably went to McDonald's or someplace and had lunch and then ca.. back later. When we left, there waa no one there at that particular tiae. The truck wa. not there, the _n _re not there, but they had been there earlier because I heard the.. car, o cUd you In the cour.e of walkincJ out to Mrs. corbin'. intentionally or consciOUSly avoid .teppift9 on 53 . . 1 these dirt plugs? 2 A I don't recall. All I know is that they were 3 there and I walked. 4 Q Even though you may not have made a comment 5 to Hrs. Corbin in this regard, did you have any concerns in 6 your own mind about safety because of the presence of the 7 dirt plugs on the sidewalk? 8 A I wasn't thinking of it at that particular 9 time. I think we were probably talking about the meeting 10 that we were going to, but I wouldn't swear to that either. 11 That's been four years ago. 12 Q Now, was this soil aeration something that 13 was done on an annual basis? 14 A I recall two years of it. I do not recall 15 other years. I recall that year and either the year before 16 or the year before that are the two that I can recall. It 17 could be that I wasn't at home at the time that they did it 18 or something, but they are the two distinct ti... that I 19 recall the aeration. 20 Q Let me focus your attention on the first ti.. 21 that you were aware that there was aome .011 eore aeration 22 going on. on that occaaion. Whether it be a year or two 23 yeara before your accid<<nt. did you encounter any of the.e 24 dirt pluqa anywhere on the pre.i...? 25 A I cUd not 90 out the front door at all. A 54 . . 1 few days later -- I have a flower box in the back off my 2 deck, and I went out and you have to walk in the grass, and 3 my foot slipped on one of the aerated plugs that had 4 hardened like a cigar. It looked like a cigar maybe about 5 that long, and when ~y -- it was my left foot. When my left 6 foot hit it, it rolled. Hy foot rolled. It threw me maybe 7 off balance a little bit, I don't remember, but maybe, but I 8 didn't fall. 9 Q Do you remember on that occasion making a 10 comment to yourself when your foot rolled on this dirt plug 11 that it was dangerous? 12 A Well, at my age, yes, you notice things that 13 could cause trouble. 14 0 But specifically do you re...ber making a 15 comment to yourself on that occasion that the dirt plugs 16 were dangerous? 17 A I can't say that I specifically remember 18 making that kind of a coament. I just kind of thought it 19 was dumb. 20 MR. PRICE: May I approach the witnes., Your 21 Honor? U THE COURT: Yes. H MJl. PRICE: TMnk you. 24 IY MJl. PRICEI as Q Mrs. connoUy. do you fnr-wr tl\at we tooit 55 . . 1 your deposition in July of 1997? 2 A Yes. 3 Q Do you recall where that took place? 4 A That was in Harrisburg. 5 Q You were represented by Hr. Henning at that 6 time? 7 A Yes. 8 Q Let me show you the deposition transcript 9 that was prepared by the court stenographer following that. 10 I'll tell you what, I'm going to give you the bigger one. I 11 would like to call your attention to page 45. 12 A Yes. 13 0 And actually, I'm sorry, let me go back to 14 the previous page, page 44. Would you turn back to page 44. 15 At that time I asked you so.e questions about your prior 16 experience with a dirt plug back the year or two before your 17 accident. 18 Beqinning at line 19 on paqe 44 I ..ked you, 19 "All right. Can you tell .. to the best of your 20 recollection vhat was said by each of you?" AtIlt you started 21 to uy there, you began to answer that question on 11M 21 ~2 as follows, "That they were there and that they vere -- they :u aboulclnft be there. and that they were an eye.ore." AtIlt ;J4 then I couented on the tact that they hed had tho . yssr 2S or two before that. SI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2J 24 25 '. . . A Yes. Q "And I had not gone out the front door, but I did know" and this goes on now to page 45 -- "I did know that they were out in the lawn back when I went out to take care of my flowers. They had hardened. They had dried." And then you continued with your answer as follows. "And when my foot hit one of them, my foot rolled, and it was my left foot, and I remember commenting to myself that they were dangerous." Do you recall now saying that during your deposition? A Yes. Q Thank you, Mrs. Connolly. I'll take that back. Now, aqain, as you were walkinq -- you and Mrs. Corbin were walking out to her car parked along the curb at Strayer Drive, do you recall having any difficulty with your footing? A Did I have any difficulty with my footing then? o Yes, ma'a.. A Not really. o Vell, let.. inquire about that. You uy not really. What do you .ean? A \hall, 1 didn't step on anythh.,. I jumt walked nonaally. o Okay. Now, at the ti_ you left JOV \mit to n ..._.~ -- . . 1 go to Hechanicsburg, do you recall what the weather 2 conditions were like? 3 A It was nice. It was about noontime, and, of 4 course, the sun was out and it was a nice, warm fall day. 5 Q No rain or precipitation? 6 A No. 7 0 Do you recall then you and Hrs. corbin then 8 left and you went to your meeting in Hechanicsburq? 9 A (Witness nodded head yes.) 10 Q Is that correct? 11 A Yes. 12 0 Can you give us an approximation as to how 13 long you were at the meeting before you returned? 14 A I don't know for sure. I would say two 15 hours. 16 0 Now, When you ca_ back to carllsle and qot 17 to the vicinity of the condoainium units, do you recall what 18 the weather was like at that ti_? 19 A It had just started to aist a little, and you 20 can't call it rain. You can't call it . ...11 shover. It 21 wea j\Wt _ttish. I don't know vbat word to use. It _an't 22 .~tblh9 that you would run to qet out of the rain. 23 Q And, In fact, If I recall correctly, In your H deposition you incUcated that to the beet of yo\lr ..oory 2~ "n. COrbin didn't ewn Mve to u.. her windshield wipna? sa . . 1 A I don't think she did. I think she -- I'm 2 not positive, but I thihk she might have the automatic 3 windshield wipers that go off and on according to the amount 4 of moisture. I won't swear to that. 5 0 But your recollection is that the windshield 6 wipers were not in use? 7 A I don't think so. 8 0 As you approached Strayer Drive to the -- 9 again, the sidewalk that would lead to your front door, did 10 Mrs. Corbin stop at the curb? 11 A Yes, she stopped there right where the two 12 concrete blocks are placed to pass over the grass. 13 Q Was there any discussion between yourself and 14 Mrs. COrbin about her taJcinq you around to the back of your 15 house at the garaqe? 16 A No, because without the qaraqe door openers 17 you wouldn't be able to qet in, and of course the opener 18 would have been in my car, and my car was in the qaraqe. 19 Q Now, let .e explore that a little bit 20 further. At the rear ot your bouse, other than the 9ar..- 21 door, i. there any other type of door? 22 A No, it's a double car tara.. door. 23 Q So the only entrancu and nit tklora to ywr H unit n. the ,ata'8 doon at the rear and the door at the 25 frontl 59 . . 1 A Yes. 2 Q Are there any other doors that allow you to 3 have access to your unit? 4 A No. 5 0 As you -- as Hrs. Corbin, I guess, pulled up 6 to the curb, before you got out of her car were you able to 7 see anything on the sidewalk that led to your front door? 8 A I didn't see anything, but I don't recall 9 looking either. 10 Q As you got out of her car and started to walk 11 across those, I forget what they are called, but those two 12 little pieces of concrete before you get to the public 13 sidewalk, did you see anything on the sidewalk? 14 A Not on these two little blocks. It wasn't 15 until I started going past the public street -- I don't know 16 what you -- the coaaon sidewalk that I looked down and saw 17 th... 18 I have a tendency to looJt down a. I "alk. I 19 find more money than you can believe. I have little 20 containers at home tull of coins ~nd stuft, and my dauqhter 21 won't let.. pick the. up if their head. are -- I torqet. 22 one's lucky and one isn't lucky, and she won't let.. pick 2) them up unle.. they are the lucky ones. 24 Q Let .. show you . ptIot09raph Plaintiff's 25 EXhibit No.2. Are you able to see it at the anqle that I'm .0 . . . 1 holding it up? 2 A Yes. 3 Q Down at the bottom of the photograph would 4 appear to be some black macadam. Would that be Strayer 5 Drive? 6 A Yes. 7 0 And then there are these two squares, those 8 are the pavers? I think they are called pavers. 9 A Okay. They are the pavers. 10 0 When you got out of the car and were walking 11 across the pavers, at that point did you notice any dirt 12 pluqs on the sidewalk leading to your unit? 13 A No, I don't think I looked. 14 Q And once you got to the public sidewalk that 15 runs sideways across this photograph frOm left to ri9ht, 16 "ere you able to see any dirt plugs on your sidewalk? 11 AVes. 18 0 Okay. And then you beqan to walk up your 19 sidewalk, and then had you continued you would have 90tten 20 to this split and then 90ne off to the left? 21 ... Mad I continued, yes. 22 Q And had you CJOn& off or anybody vent oft to 23 Uwt ri9bt. that's Uwt spUt U1at snvices Dr. J..... \miU 24 ... Ves. Y..' 25 0 I !JOt bis name riql'tt that U.., didn't n f1 "" ~ 1 A Yes. 2 Q Once you got out of the car and started to 3 walk across the public sidewalk and when you first saw that 4 there were dirt plugs on, I will call it, the sidewalk that 5 services your unit, you were able to see dirt plugs? 6 A I was surprised that they were still there. 7 Q Did you make some kind of a comment to 8 9 10 11 12 13 14 15 16 17 Q Was it your f.eling or concern that if you 18 stepped on one of the.. dirt plug_ that you alqht fall? 19 A That I might have fallen, yes. I'v. got 5 20 foot 7 inch.s, 190 pounds to get down on the ground, end so :1 you're a little car.tul. 22 0 OJtay. 1 think you also s.id earlier 2) yesterday and also in your deposition that .~tftlnv about :4 the Und of hell' you ~.ft you're not putlc..aluly cone..-rIM 2' about 98tting vet 1n ta. rein? yourself at that time? A To myself, yes. Q What did you say? A I've got to watch where I step. Q And why was that? A I have big feet. Q But what was your concern about watcbing where you step? A Because I don't want to fall. 6l 1 2 3 4 5 6 7 3 9 10 11 12 13 14 15 16 17 11 19 20 U 22 2) at n ~ -.. A That's right. Q And I think in your deposition you also said something about the rain doesn't concern you, it doesn't make you hurry or scurry or anything like that? A It doesn't because I have naturally curly hair. o So that the fact that it was misting at the time didn't cause you to hurry up to try and get to your front door? A No. o You were not in a rush? A No. Q Krs. Connolly, can you approximate for us after you had gone across the public sidewalk and qon. onto the sidewalk leading to your unit, do you recall approximately how far you had gone up your sidewalk before you feU? A It could be anywhere between aaybe 7 and 10 fe.t. o Let .. show you a9aln this Plaintiff's Ixbibit No.2, the photoqraph. Do you ... here a. you're CJOing up yo\lr sidewalk there i. a~re.ntly the shadov of a tl'M ? A'... o Let.s un tAat shadow a. " ...fef"lN'Ce point. II .. ..- ----- .....-.- . . 1 Had you gotten to the shadow or beyond the shadow? 2 A I would say approximately at the shadow. 3 Q And where you fell, were you on the left side 4 of the sidewalk, in the middle, or the right side? 5 A I was more central right, more to the right 6 but not definitely to the right, a little more centralized 7 right. 8 Q Perhaps right at the tip of the shadow? 9 A About there, yeah. 10 0 Okay. And did you continue as you progressed 11 up the sidewalk before you fell to remind yourself to watch 12 where you are going to avoid stepping on the dirt plugs? 13 A As I say, I have a tendency to look at the 14 ground as I walk. I knew that the plugs were there, and I 15 knew that they could be dangerous, and so I vas watching 16 where I was q01ng. I didn't step on the plug with the front 17 of the shoe. It wa. the back of the shoe that I didn't see la that caught the plug. 19 0 Is it fair to say that at the time because it ~o vas only aisting that the plugs w.re still dirt? 21 A I would say that they were wettisb, lIOist, 22 not cupletely dry, phas the fact that they had been newly 2) aerated froa u.. IJround which would ba.,.. also made them a H llttle on the vet side becauee they vere tresb. U 0 1'1\ey wt'e not certainly lI\ld4y? u . . 1 A No, they weren't -- they weren't like 2 flattened out or anything. They were symmetrical. 3 0 They hadn't dissolved or they weren't in the 4 process of dissolving? 5 A No. 6 Q They were still in their cylindrical form 7 like a cigar butt? 8 A Yes, yes. 9 Q Can you give us any kind of an idea or 10 approximation of the number of dirt plugs that you might 11 have encountered or passed from the point where yo~ entered 12 your sidewalk to the point where you fell? 13 A It's not something that you count. 14 0 You knew they were there? 15 A I knew they were there. 16 Q You weren't taking an inventory? 17 A No, I was not, and I have no idea if there 18 were 5 or 50. 19 0 Do you recall whether or not the.e dirt pluq. 20 _re located towards the sid.. of the eid.walk or _re they 21 more ,ener.l in their location? 22 A I would say ,enerd. If yo\l would take a :U hencltul ot penni.. and throw th.. lip in the air and have 24 th.. come dovft, they would 90 in lIiff....at directiON" 25 hU, th3t.'. the _y the aud plUlJfl WOUld ba... '10M ia " ~I_'~. - ~ - 1 different direction. 2 Q Do you know if the sidewalk that leads up to 3 your unit is crowned, that is, goes up to the side and to 4 the middle and back down to the other side? 5 A I don't think so. I do know that further up 6 there is a sidewalk covers a place for water to run off 80 7 that we don't get water on the pavement. 8 Q Do you recall in your deposition telling us 9 that as you returned to your condominium unit after Hrs. 10 Corbin had dropped you off that again the dirt pluqs were 11 very obvious and very noticeable? 12 A Yes. 13 Q Again, they weren't hidden or obscured? 14 A No. 15 Q Now, the particular dirt plug that you 16 stepped on, you did see it before you stepped on it, did you 11 not? 18 A Well, a. such as you would see anything that 19 was on the ground in front of you. 20 Q I ..an. you .a", it and you said to yours.lt, 21 or made a ..ntal not. to yourself, I need to avoid this and 22 so I'll step over it? 23 A Not that particular one, no. You l~ed at H the ground, YOll "'Ii the pluqa, and you ..id to yourself, 25 l'ft qat to watch. but you didn't pick one of the.. and ny " """' "'" 1 this is the one I have to watch or that's the one I have to 2 watch. You just knew that you had to watch where you 3 stepped but not anyone in particular. 4 When there's ten plugs there, why would I 5 pick out one particular one to single out and say, hey, 6 that's the one I've got to miss? 7 Q Well, you're looking down as you're walkinq, 8 and you're seeing what's immediately in your path, and 9 sometime you see dirt plugs and you say to yourself I want 10 to avoid these and not step on them, is that correct? 11 A Well, yes. 12 Q And if you see one that's immediately in your 13 path, you try to avoid it in one fashion or another? 14 A Yes. 15 0 And in this particular instance, you saw this 16 dirt plug that was in your path and you said to yourself I 17 want to avoid it and you attempted to step over it, isn't II that correct? 19 A Yes. It would be like seeinq doq doo-doo in 20 front of it and you didn't want to step on it so you tried 21 to atap over it. 22 0 Ri9ht. 21 A lut the baelt part of my shoe cauqht it. 24 Q Okay. We may Mve perMps -- yo\l're an 25 b9Uah teacher. were an b9Uah t.acber. ... may Mve u - --........--- .- .' . . . 1 perhaps a semantical difference, but what I'm trying to make 2 sure that I understand is that you saw this plug and you 3 attempted to step over it but you didn't necessarily see 4 your foot come down on it, isn't that correct? 5 A Yes. But I can't say that that was the plug 6 that I picked out to say that that's the one I'm qoinq to 7 step over. 8 0 Well, let me take you back to your deposition 9 in July of 1997. Now, I'll refer you to page 81. At line 10 17 I asked you, MAll right. So you are tellinq me that 11 before you stepped on it you had seen that plug and thouqht 12 that you were stepping over it?M And your answer? 13 A Yes. But it would have been any plug. 14 Q Sur.. And, aqain, because it vas your heel 15 that cam. down on the plug, you didn't actually ..e your 16 foot in the process of st.pping on it, is that correct? 17 A No. 11 Q Okay. Did you think that with your normal 19 stride that you would be able to step over it without 20 stepping on it? 21 A I thouqht so. ;12 0 And, aqain, the reason that you were 23 attempting to avoid .tepping on it va. because of a safet, 24 concern that you al9bt fall? 25 A YMh. .. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 11 19 20 21 22 2J H 25 , . --.......- -- ~ ""'" Q Do you recall whether it was your left foot or your right foot that stepped on the dirt plug? A The right one. o And did your right foot then just come right out in front of you? A It came out and went to the side. o And your left foot, what, came underneath you? A The left foot was underneath me. o And if I recall correctly, when you had fallen and were on the qround, I believe your riqht leq or a portion of your right leg was actually on the qrass to the riqht of the sidewalk? A It had as I fell and ~ame down, I quess the leq slid forward. Q The dirt plug that you stepped on just before you fell, do you recall how far in from the right edge of the sidewalk it was located? A I think I told you once before you're a drea..r. Q I'll take that aa a compliment. But didn't you also tell us when I asked you that question before that you believe it vas appro.imately in one toot from the right edqe? A Possibly, yes. I don't know. " , . ._----. .- ""'" .~ 1 Q Okay. Do you recall Dr. James coming out to 2 assist you at some point? 3 A Oh, yes. 4 Q And do you recall that his wife also came 5 out? 6 A She came out just a little bit after that. 7 Q Did Dr. James at some point qo back into his S unit and then come back out to you? 9 A I'm not positive. 10 Q Do you recall that Mrs. Ja__ came out, went 11 back into their unit, got a blanket, came back out and 12 covered you with a blanket? 13 A I don't remember the blanket at all. I do 14 re_mber her going back in and calling the ambulance, but I 15 do not remembar a blanket. 16 Q Now, in the 20 ainutes approximately that you 17 were out there before Dr. James ca_ to you, did it continue 18 to .ist? Did it stop misting or did it becoae more of . 19 rain? 20 A 1 think that it probably continued to .lat, 21 but it did not rain. n Q Dud.", the tl.. that Dr. James and bi. vUe U WUe out there In your pr..en<:e. do you noaU that eit.her 24 of the. f.ll? 2S ,. n..t either of thQ wMU 10 , "-'--~'-' ---- . . 1 0 Fell. 2 A FeU? 3 0 Yes, ma'am. 4 A No. 5 Q Now, at some point then, if I understand 6 correctly, an ambulance came to your assistance? 7 It. Yes. 8 Q Do you recall the number of allbulance 9 personnel who attended you? 10 A Tvo. 11 Q And during the ti_ that they were there, do 12 you recall that either one of them feU? 13 A No. 14 0 Did your daughter ever come to ... you or 1S rencler any ...istance or to attend to you or do anythift9 16 While you were still on the ground at your unit before you 17 were transported to tha hospital? II A No. 19 Q The Unt ti_ that your dauqhter ..w you ao that day va. at the hospital? H A At the ~pital. n MIl. 'JUtlt 'l'M1\k you very auch, Itr'e. U c::oMolly. at n 11 . . 1 CROSS EXAMINATION 2 BY HR. KROLL: 3 0 Hiss Connolly, can you see me over here? 4 Would it be easier if I moved over there so you can see me? 5 A I think because this lovely looking woman is 6 blocking my vision. 7 Q Let me see what I can do then. I'll move 8 camp here. Will the jury mind if I stand right over here? 9 Is that all right with you? 10 MR. HENNING: You can sit here if needed. 11 HR. KROLL: This way I can stand up and IIOve 12 around and talk better. 13 BY MR. KROLL: 14 Q You'll be qlad to know IIY question. are few. 15 As I recall it, when you left it va., and I think I wrote it 16 down, a nice, pleasant, typical tall day? 17 A Yes. 18 Q And you're sure about that? 19 "Ve.. 20 Q Okay. And then you had a .eeting at 1:00, I 21 forqat vtult the meeting was, but it vas at 1%00 in 22 Ke<:banicsburq? 2J A I thif\k .0. 24 Q And you were on ti..? 25 A Y... '2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 11 19 20 21 22 2) 24 U - --- .-- . . Q And you spent about two hours there and then you came back? A Yes. o Puttinq you back in the association -- at the association at your home in the 3:30, 4:00 area, not pinning it down, but that's giving you a time frame. Is that all about right to you, ma'am? A The reason I know the time in the later afternoon it was a school qirl, and she must have recently qotten out of school and she was going over to a house across the street to play with a friend. And before .he entered the house, she looked down and saw me and asked _ if I needed help, and I said yes. Q Right, that fits. And it also fits with the tact that you thouqht you were at the luncheon, or Whatever it was, for about -- A It was just a meeting. o At the ..eting for about two hours? A I think so, approximately. o Now, t don't know if this came out on your dh'act teetillOfty, but you _re in your earlier days at the association an actual Il8Ilber of the a..ociation. t think it did coae out that yo\l uld you were the ucretary'l A 't... o BUt not at the ti.. ot thi. inclcSent'l n _.-.......... ~ ~ 1 A No. 2 0 But in your capacity as secretary, or just 3 throughout your talking to folks, did there ever come to be 4 a time where the folks at the association policed the 5 activities of the folks that did the landscapinq? 6 A It seems to me that I recall that 7 occasionally the officers got toqether and had to go around 8 and see something that was going on at one of the units, 9 maybe the ground was sinking or there was some sort of 10 seepage or something of that nature. Yes, the officers did 11 do things like that. 12 0 I want to ..ke sure that you listen real 13 carefully to this question, okay. Did there come a point in 14 time, to your knowledge, that the folks at the aasociation 15 policed the landscapers in the manner in which they did 16 their job? 17 A Not that I knoW or. 11 0 Okay. And, ....., im it a f.ir atateaent 19 that you're not blaming the .ssociation for causing your 20 fall? ts that fair? ;U J<<R. HENNING: I'm qoing to object to that 22 question. That .ets -- 23 Tltl COUIrf: l\aatained. Next q\Mation. The 24 ...celation i. . defandant In thim ca.e. 2S D. ltROLL: hnl..ion to appr1Mlcb, Your 14 , . . 1 Honor? 2 THE COURT: No. Next question. That is 3 calling for a legal conclusion, and I am not goin9 to let 4 her answer it. The jury will answer it. 5 BY MR. KROLL: 6 0 Ha'am, do you recall my asking you that very 7 same question in your deposition? 8 THE COURT: I am here. I was not there then, 9 and you are not goin9 to ask that question here. Next 10 question. 11 HR. KROLL: I don't want to transgress 12 aqainst the Court's rulings. 13 THE COURT: Hove on to something else then. 14 BY MR. KROLL: 15 Q Ma'am, with respect to this incident, as you 16 were walking on the sidewalk itself, was there anything 17 vas there any prOblem that you noticed with the sidewalk 11 itaelf? 19 A You mean was the concrete cracked or anything 20 of that nature? 21 0 Right. Was the sidewalk itself in qood 22 physical condition? 23 A Yes. 24 Q No cracks, crevices or boles? 25 A No. '5 . . 1 Q And these -- I think this has been covered, 2 but these dirt plugs that we have been talking about, they 3 were noticeable, there wasn't anything stopping you from 4 seeing them? 5 A No. 6 HR. KROLL: I have no further questions. 7 THE COURT: Redirect. 8 REDIRECT EXAMINATION 9 BY MR. HENNING: 10 Q Dorothy, I just want to go over a few 11 specific points. 12 THE COURT: I want to ask one question before 13 that was not brouqht out. 14 MR. HENNING: Sure. 15 THE COURT: Back when this accident happened 16 on october 18, 1994, was the condition of your back the same 17 then as it is today, that we can observe today? 18 THE WITtlESS: No. 19 THE COURT: Row vas it different? 20 THt WtTtlESS: t have osteoporosis, or hOllNlver n it's pronounced. Myhow, I had the difficulty standi", for 22 any length of tiae. but I didn't need any help walking vith 23 a caM or a walker or lUlything ot thh Mtllr.. We found 24 out.. 25 1'IR COUln'I WhU did you develop .. let .. " . . 1 ask this. I do not want to be extensive in my doing this. 2 I realize this is not related to the accident nor is it 3 claimed as such. When did your back condition reach the 4 point where you needed either some assistance or medical 5 assistance or walker or whatever? 6 THE WITNESS: I had surgery this past Harch. 7 THE COURT: Good. 8 MR. HENNING: Thank you, Your Honor. That 9 eliminated one of my four questions. I wanted to brinq that 10 to the forefront that the back surqery took place recently 11 and the back problem is a more recent problem. 12 BY HR. HENNING: 13 0 Dorothy, you were shown these photographs and 14 you were asked to pinpoint where approximately you had 15 fallen, and you zeroed in on the shadow, and you indicated 16 you were walkinq in the center to the riqht side of that 17 walkway. 18 My question to you ia, at anytime .s you vere 19 valkinq up this walkway, did you venture into the grassy 20 areaa? 21 A No. 22 Q You remained on the concrete the entire ti..? 23 A Yes. 24 0 You vere al.o aaked ao.e question. to try to 25 approximate how many dirt pluqa you had visualized aa you 11 . . 1 were walking up the walkway, and you were -- you didn't give 2 a concrete number. You said it could have been 5, it could 3 have been as many as 50 up and down the walkway. 4 I think yesterday you gave a nice description 5 where you said that they were scattered using that counter 6 in front of you. 7 HR. PRICE: I'm waiting for a question, 8 that's all. 9 THE COURT: Lump it into a question. 10 BY HR. HENNING: 11 Q Do you recall giving the deposition that the 12 other gentlemen had mentioned? 13 A Do I recall giving the deposition? 14 0 Yes. 15 It Yes. 16 Q And I'm going to show you page 54 of that 17 deposition. I believe it was either Hr. Price or Mr. Kroll 18 were asking you questions, and you were asked a question on 19 page 54 as to how many dirt plugs you had encountered by the 20 time that you had fallen. Am I correct that your response 21 on that date was 201 22 A 1 said, "Oh, Lordy, maybe 20." 23 Q That was from the -- the que.tion that wae 24 asked of you 'In from the tt.e you started going up the ~5 w.lkvay until you fell? 18 \ -. "- . . 1 A Um-hum. 2 0 You passed by 20 plugs? 3 A Well, in front of me and forward. 4 Q I want you to look at this. That adds a 5 little different thing. Read the question before. 6 A Okay. 7 Q And aID I correct that the question that vas 8 posed to you by the other attorney stated how many dirt 9 plugs did you encounter? 10 A Shall I read this out loud? 11 Q Just read it to your.elf for the moment. Nod 12 when you are ready. 13 A Yes. 14 Q Am I correct that the que.tion that was posed 15 to you by the other attorneys was how many dirt plug. you 16 encountered by the ti.. you had fallen? 17 A Ye.. I said -- 11 Q You said, Oh, Lordy, it was -- 19 A Maybe 20. 20 Q Thank you. You were asked question. about 21 how Dr. J.... ca.. outside and rendered as.istance. Did Dr. 22 J.... .tay out. ide with you the Whole tl.. until the 23 aabulanc. c...? 24 AYe.. as Q "'as Mr.. J.... outside the enUre ti.. or did '. , ., -...- .~ . . 1 she go back inside? 2 A I don't think so, but I won't swear to that. 3 0 I had asked you yesterday what in your 4 opinion, since you were the only one that was there, would 5 cause you to fall, and you had indicated that it was because 6 the back of your shoe caught this dirt plug. Is there any 7 doubt in your mind about that scenario? 8 A Absolutely not. 9 HR. HENNING: I think that's all I have, Your 10 Honor. 11 THE COURT: Any recross? 12 MR. PRICE: Yes, Your Honor. 13 RECROSS EXAMINATION 14 BY HR. PRICE: 15 0 Hi.. Connolly, just for the purpos.. of 16 coapleteness, I'. going to take you beck to that page 54 of 17 your deposition froa July of 1997, and I'll qive you the big 11 one. 19 A Are you interring that I don't see too well? 20 Q lMll, here, I'll give you the small one if u you would Uk.. Let'. do thia together. I'. qaing to .tart U at 11M 11. 00 you ... it over in the left-hand aarvln the 1;) nwaber 11? 24 A Yd. as Q And t va. the one ..king you the ....Uone. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2) U :IS . . So let's do that, I'll read the question, you read your answer, all right? A Um-hum. o All right. "Are you able to give us some kind of an approximation as to the number of plugs you had seen on the sidewalk from the point that you got out of the car to the point where you fell?" Your answer? A nOh, Lordy, maybe 20." Q Then I said, "Okay. And when you say 20, would that be the approximate number of plugs that you had actually walked past up to the point where you fell?" And you said? A The trick there is that you actually walked past -- Q But could I just ask you to read what your answer was to that question. A "And when you say 20, would that be the approximate number of pluqs that you had actually walked past to the point where you fell?" Q And your answer -- then your answer to that question vas? A Was possibly. o And my next question vas, and I que.. it wa.n't a que.tion, I said, "Okay." And vhat vas your r..p'\ftSe to th.t? 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 :I) 24 n . . A I said, "I wasn't counting." Q Fair enough. HR. PRICE: Thank you very much, Hrs. Connolly. THE COURT: Anything further? MR. KROLL: Just one. RECROSS EXAMINATION BY MR. KROLL: o Miss Connolly, are you aware of any facts with respect to the conduct of the association that gave rise to your fall? HR. HENNING: I'm going to place an objection -- THE COURT: Sustained . MR. HENlfING: -- the Sa_ as before. HR. lQlOLL: No further questions. THE COURT: Okay. You may step down. We are qoinq to take a break. I a. a coffee drihker. I will bring you down a little after five of, between five of and the hour, maybe even to the hour. So we will take a recess, a leisurely break. (Whereupon, a brier recess was taken.) THE COURT: Now, this 1a 90ing to be vtloa? MR. "DIlIINGl Your Honor, we are CJOlng to present the vldeota~ of Dr. Thoaas Cr..n, MIss COnnolly.s .2 . . 1 treating physician. 2 THE COURT: Has the video been marked? 3 HR. HENNING: No, it has not, Your Honor. We 4 would like to have that marked as the next available exhibit 5 number. 6 THE COURT: It is going to be seven. Is the 7 transcript marked? 8 HR. HENNING: No, Your Honor. 9 THE COURT: Let's mark the transcript now as 10 eight. Are there any objections I need to rule on durin9 11 this? 12 HR. HENNING: I don't believe so, Your Honor. 13 MR. PRICE: No. I thiftk we can just roll 14 right through it. There is one. 15 THE COURT: There is none? 16 MR. PRICE: There's one. I say we just roll 17 right through it. 18 THE COURT: You mean you are waivinq? 19 HR. PRICE: I'll withdraw it. 20 THE COURT: YOU are withdrawing it. So we 21 viIi just play the tape as it is. We take most of the 22 doctors on depoaition. They are touqh to get in~o court, 23 and it makes sense that they be taken on depoeltion when 24 they have time to do it and not pull th.. out of the other 25 thinqe that are i~rtant that they do all the time. I) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ (Whereupon, the videotape of Dr. Green was played to the jury.) THE COURT: Folks, I am going to let the jury stand up and relax for a few moments. I have got to see your eyes open or I do not know you are awake. (Whereupon, a brief recess was taken.) THE COURT: Have a seat. We will continue. (Whereupon, the videotape of Dr. Green continued and was concluded.) THE COURT: What was the date of that deposition? MR. PRICE: THE COURT: February the 12th, 1998. Do you have some other witn...e. ready? MR. HENNING: Yes. THE COURT: Let'. take a short ten ainute break. I will bring you down at ten after, folk.. R.ce... (Whereupon, a brief recess was taken.) THE COURT: Next witness. MR. HENNING: Or. Jame.. Whereupon, BENJAMIN D. JAMES, having been duly .worn, testified a. followet .. ~ 1""'\ 1 DIRECT EXAMINATION 2 BY MR. HENNING: 3 0 Dr. James, will you please state your full 4 name. 5 A Benjamin D. James. 6 Q Where do you reside, sir? 7 A In 104 Strayer Drive, Carlisle. 8 0 And am I correct that you are married? 9 A Yep. 10 0 How lonq have you been married? 11 A How lonq have I been aarried? 12 0 Yes. 13 A Eighteen years. 14 Q Do you have any children? 15 A Yes, I do. 16 Q And a. I correct that you live next door to 17 Dorothy COnnolly .eated to .y right? 18 19 20 21 2J U U U A That Is correct. She Is my neighbor. Q Ara you retired, sir? Ara you retired? A I play golt on a recJUler basis, but other than that I'. retired. 0 You are reUrecl from work? A Ye.. 0 ha1 won? A ta.. n Q A Q Dickinson? A Q A Q . . u. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . being performed at the condominium complex? A Yes, I think I was. Q And was it your understanding that they were doing an aeration process on that day where they pull the plugs out of the ground? A Yes, I think I was aware. Q Now, when this little girl knocked on the door, did you know who this little girl was? A No, I did not. Q And to this day do you know her name or know who she was? A No. She was about 12 years old, a little girl. Q And after the little girl knocked on your door, did you then go outside to see what was goinq on? A Well, she said the woman out here wants to talk to you. Q A Q So .m I correct that you vent outside? Immediately. And what did you observe when you went outside? A Took about two atep., and I saw Mrs. COnnolly on the pavement about 15 feet out. Q I'm 90ing to show yo\l two pbotoqrapb. that were identified a. Plaintiff'. EXhibit. 1 and 2. ~r one 81 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 .u 24 25 I'll show you first. That depicts what? Can you tell us what that depicts, sir? A Yes, it's Hrs. Connolly's home and my home, and the pavement about right here is where I saw Hrs. Connolly. Q You are pointing with your middle finger just a little bit beyond the shadow area, about halfway up the walkway. can see it. you saw her. THE COURT: Why don't you point so the jury Just hold it up for the jury and point where THE WITNESS: About right there. This is Mrs. Connolly's home. This is our home. She vas about right there. BY MR. HENNING: Q And when you -- thank you, Doctor. When you saw Miss Connolly layinq on the -- when you went outside, was Miss connolly laying on the qround on the sidewalk? A Yes, she was. a In other words, she wasn't standing or seatacl? " No, no, she was flat on the qround. o Dicl you '0 down tQ 'Usa connolly'S 81ele? A I went out l-..diately. Can t continue or IIbould t 'lISt answu? It . . 1 I'm too hot, so we did not put the raincoat on. So I said 2 to my wife, will you call 911, and she did. 3 Q From the time you first went out and realized 4 that there was this problem with Hiss Connolly until the 5 ambulance arrived, how much time transpired? 6 A During what I've just told you, about a 7 minute, a minute and a half at most. 8 Q But from the point that you first went out 9 until the ambulance actually came to the scene, how much 10 time had elapsed? 11 A When the ambulance arrived, about five 12 minutes. 13 Q During th"t time fra.e, did you remain 14 out. ide by Ki.. Connolly's sid.? 15 A Yes. I talked with Mrs. Connolly and 16 encouraged her not to IIOve. And w. took the raincoat and 17 tried to aake her a little more comfortable by placing it II under the shoulder that .e..ed to be dislocated without 19 moving anything. Ar4 then I talked with her in terms of 20 a.aurance and things vould be all riqht and okay. 21 Q Did Kis. Connolly remain lying on the ;U sidev.lk n A otI, yes. She vas in pain, y.s. HOlt you could let.. finiah auil'l9 laY as ....Uona 1n the entirety ao the lady in front of u here to "'" 1""'\ 1 can record us. 2 A Okay. 3 Q Did she remain laying on the sidewalk -- 4 A Right. 5 Q -- until the ambulance arrived? 6 A Yes, yes. 7 Q When you went outside that day after the 8 little girl knocked on the door, can you tell us what the 9 weather conditions were like? 10 A It's my impression, trying to remember this, 11 that there was a little mist, a little rain falling, and I 12 think the fact that my wite brought the raincoat would be an 13 indication that there might have been a mist. 14 Q When you went outside that day, did you 15 observe anything unusual about the concrete walkway? 16 A Not at that point. My concentration was 17 purely on Hrs. COnnolly. 18 Q Did you subsequently, as you were outside for 19 a period of time, recognize that th.r. was s~.thing on the 20 .idewalk? 21 A Your qu.stion atain? 22 Q After you were outside for a period of ~i... 2J cUd yo\l reaU.. there va. sOMthing .. ,. A Mot WhUe ahs v.. thus. 2! Q tardon? " . . 1 A Not while she was there. I concentrated 2 purely on her and her condition. 3 Q At some point during this process while you 4 were outside did you realize that there was some type of 5 debris or objects on the sidewalk? 6 A Not until the whole thing had cleared and the 7 ambulance had gone. 8 Q What did you observe at that point? 9 A I observed then that there were SOlie, I would 10 call them, dirt clumps that had been wet and were on the 11 pavement. 12 Q And how many of these dirt clumps, or as 13 we've been calling them, dirt plugs, how many of them were 14 on the sidewalk? 15 A I have gone back and looked at the area where 16 she was, and my best recollection would be that there were 17 .everal of these small little clumps on the pave, and the 18 area where she was was about 6 feet long and about 2 feet 19 wide. I would say there were several clumps on that pave, 20 yes, and on the other parts of the .id_elk. 21 0 I'm eorry? 22 A AtIlt on other parte IJf the sidewalk. 23 Q When you went outelde that day to assist Mls. H Connolly. did you noc,le. if there were any landec.pl"" 25 worker. or landscaping equi~nt. "J ~ .......... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 H H H n A There were no workers present. There was nobody. It was interesting. Nobody appeared but my wife and I. We were the only two until the ambulance came, and then we had the two people from the ambulance. Other than that, there was no one there. o So they had been doing the aeration earlier in the day but when you went out as far as you know -- A Again, I would be hard put to remember that, but I would in my own mind thinking of it that they probably were there in the morning and had left because of the conditions. But, again, there's one unusual thing about living in that situation. You rarely go out front. You go out to the garage and get in your car and leave from that direction. So it's rare that you would be out front, and I think that was true on that day. Q Just so I'. absolutely clear, when you went outside that day to assist Kiss Connolly, you did not s.. any landscape workers or landscape equipment in the area? A Not at that time. I would think that they had been there earlier in the morning. Q Aa far as you know. they bad left for the day? ,\ Ttult'. What I would thlnk. Thn would be .Y oplnlon. o NOV. the dirt pluq. or cluape, .. you 'I) ""'" ~ 1 referred to them as, were they strewn up and down the entire 2 length of the sidewalk? 3 A I would say, yes, that there would be some on 4 every part from the main -- from the Strayer Drive, the 5 actual drive, into the house. There is a split as you would 6 see. I would say there would be some clumps, or whatever, 7 on each one, yes. 8 0 And was it your thought process that these 9 dirt plugs or clumps had appeared on the sidewalk as a 10 result of that core aeration that they were doinq? 11 A Aqain? 12 Q Was it your thought process that these dirt 13 pluqs that were on the sidewalk were the result of ca.. 14 from the core aeration that they had been doing? 15 A Ob, I would think so. That would be my 16 thinking, yeah. 17 Q In other words, the custom of having dirt 11 pluqs on that walkway isn't something that happens all the 19 ti.. there? 20 A IU"ht. What 1 think happened tbere were 21 little pluqs, and the pluqs bee... wet, and they just apl'hd n out. little. But there were a number of th.. 2) 0 1 don't _nt to belabor Utis point, ""t jut :u eo we haft .... quntUleatton, if w took ..ybe a IIq\tan as yard a.... or e IIq\I&n root, vtwlteftr label YOl.I VlII\t to pit .t . . 1 on it, how many of these dirt plugs would you say you saw in 2 a square foot or a square yard? 3 HR. PRICE: Objection. He's already answered 4 the question, I believe. 5 THE COURT: Overruled. If you can say. It 6 you can say. 7 THE WITNESS: As I said, since this has 8 happened and since we've started this business, why I've 9 gone out and observed the walk. I would say the particular 10 walk would be about 6 feet by 2 feet where Mrs. Connolly 11 waa, and that on that particular part there would be several 12 of these little wet pieces ot dirt probably fro. the pluqs 13 of the aerator, and then there were a number of these 14 sections, say, 6 by 2, and they extended fro. Strayer Drive 15 to our house. 16 BY HR. HENNING: 17 0 So when you are referring to the 6 foot by 2 18 foot seqaent, you are talking about the different seqaenta 19 of the -- 20 A Y... This i. a seqaent, y... It would be 21 the only way I would be able to obeerve a number. 2a HR. HDJlING: I beUe" that'. aU I !lave. H ntl COU1tT: Cross. H U n ~ ""'" 1 CROSS EXAMINATION 2 BY HR. PRICE: 3 0 Dr. James, my name is Kent Price. I 4 represent Geistwhite Landscaping. How long have you lived 5 at the condominium unit? 6 A In the home that I am now, about 12 years, I 7 would say. 8 Q And my understanding, sir, is that where this 9 coaaon sidewalk is that you ahare with Mrs. Connolly that 10 you consider that to be your front door? 11 A Riqht. 12 0 And you use that infrequently? 13 A Infrequently, that's true. 14 Q If I could take you to the backside of your 15 unit. 00 you have a double door qaraqe? 16 AYe., ve do. 17 Q Are thure any other doors to the rear of your II house that would lead outside? 19 A No. Oh, wait. We have a little side yard 20 off an encloseel porc:b, and then would be cloors there to get 21 out. ide. INt that 908s to the insicle, not the outmide. 22 Q Okay. Is there an entrance frea the out. ide 2) into tbia acreenecl-in porch? 24 A Rot fro. this .ide, frea whete the patio i. 25 and the enclosure. t6 ~ 1"""'\ 1 Q You're talking about an interior door then? 2 A Right. 3 Q From the inside of the house to the 4 screened-in porch? 5 A The only two are the garage door and the 6 front door. 7 0 Okay. Dr. James, you talked about a 6 foot 8 by 2 foot section of sidewalk. 9 A Right. 10 Q And I would assume that 2 foot dimension you 11 gave.. would be the width? 12 A Right. 13 Q Do you recall -- do you recall that we took 14 your deposition in this case back in November of 1997? 15 A Right. There were two taken. One was on the 16 phone one niqht. That was the fint indication that I had. 17 Then there was another where the two attorneys came with a 18 stenographer, and we went over the whole thing, yes. 19 Q Let .. just uk you this. We took a 20 deposition at your house in tact? 21 A liqht. 22 Q And 1 beUeve tMt vas in Noveaber or 1997. 2J 1 believe it vas .. auinq U\is question. 1 Hid, -..rore 1 2. ca.. ia ber.-. ...nlnq to your hou.. __ II A liqht. t? ~ ""'" 1 Q -- "I have a tape measure in my car, and I 2 measured the width of the sidewalk we're talking about where 3 the accident occurred, and my measurement was about 35 to 36 4 inches." Would you tend to agree with that? 5 A Yes. I would not hold on my -- I just took 6 my eye and said about 6 feet by 2 feet. 7 Q Okay. So it's more than 8 A I have not measured anything at anytime. 9 Q Okay. So a section of the concrete -- one 10 section of the concrete sidewalk would be approximately 6 11 feet 10n9 by 3 feet wide? 12 A Right. 13 MR. PRICE: The Court's indulgence. 14 THE COURT: Yes. 15 MR. PRICE: Thank you very auch, sir. 16 THE COURT: Kr. Kroll. 17 MR. DlOLL: No questions, Your Honor. 11 THE COURT: Any redirect? 19 REDIRECT EXAJIlINATIOH 20 BY MR. HEmUNG: 21 0 Dr. J...., req.rdle.. of the actual 8pllClfic 22 ..asureaent of the width of this w.lkway, do you still atand 23 by your earlier te.ti.ony th.t there Were the.. dirt pluqe, H ..veral of the. within -- ~~ A Yeah. .. ~ ,.-. 1 A Yes. 2 Q How long have you known Dorothy? 3 A Since 1963. 4 Q How did you get to know Dorothy Connolly? 5 A Well, we had just moved to Carlisle, and I 6 was asked to join a card club, and that's how I know her. 7 Q So that started back in 1963 roughly? 8 A In the fall, yes. 9 Q You play pinochle, is that correct? 10 A Yes. 11 Q Are you retired, ma'.m? 12 A Yes, I am. 13 Q Were you a school teacher? 14 A Yea, I was. 15 0 Did you teach school at the .... facility 16 that Dorothy did? 17 A Just a abort ti... 18 0 Takinq you back in ti.e to October 19, 1994, 19 a. I correct that you and Dorothy attended a ...ting in 30 Mechanicaburg that had aomething to do with your retir...nt 21 benefits (rea the school district? 22 A It vas in reqard to health benefits, yea, 23 that's true. 24 Q AM 01\ that puUcular 4ay in qu.aUon, did 25 yo\l 90 to IU.. Connolly's bo.e PIS piCk her up? 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2J 24 25 . . A Yes, I did. Had you just recently retired at or about Q that time? A I retired in 1990. o 1990? A om-hum. Q Had you ever been to Dorothy Connolly'. home prior to that day? A Yes. Q Now, on prior occasions when you went to Dorothy's home, would that have been for card club? A Yes. Q And when you pulled up at her home and you parked on Strayer Drive and walk up the walkway to the front door, that is actually on the .ide of the hou.e? A Yes. o On this day in que.tion, is that what you did, you pulled up on Strayer Drive, qot out of your car and went to the front door? A Ve., I did. o When you qot to the front door, did you actually qo inside Dorothy'S hoae for a period of ti..? A Just . short ti.. until she wa. ready to luve. Q About how 10"9 would you uy you were inside 101 . . 1 before you decided to leave or were ready to leave? 2 A Approximately maybe five minutes. 3 Q And then am I correct in assuming that you 4 went back out that same door and walked out that same 5 walkway to strayer Road? 6 A Yes, we did. 7 Q Did you and Dorothy walk out toqether? 8 A Yes. 9 Q When you were walking back out to the car, 10 did you notice anything out of the ordinary as far as the 11 sidewalk, the walkway? 12 HR. PRICE: Object to the form of the 13 question. 14 THE COURT: It is okay. You aay answer it. 15 THE WITNESS: Yes. We were talking, and 16 Dorothy had said that there was some, you know, like mud on 17 the walk and to be careful where we were walkin9. 18 BY MR. HENNING: 19 Q And can you describe for me What thes. aud 20 object. looked like? 21 A I really can't r....ber. Th.y were just, you 22 know, small pi.ces of dirt. 23 Q W.re they shaped in any fashion like -- 24 MR. PRICI: ObjectIon. 25 THE WITNESS: I really can't r..e~r. 102 . . BY MR. HENNING: 0 Dorothy at her area? A Q A Q 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 U . . HR. HENNING: Okay. BY HR. HENNING: Q When you were walking down the walkway, was it necessary to take any special precautions other than just simply walking down the walkway? A Yes, just so you didn't step on the mud. Q Do you recall what you and Dorothy were talking about, if anything, as you were walking down the walltway? A I don't recall. Q You went to the meeting in Mechanic.burg, correct? A Yes, we did. o How long did the ..eting in Mechanicsburg last? A Oh, I suppose an hour, an hour and a half. o And then after that meeting was over, did you drive Dorothy back to her house? A Yes, I did. o Did you aake any stops, pit stops, alonq the way? A No. o And where did you drop off Dorothy when you went back to the hoae? A A9a1n, 1n front of the hoae, 1n the front of 104 "..., ~ 1 her home. 2 0 Did you get out of your car at that time? 3 A Did I? 4 0 Yes. 5 A No, I didn't. 6 Q Do you recall what the weather conditions 7 were like as you arrived back at Dorothy's home? 8 A I know it might have been misting. I mean, 9 it had been misting earlier, but I can't really say for 10 sure. 11 Q So you knew it had been misting on the way 12 back to the house, but you're not sure if it was misting at 13 the time you had dropped her off? 14 A Right. 15 0 Do you have any -- can you put a tiae fra.. 16 or time when you arrived back at the home? 17 A I would think approximately 4:00. 18 0 Did you actually see Dorothy fall on the 19 walkway? 20 A No, I didn't. She had started walkinv, and 21 it wa. liqht, of course, .0 I just went on. No, I did not 22 see her fall. 23 0 So you had pulled -- you were in the proce.s 24 of pullinq away and driving down the road at the ti..? 25 A Right. 105 . . lOIn the -- at the present time -- strike that. 2 In the last few years, have you continued to interact and 3 socialize with Hiss Connolly since 1994? 4 A Just through card club when she was there. 5 Q Now, you see that Hiss Connolly walks with a 6 walker at the present time. Prior to the fall in October of 7 1994, was it necessary for Dorothy to use a cane and did you 8 ever see her using a cane or a walker to ambulate? 9 A No. 10 Q And prior to October of 1994 when she would 11 have card club at her home, was she able to -- as part of 12 your card club, do you have goodies or any kind of food? 13 A Yes, we do. 14 Q Is it simple things like pretzels and chips 15 or can you explain that to u.? 16 A It's de..ert, coffee, and then there's 17 snacks. 18 Q That'. what it is at the present time? 19 AYe.. 20 Q In the past, was there a time period when 21 there was perhape soaethinq more elaborate in terms of foods 22 that were served? a J A No. 24 0 At thIs time when Dorothy has card club, 25 where does she hold the card club when It's her turn? 106 . . 1 A At the present time it's like at sunnyside 2 Restaurant. It's not in her home. 3 Q Prior to this incident occurring in October 4 of 1994, could ahe hold card club at her home? 5 A Yes. 6 Q And was she able to act as a hostess and 7 aerve the food and so on? 8 A Yes. 9 KR. HENNING: I believe that's all I have. 10 KR. PRICE: I have no questions of Krs. 11 Corbin. 12 KR. KROLL: No questions, Your Honor. 13 THE COURT: Ma'aa, you are excused. 14 THE WITHESS: Thank you. 15 (Whereupon, the requested testiaony 16 waa concluded.) 17 (Whereupon, the following discussion II was held in chaabers at 3:34 p.m.) 19 THE COURT: Is there any objection to the 20 adaiaaion into evidence of GeiatWhite's aix exhibit. wlth 21 the Wlderatanding that the tape-recording of Gei.tWlllte aM 22 the tral\Script, 1 and 2, will not go out to the jury? n MR. HDnflNC: That'a Une. H TIll COURT: Gelatwlt. 1 throuqh 6 .... 25 admitted. 10' . . 1 MR. KROLL: We haven't addressed what goes 2 out with the jury yet, have we? 3 THE COURT: As far as plaintiff's, we have 4 two pictures, we have the shoe, we have the plug, the 5 medical services bill. Green's video, 7, and Green's 6 transcript, a, will not go out. That is it. Off the 7 record. a (Whereupon, a brier discussion was 9 held off the record.) 10 KR. PRICE: On behalf of Defendant 11 Ceistwhite, I wlll move for a directed verdict on the 12 following bases. First of all, in accordance with the 13 Re.tate.ent of Torts, Section 343, my position that 14 Defendant Cei.tvhite was acting on behalf of the condominium 15 association a. an independent contractor and accordingly is 16 aubject to the same liability and enjoy. the aame freedom 17 from llability for physical harm caused by his endeavo... to 11 others on the property. 19 THE COURT: As an owner of land? 20 MR. PRICE: A. though he was the pos....or of 21 the land. Therefore, he i. subject to the liabi1iti_ and 22 freedoaa of liability contained in Section 343 aM 343A of 23 the ".tat...nt of Tort. SecoM. 24 specifically, in thb cue it'. our poeition 25 that there l. no duty in vi.w of the fact that the condition 101 .... 1 that caused the injury in this case was open and obvious and 2 known to the plaintiff. Her testimony was replete with 3 words of that same rashion, that she saw it, it was obvious, 4 she knew it. S In her mind it was a danger. It was a safety 6 iasue. I don't believe that there is any equivocation on 7 her part as to the fact that it was open, obvious, and known 8 to her, and, therefore, on that basis there is no duty, and 9 I believe a directed verdict is justified. 10 THE COURT: I will let you answer that one. 11 KR. HENNING: Well, I still think all of that 12 goes to a jury question, and I think we have to look at 383 13 and 384 conjoined with one related to that. I think we 14 still have the but for question, that if Ceiatwhite did 15 their job as they were supposed to do, and as Geiatwhite 16 adaits they were supposed to do as far as removing all of 17 the debris, that thia woman would not have fallen, and that 18 the only reason she was faced with this perilous situation 19 was becau.. of their negligence. 20 I mean, lt 9oe. both way.. If she say. I 21 didn't... the plugs, then they are arguing, _ll, how can 22 you not ..e th_, you were carel... and neglig.nt doiftlJ n that. She acknowledge. that she saw th.., she tried to 24 avoid~. 25 In one breath they are claiaiftlJ that dirt 109 . . 1 isn't dangerous. Now they are trying to claim that it is 2 dangerous and that she knew it was dangerous. I submit to 3 you that it was. I would submit to you that it was 4 foreseeable that someone would fall, and that they were 5 negligent in not removing them, and all those issues need to 6 go to the jury. 7 THE COURT: Well, isn't an element of B, the 8 B section or the Restatement, that defendant should expect 9 that its invitees will not discover or realize the danger or 10 will fail to protect themself against it? That predisposes 11 knowledge of the danger in proceeding ahead. 12 MR. HENNING: Correct. If you look at 343 13 and 343A in conjunction it aays, WAn owner of land i. liable 14 to his or her invitee. for any harm he or she ahould have 15 anticipated, regardless of whether the danger is known or 16 obviou.... 17 THE COURT: I understand that i..ue. Now, 18 any other basia or any other motion or baai. for a directed 19 verdict? 20 MR. PRICE: Y... I que.. in this prof.aaion 21 _ do a lot of talking out of both sides of our mouth, _ 22 make arqu..nt. ln the alternative. In the alternative, it'. 2) our position that thia COUrt can rule a. a matter of law 24 that a dirt plug approximately an inch, an inch and a half 2! lol'lCJ of the.... .ire and di...ter a. the one involved in 110 ~ ~ 1 this case does not constitute a dangerous condition. In 2 comparable size, twigs, a cigar butt, a pebble on the 3 sidewalk. 4 THE COURT: Anything else? 5 KR. PRICE: And thirdly, Your Honor, and now 6 of course we would get to the position where it is in the 7 alternative, and that is if, in fact, it is a dangerous 8 condition. I think, again, clearly under the facts of the 9 applicable law there is an assumption of the risk. 10 There was a subjective appreciation on her 11 part in her mind that this was a danger because of her past 12 experience a year or two before. Number two, it was open 13 and obvious. Number three, she knew that she should attempt 14 to avoid steppinq on it. She specifically said I thouqht IS that I could, and I attempted to step over it and 16 inadvertently or otherwise stepped on it. 17 I know that with so.e of the recent case law 18 they talk about was there an alternative pathway available 19 to her. And I would subait that if, in fact, it was a 20 dang. I' in her aind she did have an alternative pathway 21 available to her, Which would be the qra.s abutting the 2:2 sidewalk. 23 I thought this morniftlJ that perhaps there we. 24 anothet' entraJ\C1lWay at the rear of the coftdoainium, and t 2S find that that was not the cas.. aut I believe she could 111 . . 1 have stepped off the sidewalk into the grass. 2 THE COURT: What is the status of assumption 3 of risk law? If I do not rule that it is assumption of risk 4 as a matter of law, is it anymore under the circumstances a 5 jury question? 6 HR. PRICE: Yes, I believe that it is because 7 there may be some of those gray area cases where it's not 8 crystal clear as to whether there was a conscious 9 appreciation 10 THE COURT: Well, here in her own testimony 11 she admitted she saw the pluga and knew that she should 12 avoid stepping on them and that they were dangerous. 13 HR. PRICE: Correct. 14 THE COURT: Given that, if I do not accept 15 assumption of risk and therefore take the case out of the 16 hands of the jury, do I submit assumption of risk to the 17 jury under current law? And I don't know is all right 1& because I have read the most recent cas., and it is not easy 19 to understand. 20 MR. PRICI: I'. not sure. Obviously I would 21 llka a aecond bite at the apple, but t can't quote you the 22 ver.e or the chapter, so I'm not aure. 23 TIll COVltT: LAat.. hur first of aU th 2. plaintiff'. poaltlon as to th a.auaptlon of riak. 25 MR. tlDIMtMCI It's CUt poelt1on that it iSft't 1\.1 . . 1 applicable ractually, but the current case law, the way I 2 read them, and there are some gray areas, that they've 3 basically discarded the concept and it falls in under the 4 comparative negligence. All of the arguments he's making S are really comparative negligence arguments that she was 6 careless in not stepping around them or over top of them. 7 THE COURT: So you are saying under no 8 circumstances should I charge assumption of risk, I should 9 charge this on comparative negligence? 10 MR. HENNING: I don't think there should be 11 an assumption of risk charge looking at it factually, and I 12 saw the questioning that was going on this morning -- 13 THE COURT: Why don't you say it was 14 factually? So I think assumption or risk is still the law, 1S but that is a judicial determination. 16 MR. HENNING: I saw where they were headed 17 today with the questioning to see if there was another door 18 to get in through the back other than through the garage 19 door itself. There is no other door, and Mr. James 20 confirmed that's the way the houses are set up. There was 21 no alternative path. 22 It we had this woman walkiftlJ through the 23 grass and slipping and falling and then we file suit on 24 that, they are going to be raising their aras saying, well, 25 how could she be so .tupid to walk on the gr.... that's what 113 ~ -. 1 the walkway is for. 2 THE COURT: That's a dispositive factor 3 factually. There was no alternate entrance to her 4 apartment. 5 KR. HENNING: That's very key. 6 THE COURT: Anything else? 7 MR. HENNING: I think of this as snow and ice 8 cases, and the snow and ice cases it's open and notorious. 9 A person knows ice is dangerous, but yet we all know that we 10 have recoveries on slip and fall cases. 11 MR. KROLL: But the legal 12 THE COURT: Hold on. I want to get your. in 13 first, and then if I need sore input on these issues, I will 14 get back to you. So you are seeking a directed verdict for 15 three reason.. Anymore? 16 MR. PRICE: No, Your Honor. 17 THE COURT: Now, it is your turn finally. 18 Let'. talk about the specific reason. -- well, first of all, 19 are you making a ~tion? 20 MR. kROLL: Yes, Your Honor. 21 TIlE COURT: What is the association'. motion? 22 MR. kROLLI Well, fir.t, as a laftdowner, _ 23 have aany ot the .... .otiona that Mr. Price haa jut 24 brO\l9bt. up. 'lbe fint one lleil'lCJ that a dirt plll9 ia not a 25 da~. COIldlt1on. fOIl can rul. on that a. a utt.er of 114 . . 1 law. I won't revisit that. That's been addressed to the 2 Court. 3 Second, that the dirt at issue was open, 4 notorious, and acknowledged by the plaintiff, and that too 5 has been addressed. I do have some legal comments to make, 6 but if you would like me to reserve those, I will. 7 THE COURT: Yes, reserve them. 8 MR. KROLL: They are helpful though, but I 9 will reserve them. 10 THE COURT: Assumption of risk. Is there any 11 point you wish to make regarding the assumption of risk 12 argument? 13 KR. KROLL: Yeah. I think that the -- with 14 respect to my COlleague'S mention of snow and ice cases, 15 yeah, it's true, I mean, a lot of them still exist but 16 it's -- granted it's old law, but Carrender v. Fitterer was 17 the seminal case for many many years on the assumption of 18 risk, and it was certainly an ice case, and so I think the 19 law doesn't -- the issue that I don't have any answers for 20 either, I'm afraid, that i. before the COurt ia whether it H can go to the jury if you decide not to rule on it: .. a 22 matter of law. 23 aut certainly _ have aU of the iftlJredient. 24 for the COUrt to find an a.auaptlon of riak because in a U landowner ca.. What it doe. -- and the r...on that there va. 1l'S . . 1 some confusion between comparative and assumption is because 2 what it does is operate to discharge the duty in the first 3 place, the duty or the landowner. 4 THE COURT: Let's say for argument purposes, 5 and there is evidence that there were a whole batch of these 6 plugs there and the lady does not have a way to get into her 7 own house, what is she supposed to do? 8 KR. KROLL: Well, tactually I would say that 9 since her testimony was that there was nobody there when she 10 left and nobody t~ere when she came back, she deacribed no 11 difference in the appearance of the plugs, obviously there 12 was a way in and out because she did it one way, so I would 13 say to you that her own testiaony slits her throat on that 14 issue. IS THE COURT: I understand your position. Now, 16 any separate association arguments? 17 KR. KROLL: Ye., Your Honor. We believe that 18 Geistwhite was an independent contractor. I think the 19 testimony is clear in that regard. Factually, an 20 independent contractor is one who is contracted out to 21 perfon a service for the landowner. 22 THE COURT: 1 tell you what, rather than you n arguiftlJ all that to H, that 18 one art;J\lHnt, qlve H yoIU" 2. next arqu..nt, and then 1 vill co.e back. Any other 2S addltional point.? You are saylnq he v.s an indepenchnt 116 . . 1 contractor? 2 MR. KROLL: And therefore deprives -- 3 alleviates from the landowner the liability ror the work 4 performed. 5 THE COURT: And you are not liable as a 6 landowner? 7 MR. KROLL: That's correct. 8 THE COURT: And you agree with that law, but 9 you disaqree that he was an independent contractor, or am I 10 misstatinq your position? 11 KR. HENNING: I think they were an 12 independent contractor. I guess the analogy that I've 13 raised to Rolr on a number of occasions is, let's say 14 Dorothy came to see me the day before the statute ran, said 15 I live at the association, I pay duea, they are responsible 16 for doing landacaping, and I sue the aasociation only, the 17 statute expires, and then all or a sudden I find out they 18 subcontract this work out. 19 THE COURT: But that has not happened. If 20 the association was not in control in the manner in which he 21 did the YOrk, how can the a.sociation be held llable merely 22 because it is a landowner? It can't. can it? ~) MR. HtNNINC: Well, I cited a ca.e in my 24 brier, Bille; yer,U& Peter SChlaltl. it was a qrocery store 2S c..... Th4t store'. the OWMr of the property. They have an 111 .,,~..J . . 1 ice company coming in to deliver ice. There they held the 2 store was responsible because they were in control and the 3 owner of the turf. 4 They didn't control the individual acts of 5 the ice company. They pulled their truck up, took the ice 6 out of the truck, put it on carts, wheeled it in, they left 7 drops of water along the way, and the store was held 8 responsible for the actions or that water -- the drips of 9 water that were lert by the ice maker. 10 THE COURT: Here all we got is si~ply -- I'll 11 tell you, I have trouble with the association being in this 12 now that I have heard all of the evidence. We have in ay 13 ~ind a completely independent contract here. 14 I agree you tell them what to do and all 15 those things, you know, you do your tan bark, you do your 16 aeration, you do this, you do that, and maybe you do it in 17 the spring or the fall or we change that, but there was no 18 control that I could see over the operation of Geistwhite at 19 aU. 20 KR. HaNNINa: Arguably there wa. not anyone 21 frea the anociation out there, frOll the evidence that I'. 22 aware of, overs..ing their day-to-day duties. :ll TttE COUlllt: What 1. your al"9UHftt there? Do 24 you wish to hold th.. in? 25 MR. '.lCE: No. lU .-. -- 1 THE COURT: You agree they should be out of 2 this? 3 MR. PRICE: Sure. But the only thing I think 4 what they talk about would separate the independent 5 contractor from an entity that is subject to the control 6 would be if they dictate to me the means and methods whereby 7 I do the work. 8 They can say we want it done in the spring 9 and fall, we want to use double cut tan bark and things like 10 that, we don't care how, when or why you do it. Secondly, 11 the only exception to his i..unity from liability if I'm an 12 independent contractor is if my work involves a peculiar 13 risk. 14 THE COURT: It is hard for lie to see anything 15 peculiar about aeration. You are making a aotion? 16 n. JCROLL: I aa. 17 THE COURT: What kind of motion? 18 KR. lCROLL: I thought I did. I quess It's 19 got to be for a directed verdict now. 20 THt COURT: That is the right motion. The U directed verdict ia granted. Geistwbite's motion for. 22 directed verdict i. denied. 21 Let"s 90 over the point. for cbarqe. 24 Plaintiff'. _ ""l ba cover4td In the qBMul ch...... 'l\Io n is burden of pr-oof. 1't\4lt will ba conred In tM geM."l U9 ~ """"' 1 charge. Three is negligence, and I will define negligent 2 conduct to the jury. 3 Four is ordinary care. I will define that 4 for them. Five. Really the test is the Restatement 5 section, right? 6 MR. PRICE: I believe that's correct. 7 THE COURT: I am going to deny five. 8 MR. HENNING: It is the standard jury charge, 9 and I would just change the wording to Ceistwhite. 10 THE COURT: Everything we are dealing with is 11 Geistwhite. That is denied as stated. six will be charged. 12 That is the Restate.ent standard. When I say charged, if I 13 do not use the absolute exact words, I will cover the 14 concept in the general charge, and that is the standard as I 15 understand it. Seven-- 16 MR. HENNING: This isn't the one I thought. 17 MR. PRICE: I don't think that's applicable. 18 THE COURT: I don't either. I do not think 19 it is applicable. I think we are dealing with the standard :10 in the RestateMnt. Denied. :11 MR. PRICE: No, this Is not the act of a 22 third person. a) THE COUItT I lie are de. U ftlJ here w 1 th the U pereon that caused Ule condition. n MR. KllQCtllG: That vas put in tor roreat no . . 1 Meadows. 2 THE COURT: Eight is not applicable to the 3 remaining defendant, Geistwhite. 4 MR. PRICE: I don't believe nine is 5 applicable, and we go back to the Restatement. 6 THE COURT: I agree. Nine is not applicable. 7 Denied. And I realize these were put in when we had two 8 defendants. 9 KR. HENNING: Nine and the other one that 10 talked about sidewalks, I put those in just -- I don't think 11 we're really at that point. If she had fallen on the 1~ walkway running parallel to the street, I would want to 13 charlie that that's not so.ehow the municipality'S job. 14 Since it's the walkway, I think we're okay. 15 THE COURT: Nine will not be charged, and 16 that is a walkway in safe condition and travel, and that is 17 not applicable with the Restatement section we are at. 11 Ten will not be charged. Eleven is daaages. 19 That will be covered in the \leneral charge, and twelve will 20 be covered in the general charge. 21 Thirteen will be covered in the general 22 charge. It s_.. to .. that the element -- all of the 2:S el...nts of dauqe. MIre, and I ..cte a note s~a.vhere, _ H haft 'JOt put ..sical aM inddenhl expel\Se. claimed, fw ~s put aM future pain and auffuinq, put and future Ui . . 1 embarrassment and humiliation, past and future loss of 2 enjoyment and pleasures of life, past and future physical 3 impairment and we have scarring. 4 Do you want the scarring thrown in? 5 MR. HENNING: Sure. 6 KR. PRICE: What was the next to last one, 7 Judge? 8 THE COURT: Loss of enjoyment and pleasures 9 of life. 10 KR. PRICE: Is that a separate item or is 11 that subsumed under pain and suffering? 12 THE COURT: It is a separate ite. as set 13 forth in the Pennsylvania jury charge instructions at least, 14 and I always do it separately. 15 Fourteen is also mediCAl expenses, covered in 16 the general charge. Fifteen is embarrass.ant and 17 humiliation, covered in the general charge. sixteen i8 the 18 pain and suffering, covered in the general charge. 19 Seventeen Is the pain and suffering concept. It will be ~o covered in the general charge. 21 li9hte.n, future da..ge.. That wHl be 22 covered In the general charge where applicable, not with %3 re.pect to aecllcal and incidental elltpeMe.. Nineteen. the H concept ",111 be covend 1n the CJ8;Mral charge. .. will 2S tventy and t",.nty-one. U2 . . 1 2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 11 18 19 20 H ;U 21 U ~5 Defendant's points. lA through J are all bases of my standard charge to begin with, and all will be covered. Point number two, three, four, five, six, and seven will be covered in the general charge. Eight. We are not really dealing with any issue of aggravation or preexisting condition, right, her shoulder was all right before this accident? MR. HENNING: That's what Dr. Green says and she says. THE COURT: So I am not going to charge eight, and I am not going to mention it. MR. PRICE: You've clarified it, and maybe you want to touch on it tomorrow just to reJIind the jury that the only injury involved here is the right shoulder. THE COURT: And they take her as they find her, and while she has a lot of other maladies, we are dealing with the right shoulder and the disabling injury that resulted fro. it. I agree. Off the record. (Whereupon, a brief discussion was held off the record.) THE COURT: Nine, ten, eleven, t_lve, thirt..n, fourteen, fifteen, sixteen, seventeen, eighteen, n 1net..n -- KIt. PlUel: THE COURT: Nineteen i. repetitious. The concept. will all be covered U) . . 1 in the general charge. Twenty is comparative negligence, 2 and I will certainly charge on comparative negligence and 3 review the standards that a pedestrian has to look where one 4 is going and seeing the obvious, et cetera, et cetera. So 5 that will be covered in the general charge. 6 Twenty-one, well, there we are. There is our 7 standards again of Section 343 of the Restatement, and they 8 will be covered in the general charge. 9 KR. PRICE: Now, there is a second portion 10 there that follows the cites. 11 THE COURT: Let me read that. You are 12 .tarting with the term. moreover. Let.e read that. I do 13 not think I am going to charge that. What you are a.king me 14 to charge i. thi., -Moreover, a po..essor of land is not 15 liable to his invite.. for physical harm caused to them by l6 any activity or condition on the land who.e danger i. known 17 or obvious to th.. unl.s. the po.....or .hould anticipate 11 the harm d.spit. such knowledge or obviousness.- 19 "'.11, that i. built into the conc.pt of 20 number two of the on., two, and thr.. .ection. of twenty-one 21 a. I ... it. 22 KR. I'JlICE: S.., it'. JU blq A prena (1) 21 which says, -A po.....or of land i. not liable to hi. 24 invit... for physical hare cau.ed to th.. by any activity or a condition on the land vhoee daftlJ8t' 1a knovn or obviou. to lH . . 1 them unless the possessor should anticipate the harm despite 2 such knowledge or obviousness." 3 THE COURT: I think that is built right into 4 the one, two, and three standards. S KR. HENNING: My standard jury instruction, 6 or my number six, which is standard jury instruction number 7 seven, it has that language included but with kind of in 8 reverse. It eliminates the double negative. It's in there. 9 THE COURT: You mean the last sentence of 10 your number six? 11 MR. HENNING: If you look at .y six. 12 THE COURT: "An owner of land is liable to 13 his or her invitees ror any harm he or she should have 14 anticipated, reqardless of whether" 15 KR. HENNING: It is right from the standard 16 jury instruction. 17 THE COURT: -- "the danger i. known or 18 obvious." 19 KR. HENNING: That is the standard jury 20 instruction. 21 THE COURT: Is that riqht off the 22 instruction? 2) MR. PRICE: Walt. 81nute. 24 MR. HENNING: Hueber 81x. 2! TIlE COURT: Off the record for th. ...nt. us . . 1 (Whereupon, a brief discussion was 2 held off the record.) 3 THE COURT: I am going to reserve for the 4 Moment to think about whether I use the follow-up language S to A, B, and C of Restatement 343A as set forth in the civil 6 charge instruction recommendations and as set forth in 7 plaintiff's point number six. The actual words are the 8 Restatement 9 KR. PRICE: The actual words are the 10 Restatement, Section 343 and 343 large A. 11 THE COURT: As set forth without the 1II0reover 12 word of point number twenty-one of defendant's point for 13 charge. Any objection to me charging twenty-two? She 14 admits she saw the plugs. 15 KR. HENNING: Yeah, but that uses the word 16 danger. I don't have. problem with any reference to the 17 fact that she saw the.. 18 THE COURT: Is the word obvious -- the words 19 known and obvious are in. 20 MR. HDnfING: They are in both the 21 Re.tatement and the SSJ'I. It say. knowledcJe versus known 22 .nd obviousness versus obvious. 2) THE COURT: 1 will cha~e the definition of 24 obvious, t_nty-two. Twenty-three wlll M covered In the 2S general charge. Twenty-four, varni..,s .... not part of thl.. 116 ~ ~ 1 I think it confuses the jury to talk about warnings. 2 MR. PRICE: The way I read 343 is that I have 3 one of two obligations to the plaintiff. One would be to 4 correct the dangerous condition. One would be in the 5 alternative to give warning to somebody so that they could 6 avoid encountering the dangerous condition. 7 If it's so patently obvious I have no 8 Obligation to warn them -- 9 THE COURT: I am not going to bring warnings 10 into it because, one, she has admitted she saw them. I do 11 not think the warning thing i. relevant, and there are 12 circumstance. where even if it is known and obvious that the 13 possessor of the land can still be liable. So I am going to 14 deny twenty-four. 15 TWenty-five. You want .e to charge that she 16 is qullty of contributory negligence as a utter of law? 11 What is your response to that? 18 KR. HENNING: Absolutely not. I uan, I have 19 no problem with the comparative negligence charge. A lot of 20 times I include it with my own jury instruction.. I didn't 21 at this tiu to s.. if uybe you would slide it through. 22 TIlt COUIlT: The point i. denied. TWenty-six n is comparative '*lU98nce, and I will cbArqe tbAt in the at ,eneral c::barq.. U GelstWllit.'s supple..ntal points. u, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 H 21 H n ~ """ MR. PRICE: Now, if I might just before -- THE COURT: Off the record. (Whereupon, a brief discussion was held off the record.) THE COURT: A we agree is no longer applicable. MR. PRICE: THE COURT: Same with B. And the same with B, no longer applicable. KR. PRICE: Same with C. THE COURT: C is no 10nCJer applicable. MR. paICE: And then we get back into that again. That's applicable but you're going to consider whether you give the standard jury i~struction or a.stat...nt. THE COURT: 0 is the latter part of the 343 charge, and I will have to co.e up with which uthod I am going to us.. 1 aa goiftlJ to have to really think it through. MR. PRICE: The last two are just Restat...nt definitiona of known and obvious, and that can be haftdled a number of way.. I will defer to you. TIll COURT: AM I said I will charge on the 4efinit1on of the un obvious aftd known. MIl. HI]qIUICI 1 1\lst had a couple -- u. " ... _...~ "- . . 1 THE COURT: Anything else on the record? 2 KR. HENNING: Yes, a couple points. Notice, 3 I just don't want there to be any confusion on the part of 4 the jury that somehow we have to prove knowledge or notice 5 because there was a whole line of cases which I don't have 6 the cites -- 7 THE COURT: You know what I am going to 8 charge. I am not going to bring up notice. 9 MR. PRICE: If we create the condition the 10 notice is imputed. 11 KR. HENNING: I know you've reterred to he 12 throughout some of the readings. Are you going to give a 13 standard instruction that 14 THE COURT: The defendant is Geistwhite, Inc. 15 KR. HENNINC: And you refer to he. 16 THE COURT: And I will explain he in this 17 cas& was the company and I will explain the -- II KR. HENMINC: Just by happenstance he 19 happened to be doing the work this day, and I don't want 20 the. to be contused by that. :.n THE COURT: I will aka a note of that. )2 Anythinq else on the record? U MR. HENtflNC: One other point of business. H When _ _ra up at sidebar and _ _ra all t.lUnq at one l5 U.., I'm not sure on the Joanni. lIoble, .nd now that we .... U9 . . 1 carrying over, Joannie Noble was my star before and after 2 witness better than Evelyn Brevhm, even better than Susan 3 Davis, the daughter. 4 THE COURT: I know what you are going to say, 5 but we are finished. 6 KR. HENNING: Can I note an objection on the 7 record? 8 THE COURT: You may. 9 KR. HENNING: I'm not sure that I had 10 specifically stated that. 11 THE COURT: You may. 12 KR. HENNING: And I'll call Joannie toni9ht 13 that she'. free not to be here. 14 (Whereupon, the di.cussion in chambers 15 w.. concluded at 4U9 p...) 16 17 11 l' 2G 21 33 33 24 25 no .. 1 July 10, 1998, 8:4S a.m. 2 carlisle, Pennsylvania 3 4 (Whereupon, the following discussion S was held in chambers.) 6 THE COURT: You have given me new points 7 twenty-seven through thirty-two which in effect are 8 explanations of the comments to the Restatement section, 9 right? 10 MR. PRICE: That is correct. 11 THE COURT: I am not goinq to charge th.. 12 because I feel that my job is to give them the law. It is 13 for the lawyers to explain advocacy, what it means as it 14 relates to a specific set of facta, and pretty much that is 15 what comments try to do. But since we have a set of facts 16 here, I think I will let you make the explanations to the 17 jury, and I am not going to make any additional charge.. 18 I am not -- you specifically asked me to 19 charge on assumption of risk? 20 MR. PRICE: Correct. 21 THl COURT: AM t am goiftlJ to retuse that 22 charge and chel'9- only on coaparative negligence. Be sur_ 2) you protect yourself on the record atter I charge on that. 24 MR. PltICI: WUl you penit .. -- I CJ\Hl.. 15 it'. logled, but let _ uk anyway. Will you penn _ to 131 . . 1 argue assumption of risk to the jury? 2 THE COURT: I will not. 3 MR. PRICE: All right. 4 THE COURT: And lastly S MR. PRICE: Excuse me, Judge. I think I am 6 protected in these supplemental points, specifically 7 thirty-two, I had requested there the standard jury 8 instructions on assumption of risk. 9 THE COURT: You did and I am denying it. I 10 have denied twenty-seven through thirty-two on the basis 11 and the remainder or them on the basis that I will cover the 12 concepts in the general charge on Restatement liability in 13 this case. 14 Lastly, I am going to charge the last 15 statement of the Restatement Section, 383A, exactly as 16 MR. PRICE: 343. 17 THE COURT: 343A exactly as it i. in the 18 Restatement, and then I aa going to tell the jury, or stated 19 another way, and I am going to put it gra...tically in the 20 affirmative. They say exactly the sa.. thing in my opinion. 21 MR. PRICE: Okay. And I take exception to 22 that interpretation. 1 looked at that this morning. and I 23 said to myself it is a separate section, and I believe what 24 it .ays is 343 states a principle of liabillty, and 343A 25 state. an exception to the principle of liability. The way lH . . 1 the standard jury instruction is phrased it doesn't come 2 across as an exception whatsoever. And I know these poor 3 folks sitting here in that jury box are not going to pick it 4 up one way or the other. S THE COURT: Probably not, although I feel I 6 should -- I think it is an easier concept to understand the 7 way it says in the jury instructions, yet we have adopted 8 the Restatement, the court has, and the Restatement language 9 is there. So I am going to do it both ways. 10 MR. PRICE: I would request that the proposed 11 verdict slip be modified to include an initial question. In 12 other words, you've got through six here, I believe, yes. I 13 would request that they be changed to two through seven and 14 add this as question number one because I believe, Your 15 Honor, that is the threshold issue of the case. 16 Question number one that I would propose is 17 aa follows: Did the dirt plug on the sidewalk involve an 18 unreasonable risk of harm to the plaintiff? Yes, no. 19 THE COURT: I a. not willing to do that. 20 Your point is refused. Let's go do it. 21 (Whereupon, the discussion in chambers 22 was concluded.) 23 (Whereupon, the jury ca.. into the 24 courtroom at 1:53 ....) 25 THE COURT: Folks, you vill see one thinq has 133 . . 1 changed. There is one defendant now and one plaintiff. The 2 defendant remaining in the case is Geistwhite Landscaping, 3 Inc., and I have removed the condominium association as a 4 defendant in the case essentially for this reason, so you 5 understand. 6 The allegation, and that is an issue for you 7 to determine, the allegation of negligence is a result of 8 conduct that plaintiff claims was caused during the 9 landscaping and the aeration of this project by Geistwhite, 10 Inc. 11 Whether the landowner and as.ociation in this 12 case, the condominium association, can be liable for any 13 negligence that you may find that Ceistwhite i. re.ponsible 14 ror in this case, and that i. of course an i.sue, depend. on 15 a number of things. One of which was that contract th.t the 16 partie. dealt with at the latter part of yesterday, and I 17 told you I was going to have to go over it. 18 Essentially, and there is mUltiple reasons, 19 and 1 do not have to go into the., but ...enti.lly th.t 20 i.sue revolve. around the que.tion of whether Cei.twhite was 21 an independent contractor or whether Geistwhite even a. . 22 contractor was subject in the aanner that it perforaed it. 23 work to the control of the ..sociation. 2. 1 determined .s . aatter of law in thi. ca.. 2S that Geistvhlte va. a pure independent contractor. While 1'. . . 1 the association directed what work it wanted to have done, 2 the association had no control over the manner in which 3 Geistwhite performed the project. 4 Therefore, if and only if you were to find S Geistwhite liable to plaintiff in this case, I concluded 6 that the association would not be liable as the owner for 7 what Geistwhite did. Therefore, I let the association out 8 of the case. 9 We have the remaining dispute between 10 plaintiff and Geistwhite, Inc., in the case. You will have 11 to determine whether or not the defendant was negligent, and 12 if so whether it was causally negligent, and if so whether 13 plaintiff herself was negligent, and if so whether she was 14 causally negligent, and then based upon your findings of 15 fact resolve the legal issues in the case, and if you find 16 liability, turn to the issue of damage.. 17 They are all matters which I will discus. 18 with you in great detail in a few moments, but that the 19 attorneys now will be discussing with you in aome detail 20 before I give you the charge. Okay, defense. :u KR. HENNINC: If I could just note my formal ~2 objection to allowing Forest Meadove out so it ia on the 23 record. 34 THE COURT: Yes. 25 MR. Ib10lINC: Thank you, Your Honor. us . . 1 (Whereupon, Mr. Price closed on behalf 2 of Geistwhite Landscaping, Inc.) 3 (Whereupon, Mr. Henning closed on behalf 4 of the Plaintiff.) 5 THE COURT: I am always amazed on these, 6 especially on civil cases, that there is quite a bit I have 7 to tell you and am obligated to tell you, so I do it sort of 8 like a teacher since I know this is probably the first time 9 you have ever heard any of this. 10 I go over these points for charge, and I 11 repeat them as I go along, and through both telling you and 12 repetition I think you will understand the issues at the end 13 that separate these parties and how to go about resolving 14 them. IS First of all, the defendant in this ca.e i. 16 Geistwhite Landscaping, Inc. It is the corporate entity of 17 which Mr. Geistwhite has formed. I will often refer to him 18 as Ceistwhite. When I say that, I am referring to the name 19 of the corporate defendant, and a corporate defendant stands 20 in the same capacity in court and is due the aame justice 21 and fairness on your part that the individual plaintiff here 22 is, Dorothy Connolly. 2] Now, unlike a criminal case where the burden 2. is different, in a civil case when a party has a burden of 25 proof on a particular lssue, that party's contentions on ll6 . . 1 that issue must be established by a fair preponderance of 2 the evidence. 3 Proof may not be by speculation or 4 conjecture. The evidence establishes a contention by a fair 5 preponderance of the evidence if you are persuaded that it 6 is more probably accurate and true than not. That is the 7 civil standard of proof. 8 Plaintiff has the burden of proof in this 9 case of proving liability. The defendant has the burden of 10 proving any contributory negligence on the part of the 11 plaintifr. I will review those items as I go through the 12 liability portion or this case, and the plaintiff would have 13 the burden of proving any damages. 14 So where I talk about a party, be it 15 plaintiff or defendant having the burden of proof, burden of 16 proof in a civil case is always by a fair preponderance of 17 the evidence. The evidence establishes a contention by a 18 fair preponderance of the evidence if you are persuaded that 19 it is more probably accurate and true than not. 20 To atate what I have stated before, and all 21 of the attorneys have stated, you are fact finders. First 22 and foremost, you must determine what happened here. There 21 are dispute. as to what happened and what the condltion of 24 the eldewalk was, what Mr. Geistvhlte dId or didn't do When 2~ he wa. out there. You must first and foreaost declde what III . . 1 happened, determine the facts of the case, and therefore 2 judge the credibility and weight of all of the evidence. 3 Credibility does not merely mean truthfulness 4 or the lack of it, although that is an important element. 5 Credibility involves accuracy of observation, accuracy of 6 the testimony you have heard. 7 It is possible that a witness intends and 8 desires to tell the truth, yet through faulty memory or 9 faulty observation could be mistaken in his or her 10 testimony. So you must determine how much or the testimony 11 is both truthful and accurate, for those are the element. of 12 credibility. 13 In passing upon the credibility of any 14 witness, you should consider their accuracy or inaccuracy of 15 memory and observation, their appearance on the witness 16 stand, their manner of testirying, their apparent candor or 17 fairneas or the lack of it, their apparent intelligence or 18 the lack of it, the probabilities or improbabilitie. of 19 their te.timony. their ability and opportunity to acquire 20 knowledge of or to observe matt.rs concerning th.ir 21 testimony, vhether they have given any prior incon.i.tent 22 state..nt. or testimony. 23 In other word., you should consider all of 24 the .urroundIftlJ cirC\l...tan<:es in order to determIne Which of 25 the witne.... are .ore worthy of credit and beliet. and you 11. . . 1 are not bound in accepting even uncontradicted evidence or 2 the uncontradicted testimony of any witness. 3 In judqing credibility and weiqht to be given 4 to the testimony or any witness, you should use your own S understanding or human nature and your common sense. You 6 may consider the interest which any witness may have in the 7 outcome of the case or whether a witness has a friendship or 8 an animosity toward any person concerned in the case. 9 The number of witnesses orfered by one .ide 10 or the other does not determine the weight of the evidence. 11 The important thinq is the quality of the testimony of each 12 witneas; in other words, that testimony which you consider 13 most worthy of belief. 14 Now, you may find inconsistencies in 15 testimony, and even actual contradictions in the te.timony 16 of a witness or witnesses does not always mean that a 17 witness has been willfully fals.. 18 Sometimes a witn.ss forqet. or reaeabera 19 incorrectly or two or more person. te.tifyin; about the .... 20 incid.nt..y s.. or hear it differently. A witn.s. ..y be 21 innocently .i.taken in his or her recollection as to how 22 aoaathinq happened. 23 If ditferinq part. of the te.timony of any 24 witne.. or witne.... appear to you to be inconsistent, you, 2S the jury, should try to reconcile conflictinq statement. 119 ~ ~ 1 whether of the same or differing witnesses if it can be done 2 fairly and satisfactorily. 3 In making this decision, you should consider 4 whether any conflict involves a matter of importance or 5 merely some detail or whether a conflict is brought about by 6 an innocent mistake or an intentional falsehood. 7 If you decide that there are genuine and 8 irreconcilable conflicts of testimony, it is your function, 9 it is your duty to determine which ir any of the 10 contradicting statements and testimony you believe. 11 You should consider all of the racts which 12 might in anyway affect the weight to be given to the 13 testimony of any witness, and you are permitted to draw fro. 14 facts found by you to have been e.tablished by the evidence 15 such reasonable inference. as you deem juatified. 16 Inferences are conclusions which both reason 17 and common sense lead a jury to draw fro. facta which have 18 been established by the evidence, and unlike a guess or 19 conjecture or speculation, . reasonable inference is derived 20 from the process of reasoning whereby fro. facts resolved 21 froa the evidence both a reasonable and a lO9ical conclusion 22 ..y be drawn therefrom. 23 You should consider all of ~h. t..tlaony in H order ~o determine the truth. You should try to teach What ~$ i.. jll.t, . tne, and . cornet IOlution of tbl. 140 . . 1 controversy, and, obviously, you should not be influenced by 2 favor, by prejudice, or by sympathy. 3 We had one witness testify as an expert. 4 That was Dr. Green, an orthopedic surgeon. A witness who 5 has special knowledge, skill, experience, training or 6 education in any particular profession may give an opinion 7 as an expert as to any matters on which that person i. 8 skilled. 9 In general, the opinion of an expert has 10 value only when you accept the facts upon which it is based. 11 Thi. is true whether the facts are assumed hypothetically, 12 come from the witness's personal knowledge, from some other 13 proper source, or from a combination of these. 14 In determining the weight to be given to any IS opinion offered to you by this expert witn..s, you .hould 16 consid.r hi. qualification., reliability, and the rea.on. 17 given for .uch opinions. 18 You are not bound by an expert's opinion 19 merely because the witn... i. qualified. You may accept it, 20 you may r.ject it, a. in the ca.e of all other witn....., 21 and you give .uch testiaony of any expert witne.. the .... 22 wei9ht a. you deem it i. entitled to any witnes.. 23 Now, ..rely because there i. an accldent doe. 24 not create a ri9ht of recovery. Plaintiff claims that she 25 v.. injured and sustained dua... .. a result or the 141 ~~... ."- . . 1 negligent conduct of Geistwhite Landscaping, Inc. Plaintiff 2 has the burden of proving that claim by a preponderance of 3 the evidence. 4 Defendant Geistwhite denies the plaintiff's S claims, and additionally asserts as an affirmative defense 6 that plaintiff was negligent and that such negligence was a 7 substantial factor in bringing about her own injuries. 8 Defendant has the burden of proving this affirmative defense 9 by a preponderance or the evidence. 10 Based upon the evidence presented at this 11 trial, the issues tor you to decide in accordance with the 1~ law are, one, was Defendant Geistwhite negligent? If 13 defendant was negligent, was that conduct a substantial 14 factor in bringing about harm to plaintiff? This is what 15 the law recognize. as legal cause. 16 A substantial factor i. an actual real 17 factor, although the re.ult may be unusual or unexpected, 18 but lt is not an imaginary or fanciful factor or a factor 19 havi"9 no connection or only an insignificant connection ~o with the accident. ~1 Three, was plaintiff negligent, and if so, 22 vas such negligence a subetantial tactor in bri"9ift9 about 23 plaintiff's injury? The 1"81 tsra negligence, otherwise 24 known as careles.nes., Is tha abaence of ordinary care Which 25 a r..sonably pru4ent person or entity would ..erciae in the 142 . . 1 circumstances presented. 2 Negligent conduct may consist either of an 3 act or an omission to act where there is a duty to do so, 4 In other words, negligence is the failure to do something 5 which a reasonable careful person or entity would do or the 6 doing of something that a reasonable careful person or 7 entity would not do in light of all of the surrounding 8 circumstances established by the evidence in this case. It 9 is for you to determine how a reasonable careful person or 10 entity would act in those circumstances. 11 Ordinary care is the care a rea.onable 12 carerul person or entity would use under the circumstance. 13 presented in this case. It is the duty of every person and 14 entity to use ordinary care to avoid injury to others or 15 their property. 16 What constitute. ordinary care varie. 17 according to the particular circumstance. and conditlon. 11 exi.ting. The amount of care required by the law must be in 19 keeping with the degree of danger involved. 20 Accordingly, plaintiff has the burden of 21 proving defendant'. negligence and that that negligence va. 22 a .ubetantial factor in bringing about her injurie.. 23 ...ide. denying thi. -- be.ide. denylng that it va. 24 neqligent, defendant e\alm. that plaint'f! v.. 25 contributorily neqll98nt. 14) . . 1 Defendant has the burden of proving such 2 contributory negligence and that any contributory 3 negligence was a substantial factor in bringing about 4 plaintiff's injury. S Geistwhite Landscaping, Inc., is required to 6 use reasonable care in the maintenance of the property of 7 the Forest Meadow Condominium Association where it was 8 working as an independent contractor and to protect the 9 people who use that property from foreseeable harm. 10 Ceistwhite is required to inspect the 11 premises upon which it works and to discover any dangerous 12 conditions it created and use care not to injure a person 13 using the property by negligent activity. 14 Whether there was a dangerous condition on 15 the premises caused by defendant, as plaintiff clai.., 16 involves the condition of the entire walk that plaintiff 17 maintains she was traversing and fell as she was 90ing from 18 a car to her tront door. You aust determine what the 19 condition of that walk was and did eeistvhite cause that 20 coftdition. 21 GeistWhlte would be Uable for any un 22 cauaed to plaintitf wbo uaed the property Gel.twbit. ws. 2) aaintalnlftlJ it it, one, knew or by the ...t'Cbe ot H reasonable c.... would ha'" dl.cov.r4ld the condition and <IS shOUld "".,. ....lhed that it Involftd .n \itU'tlasOMbl. risk 144 ~ ,... 1 of harm; and, two, should have expected that plaintiff would 2 either not have discovered or realized the danger or would 3 have failed to protect herself against it; and, three, 4 failed to exercise reasonable care to protect plaintiff S against the danger. 6 Geistwhite would not be liable to persons 7 using the property for physical harm caused by it by any 8 activity or condition on the land whose danger is known or 9 obvious to that person unless Geistwhite should anticipate 10 the harm despite such knowledge or obviousness; or stated 11 another way, Geistwhite would be liable to a person using 12 the land for any harm it should have anticipated, regardless 13 of whether the danger is known or obvious. 14 The word known denotes not only knowledge of 15 the existence of the condition itself but also appreciation 16 of the danger it involves. The word obvious .eana that both 17 the condition and the risk were apparent to and would be 18 recognized by a reasonable person using the land exercising 19 ordinary perception, intelligence, and judqaent. 20 NOW, that is the specific law with respect to 21 Geistwhite, Inc, applying the law of negligence under the 22 definitions that I have already 9iven you. This is the law 23 with respect to plalntiff. Dorothy Connolly, also applying 24 the general 1." of neql1qence that I have given you. 2S Generally a peuon valltlftlJ Is reqlllr'ed to 1U . . 1 look where she is going and see the obvious, although she is 2 not required to keep her eyes glued to the ground. One who 3 without excuse fails to observe a dangerous condition 4 plainly visible and proceed without regard to her own safety 5 would be negligent. You must examine the entire situation 6 which resulted in this fall taking place. 7 For example, what was plaintiff doing at the 8 time she rell? What was the condition of the area? What 9 did plaintiff know about the condition? What would 10 plaintiff see? What did she see? What kind of room was 11 there for her to walk? Were the circumstances such that 12 plaintiff would be distracted from paying attention to where 13 she was walking? 14 In other words, you should consider all of 15 the circuastances in determining why plaintiff fell. You 16 must determine whether plaintiff was contributorily 17 negligent, and if so, whether such neqligence wa. a 18 subatantial factor in causing her injury. 19 How, under the law, if plalntiff has failed ~O to prove by a preponderance of the evidence, one, that 21 defendant vas neqliqent, and, two, that it vas causally 22 negligent, that is the leqal causation a.pect, then 23 plaintiff cannot recover. H How.ver. if plaintiff ha. proven by a 2! pnpondeunce of the evidence that defendant va. callHlly 146 .. . 1 negligent, you would then go to the issue raised in the 2 affirmative defense by defendant of whether plaintiff 3 herself was causally negligent. 4 If you determine that she was not causally S negligent, then you would go to the issue of damages. If 6 you would determine that she was causally negligent, then 7 you would apply the comparative negligence statute of 8 Pennsylvania. 9 If you find that plaintifr and any defendant 10 was causally negligent in bringing about plaintiff'S harm, 11 then, as I said, you would apply this comparative negligence 12 statute. 13 Under this circumstance, it is your duty to 14 set forth the percentage or causal negligence attributable 15 to plaintiff and the percentage of causal negligence 16 attributable to defendant. 17 The total of these percentages must be one 11 hundred percent, and we have two parties. In apportioniftlJ 19 causal negligence, if you are in this situation, you should 20 use your coaaon ..nse and experience to arrive at a result 21 that is fair and reasonable under the facts of this eccident 22 solely as you have determined th.. from the evidence. 2) If you find and are In this situatlon that 24 plaintiff's cauaal negli~nce vas greater than the cau.al 2S negligence ot defendant, in other words, ~ th.n SO 141 .. . 1 percent, then under Pennsylvania law, even though you would 2 have found causal negligence on the part of the defendant, 3 plaintiff cannot recover. 4 If you are in this situation and if you were 5 to find that plaintiff's causal negligence was equal to or 6 less than the causal negligence of the defendant, either 50 7 percent or less, 1 percent to 50 percent, then you would go 8 on to determine the total amount of damages to which 9 plaintiff would be entitled. 10 If you are in this situation in setting the 11 total amount of damages, you ahould not consider the 12 percentages, if any, of any causal negligence you may find 13 on the part of the plaintiff. 14 If you are in this aituation after you return 15 your verdict, I will reduce the allount of the total damage. 16 you award and have found for plaintiff in proportion to the 17 amount or the causal negligence you have attributed to 18 plaintiff. 19 1 all going to discuss damages. Then I .. ~o goiftlJ to coee beck and I .. qoiftlJ to go over the.e points 21 both on the duties .nd the l'eepoMibllities of each of the n parties, the law of neql1pnce, thi. coaparatlve neql1.,.nce U statute, daaaqe. eta1n. U I a. 'IOint to 9ive you . verdict sUp that JS outlines this at that point for you to follow elOftlJ vith .., 141 . . 1 and hoperully as a result of this process you will fully 2 understand. I have said a lot quickly and I realize that. 3 If you are in the situation where you award 4 damages under the circumstances that I have provided to you, S in this case the damages you should consider are as follows. 6 You should award an amount of compensatory damages that you 7 find will fairly and adequately compensate plaintiff for any 8 and all physical and financial injury which you find from 9 the evidence plaintiff has sustained as a result of 10 defendant's conduct. 11 Importantly in this case, and it has been 12 clarified by the lawyers on numerous occasions, we are 13 talking here solely about the injury and the complications 14 to defendant's shoulder. We are not talking about other 15 conditions that she bas at this stage of ber life which 16 clearly are not tbe cause -- or have not been caused by this 17 fall. 11 You veiqh the credibility of testi~y and 19 evidence regarding da..qe. just like any other evidence 20 presented in the e..e. Any amount of claug.. you award must 21 be reasonable and !lUst compensate plaintiff completely for 22 iSau..s you find _re sustained in the put as _11 a. any 23 claaaqea YOu find plaintiff vill sustain In tbe future. 24 file tNrden of pfiWinq any cla~. is on as plaiJ\Uff by a pnponderance of the evidence. ~ uy at J . .--" -........ -- . . 1 not be awarded on speculation or conjecture. compensatory 2 damages may not be assessed to punish a defendant. 3 In this case if you award damages, the 4 compensatory damages must be awarded that you find were 5 caused by this accident and would be recoverable as follows. 6 One, medical and incidental expenses. The parties have 7 agreed, and there ia no evidence, that as a result of this 8 injury, this shoulder injury, that plaintiff will be 9 incurring any future medical expenses. 10 They have alao aqreed what the medical 11 expenses and the incidental expenses were as a result of 12 this shoulder injury and this fall on October 19, 1994. I 13 believe an exhibit will qo out with you setting forth those 14 figures. 15 My recollection, and it is for you to 16 deterwine, is that the medical expenses total $28,312.49 and 17 that the incidental expenses, there are two cateqories, 18 total '4,238.00 and an additional $285.00. That would be 19 the fir.t it.. of 4a..,e., medical and incidental expen... 20 incurred. 21 T!\e s~ woulcl be past and future pain and 22 suffering. Plalntlff would be entitled to be fairly and U adequately eoepeMatttd for a\ld\ physleal pain, ..nUl 24 aN,J\ltsh, cU.c:oafort, tncon....nlance aftd distre" that you as find~. batl endured frOll the Uae of the aecldent \&nUl no ... . 1 today and that you rind she will endure in the future as a 2 result of the injuries incurred from this accident. 3 Three, plaintiff would be entitled to be 4 fairly and adequately compensated for such embarrassment and 5 humiliation that you find has been endured to date and that 6 you find she would endure in the ruture as a result of the 7 injuries incurred in this accident. 8 Four, plaintiff would be entitled to be 9 compensated for the scarring caused by the operation 10 procedure that you find she endured in this accident. 11 Five, plaintiff would be entitled to be 12 fairly and adequately compensated for any past and future 13 los. of the ability to enjoy any of the pleasure. of life or 14 inconvenience that you find she has incurred as a result of 15 injuries caused by this accident. 16 And last, plaintiff would be entitled to be 17 fairly and adequately coapensated for any past and future 18 loa. of physical impai~nt that you find ahe has incurred 19 or will incur in the future a. a result of injuries caused 20 in this accident. 21 So to recapitulate the daaeqe portion of the 22 case, plaintiff wouid be entitled to be fairly and 2) H4Iq\Mtely ~"sated for tM aedlcal and incidental a. .xpe~, for any pa.t and future ,.In and ,uffering, a. I .as Nt... ~ri'" It, Wftich ia Hch pIlyalcal ,.in, MftUl lU . . 1 anguish, discomfort, inconvenience, and distress, for any 2 past or future embarrassment and humiliation, for the 3 scarring caused by the operative procedure, for any past or 4 future loss of the enjoyment of life, and for any past or S future physical impairment caused as a result of the 6 injuries incurred in this accident. 7 If you award damages under Pennsylvania law, 8 you must award one total figure. You will see on the 9 verdict slip I am going to give you in a few moments that 10 there is no separation of these elements of damages. 11 The attorneys have properly indicated to you, 12 unlike some jurisdictions, counsel for plaintiff may not ask 13 for a specific sua, and coun.el for the defendant may not 14 aU9ge.t a .pecific sua. 15 If you award daaage., you award the. under 16 the atandards that I have charged you. Plaintiff has the 17 preponderance of proving damage. by -- has the burden of 18 proving damages by a fair preponderance or the evidence. 19 You will con.ider all of the.e eleaent.. You 20 will arrive at one total figure, and you will put that total 21 f19ure on the verdict .Up. If you haft found ._ n contributory neql1~nce on the part of the plaintiff, that U would be SO percent or le.., then you wlll not reduce that U allO\U\t of d....,... bI.It 1 later will mold the ftrdict under 25 Pennaylvania law by taUftlJ wb&teftr that percent..- lUIOUnt u, _J . . 1 is, and it can be anywhere from 1 to SO percent, and 2 reducing the total amount you awarded by that percentage 3 amount. But you do not get into that ir you are in this 4 situation. S Now, another thing I say to the juries at 6 this point, I have discussed all these possibilities because 7 you must consider all of these things in arriving at a fair 8 and a just verdict for plaintiff. By going over the various 9 possibilities and by reiterating them in a few moments, I 10 obviously do not suggest to you in anyway what your verdict 11 should be. 12 You are the fact finders. You apply the law 13 that you find is applicable to the facts that you find, and 14 you render a fair and just verdict based on the standards IS that I have charged you. 16 Now, let's go over again the liability 17 aspect.. Then I will give you a copy of the verdict slip, 18 and then I will just reiterate again the damage., and we 19 will get you on your way. 20 I haVe !Jiven you the definitions of :a neql1gence, of ordinary care, of what the dutie. are 2~ generally with respect to neqli/Jence, and specifically in ~) tbis cue under th... -- ~nd.r the evidence that has been H presented, Ceiatvh!te LandacaplftlJ,lnc.. 18 rltquired to us. n reasonable car. In the ul:\tenance of the property of rcrest lU . . 1 Meadow Condominium Association where it was working as an 2 independent contractor and to protect the people who used 3 that property rrom roreseeable harm. 4 Geistwhite is required to inspect the S premises on which it works and discover any dangerous 6 conditions it created and use care not to injure a person 7 using the property by negligent activity. 8 Whether there was a dangerous condition on 9 the premises caused by defendant, as plaintiff claims, 10 involves the condition of the entire walk that plaintiff 11 maintains she was traversing and fell as she was going from 12 a car to her front door. You must determine what the 13 condition of that walk was and did Geistwhite cause that 14 condition and was it a dangerous condition. IS Geistwhite would be liable for any harm 16 caused to plaintiff who used the property -- I'm sorry. I 17 am going to restate that. Geistwhite would be liable for 18 any harm caused to plaintiff who used the property 19 Geiatwhite was maintaining ir it, that is Ceistwhite, one, 20 knew or by the exercise of reasonable care would have 21 discovered the condition and should have reali.ed that it 22 involved an unreasonable risk of harm; and, two, should have 23 expected that plaintiff would not have discovered or 24 realiled the dang.r or would h4ve falle4 to protect her..lf 25 a;ainst it; and, t.hree, faile4 to exercise rsasonable car. 15. . . 1 to protect plaintiff against the danger. 2 Geistwhite would not be liable to persons 3 using the property for physical harm caused by it for any 4 activity or condition on the land whose danger is known or 5 obvious to that person unless Geistwhite should anticipate 6 the harm despite such knowledge or obviousness, or stated 7 the other way, that is the negative, but stated in the 8 affirmative, Geistwhite would be liable to a person using 9 the land for any harm it should have anticipated regardless 10 of whether the danger is known or obvious. 11 with respect to plaintiff'S conduct, 12 generally a person walking is required to look where she is 13 going and see the obvious, although she is not required to 14 keep her eyes glued to the ground. 15 One who without excuse fails to observe a l6 dangerous condition plainly visible and proceeds without 17 regard to her own safety would be negligent. You aust 18 examine the entire situation which resulted in this fall 19 taking place. lO For exaaple, what was plaintiff doing at the 21 ti.. &be fell? What wa. the condition of the area? What II did plaintiff know about the condition of the area? What 23 would plaintiff .ee? What dld she ..e7 What kind of room 24 vas there (or her to walk? Were the circuastance. .~ch that 25 plaintiff would be distracted from paying attention to where lSS .. . 1 .hs was walkin9? 2 In other word., you .hould consider all of 3 the circumetances in deter.ininq why plaintiff fell. You 4 mu.t deter.ine whether plaintiff wa. contributorily 5 ne9l1gent, and if eo, whether such negligence was a 6 eubetantial factor in causlnq her injury. 7 Now, Gerry, would you give one of these to 8 each of the juror., and this ie the verdict slip. You will 9 keep each one of the.e as you go upstairs, and then I will 10 9ive you an original that we will work with and return as a 11 verdlct in the ca.e. 12 Cerry, tell Sharon to order lunch for the 13 jury, pl.a.e. 14 MR. KAUFFMAN: Ye.. lS TIlE COURT: LIt'. qo down the verdict .Up. 16 Plalnt1ff i. Dorothy Connolly. Defendant is Geistwhite 17 Landscaplng, Inc. ou..tion one, do you find defendant was 11 neqllqent? If you anawer that question no, you know 19 plaint1ff cannot recover aqaln.t defendant. That would be 20 it. You would return. Plaintiff would not be able to ~ 1 recover. and the ca.e would be over. H Two, U you IftS_r que.tion one v- that ~) def.ndant was negliqent, then wa. defendant's neqligence a l4 .ubstantial factor 1n bringing about plaintiff's harm? l\ ThAt'. '..a' caueatlon. In other word., va. the 1\6 . . 1 circumstance of defendant's negligence a cause of 2 plaintiff's fall and the injury that occurred. That is what 3 legal causation means. 4 If you answer no, then plaintiff could not 5 recover and the case would be over. But if you answer yes, 6 then and only then you would have found causal negligence on 7 the part of defendant and you would move on. a Then you would move onto plaintiff's conduct, 9 and you would examine plaintiff's conduct under the same 10 standards and under the specific standards related to 11 plaintiff as you would examine defendant's conduct under the 12 general standards of negligence and the specific standards 13 applicable to defendant. And the questions are the sa.., 14 was plaintiff contributorily negligent. 15 NOW, if you found defendant causally 16 negligent and plaintiff was not contributorily negligent, 17 then you would go right on to the daaage question, which is 18 question six at the end, and we will get to that. That is 19 the last page. 20 If, h~ver, you found cau.al negUgence on 21 the part of the defendant and that plaintiff was 22 contributorily neqligent, then you would 90 to que.tion 2) n8ber four, whlch 1. the legal C&llnt1on. That is tbe 24 cauntion que.tion applicable to plaintiff the .... a. it 1. 25 applicable to defendant. 1~' .. .. 1 That question is, was plaintirf's 2 contributory negligence a substantial ractor in bringing 3 about her harm? And that is as I have described legal 4 causation. If you answer the question no, then plaintiff 5 would not be causally negligent. You would go right on to 6 the damage question number six. 7 However, and again this is strictly for you 8 to determine, if you have already found defendant causally 9 negligent and you answered question four yes, then you would 10 have found both plaintiff and defendant to be causally 11 negligent. Then and only then you would be in the situation 12 of question number five, which is the Pennsylvania 1] comparative negligence statute. 14 Because here if you round both causally 15 negligent, you have to compare the degrees of causal 16 negligence each party against the other. We have two 17 parties here. The total has to be a hundred percent. 11 So question five is, if you have answered 19 yes, as 1 have indicated, taking the combined negligence 20 that was a substantial factor in bringing about plaintiff's 21 harm as one hundred percent, what parcentage of that cau.al ~2 negligence wa. attributable to defendant, and What 2) percentage wa. attributable to plaintiff? There 1s a place 24 for Celstvhite. There is . place for connolly. You put 25 th.. in. They must total One hundred percent. ua . . As I have already told you, under Pennsylvania law, and it dirfers in all jurisdictions, under Pennsylvania law, if you were in this situation and if you found plaintifr was more than 50 percent causally negligent, then plaintiff would not recover and you would not go onto 1 2 3 4 S 6 the issue of damages. 7 If you are in this situation and if you found 8 plaintiff causally negligent between 1 and 50 percent, any 9 point from 1 to 50 or in between, then plaintiff could still 10 recover and you would go onto damages. 11 Ir you were in this situation, when you 12 awarded total damages, you would not consider any causal 13 negligence of plaintiff, and I would later mold the verdict, 14 as I have said, reducing it by whatever the percentage 15 figure is between 1 or 50 percent. Remembering, if it i. 16 more than SO percent, then plaintiff cannot recover. 11 Then you would go on, if you are into the 18 damage question, question six, state the total amount of 19 daaagea, if any, you find plaintifr sustained without 20 reduction for the percentage of causal negligence, if .ny, 21 that you attributed to plaintiff. 22 I h.ve reviewed tho.e with you. They are the 21 medical.nd incidental, the pa.t and future pain and 24 .ufferinq, the past and future eabarr.....nt and 25 humiliation, the acarrinq, tbe paat and future 10.. of 159 . . 1 enjoyment of life, the past and future physical impairment, 2 all of course plaintiff has the burden of proving by a 3 preponderance or the evidence were caused as a result of 4 this accident, and then you would render your total verdict 5 as the case may be. 6 The rirst thing I suggest you do when you 7 retire to deliberate is select one of your members as a 8 foreman. By that I mean either a man or a woman. It is the 9 job of the foreman to conduct the deliberations of the jury 10 in an orderly and a civil manner and to take the votes 11 necessary to resolve all or the issues before you. 1~ In a moment there is going to be 12 of you. 13 I will be dismissing the alternate jurors because alternate 14 jurors cannot participate, but the alternate jurors have a 15 purpose here. This trial took, what, three days? If 16 something happened to one or more of you, I could have 17 replaced you and we could have continued on. 18 If we go less than 12 jurors at any point 19 during the trial, I must declare a mistrial unless the 20 parties would agr.e to go on with fewer jurors, and we would 21 have to do it aqain. So that is why we have alternates 22 here. 2) You have been attentive juror., you have all 24 s~ up, and in a eoa.nt I a. golng to di..i.s the 2S alternate., and the alternat.. will not 90 back and 160 . . 1 deliberate with this jury. You should stay here, and I will 2 give you my thanks and tell you a few odds and ends and then 3 send you on your way. And those alternates are juror number 4 67, Gerri Myers, and juror number 114, Steven Gray. You two S are not going to get to do this. 6 Now, your function as jurors is to reach a 7 fair conclusion from the evidence and the applicable law. 8 Your verdict should be reached only after careful and 9 thorough deliberation in the course of which you should 10 consult with each other and discuss the evidence and the 11 reasonable inferences to be drawn therefrom. 12 Your verdict must represent the jury's final 13 judgment, and while it is important that the views of e.ch 14 of the 12 jurors should be considered, it is not necessary 15 in a civil case under Pennsylvania law that your verdict be 16 unanimous. 17 In Pennsylvani., and the l.w applicable to 18 this case, if either 10, 11 or 12 of you agree on . verdict, 19 that will constitute. l.wful verdict, .nd we will take your 20 verdict WIder Pennaylv.nia law. 21 ttow, wh.t that ..aM, and very iaportant What 22 it ..aM, i. that with respect to .11 ans_ra set forth on <l3 thi. verdict .Up, h~Yer ..ny quest10M you an._r and 24 however you anawr U,.., the .... 10, the .... 11, or the n .... 12 ..t ...... to an the ans",.,... It c.nnot be . 16' . . 1 hodgepodge between 10, 11, or 12 different ones forming a 2 verdict that way. 3 So the first question I am going to ask the 4 foreman when you come down is, how many jurors agree with S the entire verdict, all of the questions, the same 6 questions? If I hear 10, 11 or 12, I will take your 7 verdict. If I hear less than 10, I will shoo you back up to 8 the jury room to deliberate some more. So the same 10, the 9 same 11, or the same 12 must be consistent in answering all 10 of the questions and agreeing with those answers on the 11 verdict slip. 12 You have heard I have ordered you .ome lunch. 13 It won't be the greatest lunch you ever had, but it will be 14 a decent square. I will get so.e sandwiches and odds and 15 enda from down at Scallea. They make pretty good lunche.. 16 Take your time. You are under no time constraints. You 17 take whatever time is necessary to resolve this case and 18 provide justice for both parties. 19 I am glad, very qlad, _ brought you back 20 today and we did not push you to do thb last eveniftlJ, and n you have got whatever time you need. Also, I have told you 22 a lot. You have heard a lot from the attorneys. It ha. 21 been a relatively short trial, but we have had a lot of 24 evldence in. 25 At this staga U you MYe any paUona, tha U<l . ~ -........ .'- . . 1 jury foreman should write the question or questions down on 2 a piece of paper and qive it to our tipstaff. I will bring 3 you down, and I will try to answer your questions. 4 I remind you, fact finding is your province. S It is not for me to answer questions regarding facts. If 6 you have any questions regardinq the law or the principles 7 that I charqed you that you need reviewed or to hear again 8 and to explain regardinq your resolution of this case, I 9 will be more than happy to do it as aany times as you need 10 me to do it. 11 So if you have soae questions and you qo back 12 and you have some _ore questions, come on down and we will 13 do it again. realizing that I have qiven you a qood bit in a 14 short period of time, and this ia the first time you have IS heard it. 16 Counsel have any additions or objections to 17 add to the charqe? 11 MR. PRICE: Ye., Your Honor. 19 (Whereupon, the following discuaaion 20 was held at .idebar.) 21 THI COURT: Plaintiff firat. U MR. HDnfINC: I just want to note on the 23 record an objection for the faUure to chal"ge number five, H aaftll, and ten that w.re in our jury charqe.. 25 THE COURT: So noted. 161 . ,"'-'M -- .. . 1 MR. PRICE: I believe to the extent we submit 2 points for charge and the Court doesn't give them we have an 3 automatic exception, but to the extent we need to make it, I 4 will take exception to all my points for charges that were S submitted and were not given or not covered. 6 THE COURT: So noted. 7 KR. PRICE: Secondly, I will take exception 8 to the charge that separately itemizes the ability to enjoy 9 the pleasures of life and physical impairment, as I believe 10 that they are subsumed under pain and suffering. 11 Finally, I would make an objection to the 12 instruction that the indeterminate dangerous condition the 13 jury can't take into consideration the condition or the 14 entire sidewalk as opposed to the sidewalk and the dirt plug 15 specifically involved in this incident. 16 THE COURT: So noted. 17 MR. PRICE: Thank you. 18 (Whereupon, the discussion at sidebar 19 Was concluded.) 20 THE COtJR1': You want that contract to go out 21 now When _ dO not have the other party here? 22 MR. PRICE: I... no reason. 2) 0. KDnflMGI 110. H THE cotI1tTl I don't either. It _ bad the 25 aasociation stlll 1n the case, I would have sent that 16* . . 1 contract out. But that contract helped me resolve the legal 2 issue, and you know the association is out of it. So I will 3 not send that contract out. 4 We will send exhibits out, most of them. S There are some pictures, there is the shoe, there is the 6 plug, there is a compilation of the medical and incidental 7 expenses, there are three pictures of this equipment that 8 came in that Geiatwhite used. 9 What won't go out is that contract because 10 now it is not an issue that you need to use to resolve this 11 case, and what alao will not go out, of course, is the 12 transcript and the video recordings. That is done just as 13 witnesaes here, so that stuff will not go out with you. The 14 rest of the exhibits we will send up with you. 15 Here is the original verdict slip. The 16 foreman when you have a verdict -- when you have a verdict 17 of either 10, 11, or 12 of you that agrees with all of the 11 ans~s that you ansver on this verdict, it should be filled 19 out, the foreman should sign it and date it, and we will ~o briftlJ you down and _ will take your verdict. ~1 Folks, obviously thi. matter bet-.n all of ~2 tb... partie. is for th.. a ..rious one. They rely upon you U to qi_ full and conscientious consideration and ~4 deliberation to the ls.u.. and evidence before you. 25 lOll shOUld not be innuanced by anytblftlJ 1" 2. In civil cases just as this one, the Plaintiff has the burden of proving those contentions which entitle her to relief. When a party has the burden of proof on a particular issue, her contention on that issue must be established by a fair preponderance of the evidence. The evidence -~-- establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. To put it another way, think, if you will, of an ordinary balance scale, with a pan on each side. Onto the one side of the scale, place all the evidence favorable to the Plaintiff; on the other, place all the evidence favorable to the Defendants. If, after considering the comparable weight of the evidence, you feel that the scale is tipped, ever so slightly, or to the slightest degree in favor of the Plaintiff, your verdict must be for the Plaintiff. If the scales tip in favor of the Defendants, or likely balance, your verdict must be for the Defendants. In this case, the Plaintiff has the burden of proving the following propositions: that the Defendants were negligent, and that the negligence was a substantial factor in bringing about the accident. If, after considering all of the evidenca. you feel persuaded that these propositions are more probably true than not trUCI, your verdict must be for the Plaintiff. Otherwise. your verdict should be for the Defendants. PI. SSJIICiv.) \5.50. 6. An owner/occupier of land (premises) is required to use reasonable care In the maintenance 8nd use of the property. If you find that Defendant Forest Meadows Condominium Association has failed in this regard this is negligence which may make them liable for any resulting damage to one lawfully on the property. What Is reasonable care depends on, and must be in keeping with, the use defendant expected to be made of the property. Pa. SSJI (Clv.) 17.00. // . \(,tl -1/..". ' ~ f - . , , ( r" " , .,""'. , j~' rr*1; . " " / . 8. A possessor of land who holds it open to the public for entry for his business purposes Is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent. or intentionally harmful acts of third persons or animals. and by the failure of the possessor to exercise reasonable care to: a) discover that such acts are being done or are likely to be done, or b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. Independent contractors and concessionaires. The rule stated applies to the acts of independent contractors and concessionaires who are employed or permitted to carry on activities upon the land. The possessor is required to exercise reasonable care, for the protection of the public who enter, to supervise the activities of the contractor or concessionaire, including the original instaRation of his appliances and the operation and his methods. Restatement of Torts (Second) t 344 and Convnent c. rJ l} 13. In this case, ladles and gentlemen, the Plaintiff, Dorothy Connolly, received injuries for which she is entitled to recover. Before Instructing you, I will explain each of the types of damages which are recoverable. Plaintiff, Dorothy Connolly is entitled to recover for: (a) the cost of prOfessional medical treatment and Pa. SSJI (Civ.) S6.01. c~ care; (b) past and future suffering; (c) past and future embarrassment and humiliation; (d) past and future loss of enjoyment of life; 2. It Is for the jury to determine how seriously the Plaintiff has been injured and what allowance. if any, should be made to her for pain and suffering. past. present and/or Mure. Even uncontradicted evidence of pain and suffering need not be accepted by the jury. Kirbv v. Carlisle, 178 Pa.Super. 389 (1955); Reao v. Nelson, 194 Pa.Super. 317, 166 A.2d 288 (1960). ~ 3. Damages may not exceed compensation for compensable loss and damages should be awarded with the least burden to the wrongdoer consistent with the idea of fair compensation to the injured party. lncollinao v. Ewicg, 444 Pa. 299. 282 A.2d 206(1971). Ct""" - 4. The purpose of awarding monetary damages is not to punish a Defendant or to reward a PIaintiI'f. but rather the purpose is to fairly COl'l'lpell$ate the Plaintiff for any damages which you may find she has sustained. c....c-- 5. There is no legal yardstick that can be used to measure accurately what woukl be reasonable compensation for pain and autrering. Damagea for pail and auffemg should not be awarded on the basis of ~. benewIence or sentimentality, but should be Ilmitad to reasonable compensation for the irlurY SUSIained. Bestwick v. PiNhIl'gh RaiIwlIv, 225 Pa. 397 (1917); Buraan Y. ~. 373 Pa. 608. 96 A.2d 889 (1953) c.. <. _ , 13. A jury may not reach its verdict merett on the basis of speculation, guess or oonjec.ture, but there must be evidence, direct or circumstantial, upon which its conclusion may be logically based. Uamann v. Scranton ~ BotIIina Co,. 422 Pa. 518. 223 A.2d 17 (1966). Cf' witness. A jury need not believe the testimony of a plaintiff and her witnesses conceming injuries. GottlQb v. Hilleoas. 195 Pa.Super.Ct. 453 (1961). ". The jury is not bound to accept Plaintiffs testimony nor is it bound by the opinions of his medical witnesses or their version of the circumstances. Gaits v. Pamula. 385 Pa. 171, 122 A.2d 63 (1956). c.tl 12. A jury may not reach its verdict on mere speculation or conjecture. Smith v. Bd..Telephone Co., 397 Pa. 134. 153 A.2d 4n (1959). c.~ 14. Any verdict which you return must be based aoIeIy and e.dilMy upon the evidenc:e pmlllted and the law which is appIKlbIe. You.. instruded that you (a'i'-lOt return . verdict for or IIglIilst eilher party based upon tr,mp8thy for the PIIinIi1f -- of the irpies 111118illed or based upon bias or prejudice lIg8inIt the Defendant In the eyes of the law. the Ptaiutilf and the 0etIndant in thlI c:ase are eqt',le. eedI twvillg ... and ~ which you must ,..c.". fairty, juIlly and ~\~ bated upon your rell1Ol\ and not)lOUf amotiorl ~c.. 19. You should not allow sympathy, emotion or prejudice to influence your deliberations. You should not be influenced by anything other than the law and the evidence of the case. Pa.S.S.J.I. 20.00. c'-- 20. It is the law of Pennsylvania that a person has the duty to look where she is walking and see that which is obvious. If you find that the Plaintiff did not look where she was walking or that the condition that allegedly caused her to fall was plainly visible, then you must find her negligent. Lewis v. Duauesne Inclined plane Co., 346 Pa. 43. 28 A.2d 925 (1942); Villano v. Securitv Savinas Association, 268 Pa.Super. 67, 407 A.2d 440 (1979). or- 21. The defendant. as the possess<< of land. is subject to liability for physical harm caused to the plaintiff by a condition of the property only if the plaintiff proves the ~ following three factoq by a fair preponderance of the eviUlnce: 1) that the d6falldant knew or by the exercise of reasonable care, would have discovered the condition and should have realized that the condition involved an Ul1I1llIIOn8bIe risk of harm to visitors, such as the pIaintitf; and 2) that the dllfendlnt should ha'Je expedecI that the pIaintitf would not 1fiscovef Of ...tile the danger. or would fai to proIect herself again$t it; and 3) that the deIInda'lt failed to ell8l'dse ~"ClNlble ear. to pt'*<:l the ptafu\tilf _lit the <SInger. Restllll11e1lt (Seeood) of Torts. Sectiof\ 343; Wi*lf v. Seven SDrinas Farm. Inc., 240 Pa.Super. 641, 359 A.2d 440 (1976), (lffirmed, 477 Pa. 445, 384 A.2d 241 (1978) ~oreover # possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts, Section 343(a). 22. For purposes of liability of a possessor of land to an invitee, a danger is deemed to be obvious when there is a condition on the land which aeates a danger and the danger is apparent to and would be recognized by a reasonable person in the position of an invitee exercising normal perception, illteUigence and judgment. Carrender v. fitterer. 503 Pa. 178.469 A.2d 120 (1983). 23. The Defendants are not the guarantors of the plaintiffs safety and, therefore, the mere happening of an accident is not evidence or proof of negligence and does not impose liability upon the Defendants. TreadwaY v. Ebert ~ ComDanv. 292 Pa.Super. 41, 436 A.2d 994 (1982). r 24. The Defendants hmt no duty to warn the PIaintitf 8bout. known and obvious danger. RestItenwIt (Second) of Torts. ~ 343A; earIWldef v. f-, 503 P.. 178. _ A-2d 120 (1983) ! , '\ '\ . attributable to her. 42 Pa.C.SA. Section 7102(a). . C-/ 25. A Plaintiff who fails to observe or heed a dangerous condition which is plainly visible and who nevertheless proceeds without regard for her own safety is guilty of contributory negligence as a matter of law. Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982). {) IJA.';'O 26. If you find under aU the circumstances of this case that Plaintiff was guilty of contributory negligence. but that such negligence was not greater than any causal negligence you might find against Defendants. then you must diminish any damages which you find were sustained by her in proportion to the amount of negligence THOMAS, THOMAS & HAFER, LLP C-~;'a C.KentPrice.EsquiIe 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. oems ATTORNEYS FOR DEFENDANT GEISTWHITE lANOSCAPtNG. INC. 1t..' ,'~ ! \ l \ \. -\ ) I' 'V~~ v. ~l~1 ~'I ~ ~ :s~ s~ rp~~ ~ ~ frv>- 'Bcv~ ct{ 'D~ ~L~.,~. #\)0, q~-5ZZ:5-~ A, 0,...... ~ ~ OV""- ~ It"""'- ~ ~ WVL. ~S ~ ~ <r'^-. ~ ~ ~ ~1r'- '\;G.- ~ -t".. -tJ2- ~ l~~~ ~ ~~-ez-~~~ ~ ~F~~t~ ~ tL.~ -t... ,~ ~ ~ CY\.V~'~ ~ ~ ~ ~~ k...... ~ ~ r-~ ~. "',.-4~~ ~T~ (Z~)~ .!'~8~. - 13. CrNL ~ ,..... ~ ...{ -tt::-... ~.~ ..~. J:.. ~ C'\,.-il. Cl.- ~4.- ~ "-'<lot ~ ;''VY~ t.-~~~ . -....-4_~ ,.~ -J ~~" (z..,t ') " 3&"3 .1 './ ~,*. (..) - ", C-. k ~ ~ / h---t::1Z. L:::::. F~ ~.. . ~ 6 L d.; ~. ~ ~~ -b- ~ . ~-uz.-~~ ~~~~~ ~. cri; T~ (ze{) I S::'ZBE.. ~ 9 383, ~JV) \ ". L'~ -V~A L~n. ~~ ~~ ~ ~ ~ ~ 1.-. rv-n.-. ~ ~ ~~ ~ ~a ~ ~ ~~ ~~ ~~t,.~~~ -t2- ~ '. J -tf'... ~ ~~ ~ ~.. 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DefD.nAilnt'..U..8.\IRPl.omenlal proposed Point....J.9.r .Chl\rlJc NQ. 3 Under l'erHmylvdnia law, a Llndowner is not leg.,lly rO>1pnnniblo for injuries Cilusect by t:ondit.i<'n:.; '''" tI.<, pt"op..rl.y that the landowner c"n rC'''''0Il'1hly ""1'''''1. I.IH! i 11<1. v ..1"..1 W I II realizCl. rQco<;Jnize, "nd t"kp. n"1,wnoihl" !ll...p" to 1" ot.~ct themSelVf!!lltf"'~' R~:n.jlt.eJlWnL.(:';~Ql.I.I1Lof 'r<1rt.c;, section 30; D.l.ucKmun v, Federal Realty Invostment. Trus~, 444 Pa. super, 411, 664 A.2d 139 (1995) . T1J,.... (r~ . ':(:~ (C:::: ::HI1 '.... . Oll.f.QJlc;1iU1.l' s Suppl_entill.,uoposed Po.int. for._Ch;uY<LH.Q~ 1\ lundowner in requ i red to u~'e rl'd!llln:tb 1 c, C,1re in the maint.mance and usn of illl propel't}' "nd t.o I'rutoct people lrom Coreseuable hurro. A 1,"tdowlIor is also requirnd t.o il,,~p(lct tho premises and to discover d,mql1ruun conditions. 1l0wl,v<'r, " landowner is liabloe tor harm c,w!llld tu pGOple by a <.onditinn nn the land only if: (a) the condition involvl.!li: all UIIl(l.\!':on.1blll ris~. of harm; 'f: (bl ~ knows or by the excrcioc of rw",unM..de care would discover the conditlon; (el should expect thilt indivHlu...ln on nis propl.!rty wi I: IIOt. discover or realize l.hn ddll4Ht in the condition or wlll ran to protect thellnnlv(!5 dqainst it; and (d) failn to exercise r.-".1 l; 011.'1 1> I..: C.lre to prot'l!'ct N p ... aqainst t.h~ danger. ~ S.S.C.J.l. 7.0008. JU.... cn O't::: (r.~;: -:=:t:-H ,. I).e!endnnt' .:l&lIP5!lllmf#ntl\l .P.x!~p..9.ged 1'0 int 1:9r <;hiUYI: No. 6 Before you may f i rHI Fut'(,(,t M'Jildow l!.\bl<\' fot" rluint,lff'J; iniuries you must [u.d 1.1I..1t. tt, hllej .1Ct.U,''! or const1-~t~;.::)(j..Cv()~ ~~,t.~nc'l tr~ ~JI~i'~'Jt). IJords,/.)[Urcst Mendow Conrlom II i 11m ^"':U..:i.lt j on €oi ther knew of the "Xiut<1l1Ce of thll' dirt. pllllp' bolon', Mr;, Connolly tll'll or throllgh the exerei:>l' oC r"'.""1) ""I> I,., ,~.'rl'! shall I d hew!:' di:o<'ovl'r,,'d their presence before Ms:. Connolly r..ll. Cf you find that Plaintiff has fai led tll C!ntabl ish th..t l or<.,,;l "'.,.~dow ~:n"w or should have known of the cxi';l.<'I\CI' or t.tH' <l i rt pi U'):>, thl'n }'VUl verd i cl must be in favor of For",,;! fo:""d..w. HQyl~~ Gre~t Atlantic_~d r~~~!!~ ~~~~, 731 Pa. Su~r. 52'>, 535, 422 A.2d 59). 5')!! (1')&0). Oate: kUU' r. l<ROl.L VA AUmn..,,. r .0. Ita. ..714.3 Rt"'W01..U:; . ItAVA,. ^ t'rote$slon..ll ('1't'por,tt.III" 101 tH.e Stf~(.t F~~t Ottt~. nc~ ~1.l Karrl1'bllrQ. 1'''''''1)'10',*'11'' \7101'.-0931 t-17~ :).\_)~~,~i~ At t '~ltH') tnt r":(.t~-hi-'H'\t roars1' ICUO\)W CQti~.".UM UIU:\c t "1' 1 0lIl ,;J-.. . . ..... ~t cO~il! jllil ~ tt=j j~1 ~ DOROTHY M, CONNOLLY, PLAINTIFF V. GEISTWHITE LANDSCAPING, INC" : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANT : 96-5225 CIVIL TERM IN BE: MOTION OF DEff;tiDANT FOR POST.TflIAL REUEF QflNION AND ORDER Of COURT BAYLEY, October 19, 1998:- Plaintiff, Dorothy M, Connolly, instituted this suit against defendant, Geistwhite Landscaping, Inc., seeking damages for personal injuries caused by a fall on October 18. 1994. A jury returned a vetdict in favor of plaintiff in the amount of $200,000, and found plalntilf 30% comparatively negligent. The vetdict was molded to $140,000. Defendant filed a motion for posl-triaJ relief which is ready for disposition, The evidence in a light most favorable to plaintiff, the verdict wimer. is as follows. Plaintiff, a retired teacher, had rlV8d alone since 1987, in a unit of the Forest Meedow CondomInIums in the Borough of Carlisle. In October, 1994, she was 73. She wore a prosthesis on her right leg which was partially amputated when she was a chiIc:I. She did not use any type of d8Vlce to assist he! in WlIIIdng, o.tendant. Geistwhlte Landscaping, Inc., had a \awn maintenance c:ontrIlc:t with the Rntt Meldow Condomlnluma. On October 18,1994, Donald Geistwhite. Jr.. the owner of dtIenlWil acting in its ~ as an indeptndent ......fblC.toi. perfonnecl cc:n ..dorI on the IawnI throughout Fcntt ",..!Sow Condomink.mI. Oltltwhite UItd . trIdof that puled an __. The Ml4dOt remo'. emaI ~ of grOU'ld and dls1rIl:Med Ihem 0* the llIwna, DImg the ~. Jl'al . ... picked up by her friend, 96-5225 CIVIL TERM Ruth Corbin, to go to a seminar. Corbin walked on a sidewalk leading from the street to plaintiff's front door, The weather was clear, Plaintiff came out and saw some dirt plugs on her sidewalk. She had not seen them earlier. Plaintiff and Corbin held each other and walked around the plugs to Corbin's car. They then went to the seminar. As Donald Geistwhite was aerating the lawns it started to rain, He stopped working and removed his equipment. He used a hand blower to blow off plugs of dirt that had been deposited onto the sidewalks of the condominium units, However, he failed to blow off plugs of dirt that had scattered onto the sidewalk of plaintiff, I Plaintiff and Corbin returned from their seminar after about two hours, It was misting. Plaintiff got out of the car and Corbin drove away. Plaintiff saw many dirt plugs scattered on her front walk. She was surprised that dirt plugs were stin there. The landscaper was not present. Plaintiff had her car in her garage at the rear of her condominium. The garage had an automatic door that could only be operated with an opener that was inside her car, There was a door inside the garage leading to her home that could be accessed only if plaintiff was inside the garage. The only other entrance to her home was her front door, Plaintiff mentally noted that she h8d to watch where &he stepped. She knew she might fall if she stepped on a dirt plug. PlaIntiff was Iooklng down as she walked seven to ten feet onto the sidewllk. She was waIklng betr.een the pIuga toward her front door. She felt that she could atep over the pIuga without stepping on W'I of them. However, plaintiff hu "big feet. . .-1d " <llistwtllte ,....d that he ct...., II of the sidt'lI'lltS. -2- " .~ 96-5225 CIVIL TERM as she stepped around the plugs the back of her right shoe hit one of the plugs and she fell, suffering severe, permanent InJuries, In its post-trial motion, defendant maintains that the court erred in refusing to grant its motion for a directed verdict, and that it is now entitled to a Judgment N.O.V. Because defendant controlled the manner in which it performed its contract with the Forest Meadow Condominium while it was working as an independent contractor, it was as a temporary possessor of the land subject to the standards imposed on a possessor of land, Brtetlch v. United State. Steel CorporatIon, 445 Pa 525 (1971), The standards are set forth in the Restatement Torts (Second) fi 343, which provides:2 Dangerou. Condition Known to or Discoverable by Possessor A possessor of land is SUbJect to liability for physical harm caused to his InvIt... by a condition on the land If, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or reeHze the danger, or will fall to protect themutvea agalnat It, and (c) fails to exercise reasonable care to protect them against the danger. (Emphasis added,) SectIon 343A of the Restatement provides: Known or Obvfoua Dangers (1) A poss.-Ior of land is not liable to his lrMtees for phyalceI harm C8l1S.t to them by etrt actMty Of condition on the land whole danger is known Of obvloua to them, unIeaa the pa....1ef should anticipate 2. .U".'lM Y. ftdefll Realty ItMItIMnt Truat.ll64 A.2d 130 (Pa. Super. ,_). -3- 96-5225 CIVIL TERM the harm despite such knowledge or obviousness. (Emphasis added.) Defendant argues in its brief: (Djefendant Geistwhite submits that it owed no duty to the Plaintiff either to give her warning of the condition or to remedy the condition because there was no reason on the Defendant's part to expect that the Plaintiff would not discover or realize the danger, nor was there reason to expect that the Plaintiff would fall to protect herself against the danger, In fact, the Plaintiff testified that she discovered and realized the danger and, in addition, she consciously took action to protect herself against the danger. Consequently, the Plaintiff's evidence failed to prove the second prong of the test to establish a duty under Section 323 of the Restatement of Torts,~. In addition, this same evidence supports the application of the exception to Section 343 liability created by Section 343A of the Restatement of Torts,~, For these reasons, the Court erred in denying Defendant Geistwhite's motion for directed verdict and justifies the grant of judgment N,Q,V. in favor of Defendant Geistwhite. Moreover, for the reasons discussed above, the Plaintiff knowingly and consciously assumed the risk of the harm sustained as a matter of law such that the Court erred by refusing to grant a directed verdict and Defendant Geistwhite is entitled to judgment N.Q.V. on that basis as weIt.3 Defendant's argument is misplaced because in defining its duty it refers to only a part of SectIon 343 of the Restatement. Plaintiff did acknowledge that she saw the dirt plugs on the sidewalk. and that she knew she could fall if she stepped on them. Obviously, her conduct was negligent. However, as to defendant's conduct, it was for the jury to detetmlne if It thouId have expected thai J1leintiff would fail to protect herself ag8Inst the danger it aeated on the land. After defini1lQ negligence, on:tInary care. and ~ ....'$tllion, we charged the jury IM'ld<< S<<;tions 343 and 34:sA of the 3. OIhet..\leI tWHd In the post-trial nlOtiOt'l but not britt.d we 8bIndoned, CumbeItand COl.r.Iy Aute of Court 21()'7. -4. 96-5225 CIVIL TERM Restatement: Geistwhite Landscaping, Inc., is required to use reasonable care in the maintenance of the property of the Forest Meadow Condominium Association where it was working as an independent contractor and to protect the people who use that property from foreseeable harm, Geistwhite is required to inspect the premises upon which it works and to discover any dangerous conditions it created and use care not to injure a person using the property by negligent activity, Whether there was a dangerous condition on the premises caused by defendant, as plaintiff claims, involves the condition of the entire walk that plaintiff maintains she was traversing and fell as she was going from a car to her front door. You must determine what the condition of that walk was and did Geistwhite cause that condition. Geistwhite would be liable for any harm caused to plaintiff who used the property Geistwhite was maintaining if it, one, knew or by the exercise of reasonable care would have discovered the condition and should have realized that It Involved an unreasonable risk of harm; and, two, should have expected that plaintiff would either not have discovered or realized the danger or would have failed to protect herseU against It; and, three, failed to exercise reasonable care to protect plaintiff against the danger. Gelatwhlte would not be liable to persons using the property for physical harm caused by It by any actlvlty or condmon on the land whose danger Is known or obvlous to that person unle.. Gelatwhlte should anticipate the harm despite such knowledge or obvlousne..; or stated another way, Gelltwhlte would be nable to a person ullng the land for any harm It should have anticipated, regardle.. of whether the danger II known or obvlous. The word known denotes not only knowledge of the existence of the condition itself but also appreciation of the danger it involves. The word obvious means that both the condition and the risk were apparent to and would be recognized by a reasonable person using the land exercising ordinary perception, intelligence. and judgment. (Emphasis added,)" There was sufficient evidence for the jury to conclude that defendant should have anticipated harm to pIU1titf from the dangerous condition it CtHted on the land 4, See Pa. SSJI (ClV) S 7.008 on Restatement (Second) Tor1S K 343. 343A. .5- 96-5225 CIVIL TERM despite the obvious nature of the danger and plaintiffs knowledge of that danger, Plaintiff was elderly and had no other way to enter her home other than through her front door. Defendant had left the area, Plaintiffs conduct did not negate the duty defendant owed to her for a dangerous condition that it should have expected that plaintiff would fall to protect herself against. The doctrine of assumption of risk, which has been severely limited in Pennsylvania, Is not applicable to this type of a situation. Sections 343 and 343A of the Restatement creates a duty on a possessor of land for liability for physical harm caused by a condition of the land if the possessor should have expected that the person would fall to protect herself against such harm despite knowledge and obviousness, Therefore, the case was property submitted to the jury under the doctrines of negligence and comparative negligence. Hardy v. Southland CorporatIon, 645 A.2d 839 (Pa Super, 1994). Defendant was neither entiUed to a directed verdict nor is he now etltitled to a judgment N,O.V. ~ AND NOW, this ~ day of October. 1998, the motion of defendant, Geistwhite Landscaping, Inc., for post-trial relief. IS DENIED. By the Court. I ~-dd~ EdgIr B. , J, , ..