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HomeMy WebLinkAbout98-0411 CivilJAMES D. REIBER, IV, and LYNDA L. REIBER, Plaintiffs Vo WILLIAM H. HOOKE, and KURT E. SUTER, Individually and t/d/b/a HOOKE AND SUTER, a Pennsylvania General Partnership, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 98-411 CIVIL TERM IN RE: DEFENDANTS' MOTIONS FOR POST-TRIAL RELIEF BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this 14th day of March, 2001, upon consideration of Defendants' Motions for Post-Trial Relief, and for the reasons stated in the accompanying opinion, Defendant's motions are denied. BY THE COURT, J/~Vesley Ol~r, J(.~JJ. ~ L- Andrew J. Ostrowski, Esq. Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiffs Kevin C. McNamara, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants JAMES D. REIBER, IV, and LYNDA L. REIBER, Plaintiffs WILLIAM H. HOOKE, and KURT E. SUTER, Individually and t/dPo/a HOOKE AND SUTER, a Pennsylvania General Partnership, Defendants IN RE: DEFENDANTS' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 98-411 CIVIL TERM MOTIONS FOR POST-TRIAL RELIEF BEFORE BAYLEY and OLER JJ. OPINION and ORDER OF COURT OLER, J., March 14, 2001. This case arises from injuries sustained by Plaintiff James D. Reiber, IV, when he slipped and fell on ice on Defendants' business premises on .January 24, 1996. After a jury trial held on July 10, 11, and 12, 2000, the jury returned a verdict finding Defendants negligent and the injured Plaintiff contributorily negligent, and awarding damages in the (molded) amount of $325,000.00 to the injured Plaintiff. On July 21, 2000, Plaintiffs filed a petition for delay damages, to which Defendants filed a response on July 28, 2000. After a proceeding held on September 25, 2000, the court entered an order fixing delay damages at $32,508.13, subject to an ultimate resolution of any other post-trial issues in the case. Defendants filed Motions for Post-Trial Relief on July 21, 2000, seeking (1) judgment notwithstanding the verdict, or (2) a new trial on the issues of liability and damages, or, in the alternative, (3) a grant of remittitur. After a careful review of the record, the briefs submitted on behalf of Plaintiffs and Defendants, and the applicable law, the court will deny Defendants' motions. STATEMENT OF FACTS The evidence at trial tended to show that, as of the time of trial, James D. Reiber, IV, Plaintiff, was a forty-seven year old man living in Carlisle, Cumberland County, Pennsylvania. t Mr. Reiber testified that he was employed at Roadway Express as a dock worker? Mr. Reiber testified that, at work, he was responsible for loading freight onto trailers,3 and that each day he would load between five and eight hundred boxes, each weighing approximately twenty to fifty pounds.4 Mr. Reiber testified that this was essentially the same job that he was doing in January 1996, when he fell.5 The evidence further tended to show that the townhouse in Carlisle that Mr. Reiber rented at the time of his fall was located behind a strip mall known as Penrose Plaza.6 The complex in which Mr. Reiber's townhouse was located consisted of ten buildings, each containing two dwelling units.7 All ten buildings were located on the same side of the street, were of similar construction, and had back doors leading into back yards, from which the rear of the Penrose Plaza shopping mall could be accessed.8 The back yards were grassy areas approximately twenty feet wide and bordered part of the parking lot of Penrose Plaza.9 Dumpsters sat in the parking lot near the grass,to A mall sidewalk ran immediately in front of shops at the Penrose Plaza. Il At one end of this sidewalk, in the I N.T. 17-18, Trial, July 10, 11, and 12, 2000 (hereinafter N.T. __). 2N.T. 18. 3 N.T. 18-19. 4N.T. 18-19. 5 N.T. 21-22. 6 N.T. 23-28, 113-20; Plaintiff's Exhibits 1-A and 1-B. Defendants owned both the Penrose Plaza shopping center and the rental complex in which Plaintiff's townhouse was located. See N.T. 113-14. 7N.T. 115. 8 N.T. 115-16. 9 See Plaintiff's Exhibits 1-A and 1-B. lo See Plaintiff's Exhibit l-A; N.T. 25-27. I ! N.T. 120; Plaintiff's Exhibits 1-C and 1-D. vicinity of the last store of the strip, were three steps that led down to the parking lot.12 Defendant Kurt E. Suter testified that, while he did not intend for the steps to be used by the residents of the townhouses, he was aware of their use and did not take any action to prevent the use, such as the posting of signs, erection of a fence, or issuance of advisories to residents as to any restricted access.13 Andi Meloy, the property manager for Defendants, testified that she never intended to put signs up or prohibit residents from accessing the Penrose Plaza from its rear.14 Mr. Reiber testified that on Wednesday, January 24, 1996, around 2:30 in the afternoon, he left to go to Tritt's, a convenience store located in the Penrose Plaza strip mall, to buy a pack of cigarettes.Is He left his townhouse, traversed his back yard, walked between two dumpsters sitting on the edge of the parking lot, passed a drain in the parking lot, proceeded across the parking lot, walked up the three steps at the end of the mall sidewalk, and continued to Tritt's.16 Mr. Reiber testified that snow covered much of the ground on that day, in some areas in piles up to ten or twelve feet high.17 He stated, however, that the Penrose Plaza parking lot had been cleared of snow and appeared merely Wet to him.Is Mr. Reiber testified that, on the way back from Tritt's a few minutes later, he took a hard fall on the parking lot near the steps,l° According to his testimony, Mr. Reiber had walked back from Tritt's on the sidewalk in front of the stores, went down the steps at the end of the sidewalk, and took about two or three steps on the 12 N.T. 120-21. 13 N.T. 117-121. 14 N.T. 182-86. 15 N.T. 24. 16 N.T. 24-25. Mr. Reiber testified that he had always taken the same path, up to five or six times a week. He had also seen other people taking the same general path. See N.T. 24-31. Mr. Reiber also testified that there was a longer way to get to Tritt's, which entailed traveling on a sidewalk in front of the townhouses and around to the front of the shopping center. See N.T. 64-65. 17 N.T. 25-26. 18 N.T. 32-34. 19 N.T. 27-30. Mr. Reiber had never fallen there before, according to his testimony. See N.T. 35. pavement before falling.TM Mr. Reiber testified that, after falling, he looked around the area in which he fell, realized that he had fallen on black ice, and noticed some ice around the aforesaid drain, which was a few feet away.21 Mr. Reiber testified that he pulled himself to his feet, his leg throbbing, and hopped the rest of the way home? Mr. Reiber testified that, once he made it home, he took his boot off and noticed that his foot was already swollen and getting black and blue? According to his testimony, Mr. Reiber called a friend, who was to have picked him up for work, to let him know that he would not be going to work that day.24 Mr. Reiber testified that he then called a doctor, and that, once his son and wife came home, they drove him to a medical center to see a physician by the name of Branscum.25 According to Mr. Reiber's testimony, the doctor took x-rays of his ankle, which revealed a spiral break,26 and put a cast on.27 Mr. Reiber testified that he was told that the cast would be on for eight to ten weeks, followed by some physical therapy? During the weeks that Mr. Reiber had the cast on, according to his testimony, he had to crawl around the house and had to sleep on the couch the first week because he could not make it upstairs to his bed every night.29 He testified that he also had difficulty showering and that his wife had to wait on him for meals.3° Mr. Reiber testified that his leg continued to hurt, and that about a month and a half after the cast had been on he 20 N.T. 27-28; See Plaintiff's Exhibit I-A. 21 N.T. 32-34. 22 N.T. 35-36. 23 N.T. 36. 24 N.T. 36-37. 25 N.T. 36-37. 26 N.T. 38. 27 N.T. 38. 28 N.T. 38. 29 N.T. 38-39. 30 N.T. 38-40. 4 noticed that his leg was swollen and the pain was more severe? Mr. Reiber testified that he went to the doctor, who had to cut the cast off and put another one on.32 Mr. Reiber's testimony revealed that the new cast remained on for another five or six weeks, which was a longer period than had originally been expected.33 Mr. Reiber testified that, after the cast was taken off, he went through several weeks of physical therapy? According to Mr. Reiber's testimony, in the fourth week of physical therapy, after complaining of pain, the doctor sent him to Carlisle Hospital for an ultrasound inspection of his leg.35 Mr. Reiber testified that the ultrasound revealed several clots in his leg, which caused him to be hospitalized for ten days.36 Mr. Reiber testified that he went back to physical therapy after being released from the hospital? Mr. Reiber testified that even at the time of trial, four years after his fall, his leg still hurt, and he could not do all the things that he had been able to do.38 Plaintiff Lynda Reiber, wife of the injured Plaintiff, testified as to her awareness that her husband's leg continued to hurt him.39 Justin Reiber, Plaintiffs' son, testified that he had traveled a path to Tritt's similar to that his father took, and had fallen in the same general area.4° According to Justin Reiber's testimony, his fall, which was also on black ice, occurred about a week before 31 N.T. 40-41. 32 N.T. 41. 33 N.T. 41. Mr. Reiber returned to work about six months after his fall. See N.T. 73-76. 34 N.T. 42-43. 35 N.T. 43. 36 N.T. 43-46. 37 N.T. 47. 38 N.T. 51-53. 39 N.T. 106. 40 N.T. 85. Defendants filed a motion in limine on March 8, 2000 seeking to preclude testimony regarding the fall Justin Reiber took approximately one week before his father fell. The motion was denied by order of this court, dated July 10, 2000. 5 his father fell.41 Justin Reiber testified that he had hit his head when he fell, and had told a delivery driver from Pizza Hut, which was located in the Penrose Plaza, about the ice on the steps? Justin Reiber testified that he did not know the name of the Pizza Hut employee he told about the ice, and that he did not tell anyone at Hooke and Suter about his fall.43 Justin Reiber stated that, notwithstanding the information he conveyed to the delivery person, he never saw anyone put salt or anything else on the ground in that area.44 A neighbor of the Plaintiffs, Kenneth G. Evans, testified that when he walked to the stores in the Penrose Plaza he also took a path by the dumpsters and up the three steps at the end of the sidewalk, similar to the path Justin and James Reiber took.45 When Kenneth Evans was called as a witness by Plaintiffs, the following discussion was held at sidebar: MR. McNAMARA [defense counsel]: This is one of the witnesses we spoke about before the trial started. During his deposition, Mr. Evans testified to having fallen twice in the vicinity of this, and it had to do with his dog pulling him down. And I don't think that has relevancy to any issue. He also said during his deposition that he did not tell anybody at Hooke and Suter about that incident. It's not relevant to notice, and I don't think it's relevant to any issue in the case. THE COURT: Mr. Ostrowski. MR. OSTROWSKI: I think it would be relevant to notice because it goes to the issue of the existence or amount of time that the condition existed or is known to exist. I think prior falls are, you know, prior falls in particular are relevant and should go to the jury. Let the jury determine what the relevance is. THE COURT: When did his fall happen? MR. OSTROWSKI: In January 1996, around the time of this incident. THE COURT: Before the accident? 41 N.T. 86. 42 N.T. 87. Defendants' motion in limine, filed March 8, 2000, sought to preclude any references to notice to Pizza Hut. By order of this court, dated July 10, 2000, the motion was denied. 43 N.T. 87-91. 44 N.T. 87-88. 45 N.T. 133-34. Defendants filed a second motion in limine on March 9, 2000, seeking to preclude the testimony of Kenneth Evans because he was not listed on Plaintiffs' witness list earlier. This court, by order dated June 21, 2000, deemed Defendants' motion moot because the case was continued following disclosure of the witness. 6 MR. OSTROWSKI: Before the incident. MR. McNAMARA: Bear in mind, we're talking aboht a bad weather month, constantly changing weather conditions, and it was not a point in his deposition to establish substantial similarities of the conditions. I don't think the testimony is relevant. THE COURT: Of course, I wasn't there at the deposition, so I don't know. I think your objection goes more to weight than to the admissibility of the testimony, so it will be overruled.46 During Kenneth Evans's actual testimony, no additional objections were made regarding the admissibility of Mr. Evans's testimony about his two falls.47 Mr. Evans testified that he fell twice in the area where Mr. Reiber fell, once in 1996 and once in 1997. He did not, however, tell anyone at Hooke and Suter about the falls.48 According to Mr. Evans's testimony, his fall in 1996 was about a week before James Reiber's fall.49 Mr. Evans testified that the area where he fell was covered with a shiny black ice, and that the parking lot looked ~vet.5° He stated that he had seen ice build-up in that area on several occasions but had never seen anyone spread salt or sand, or inspect for ice.51 Kenneth Evans also testified that he remembered seeing snow blowers on the roof, and persons shoveling snow off the side of the building.52 At trial, Carl Souders testified that he and David Wert were maintenance employees employed by Hooke and Suter.53 According to Carl Souders's testimony, he and David Wert were responsible for the snow removal from the sidewalks around the townhouses and the sidewalks in front of the shops of the Penrose Plaza? The testimony 46 N.T. 126-27. 47 N.T. 127-54. 48 N.T. 154. 49 N.T. 137. 5O N.T. 137-38. 51 N.T. 138. 52 N.T, 140-4l. Kenneth Evans could not remember whether the snowblowers were on the roof in January, 1996 or another year, but Plaintiffs' counsel stated that he would present additional testimony to connect the snowblowers to January, 1996. This court allowed the testimony, conditioned upon the subsequent presentation of such connecting testimony; the connecting testimony ~vas elicited through Carl Souders. See N.T. 140-41, 172-73. Defendants filed a motion in limine on March 8, 2000, seeking to preclude evidence of snow blowing from the building rooftops, stating that such evidence was "speculative." The court denied Defendants' motion. See Order of Court, dated July 10, 2000. 53 N.T. 162. 54 N.T. 163-64. of Defendant Kurt E. Suter and Carl Souders revealed that, in addition to the two maintenance employees, Hooke and Suter contracted with a company known as John Walters to plow snow from the parking lots? Defendant Kurt E. Suter and Carl Souders testified that Carl Souders and David Wert were responsible for salting icy premises, including the three steps in the vicinity of Plaintiff's fall, but were not responsible for plowing the parking lot? According to the testimony of Defendant Kurt E. Suter and Carl Souders, no one was responsible for actually checking for ice and no written guidelines or policies were in place at the time of Plaintiff's fall to insure that the area where Plaintiff fell would be checked for ice and salted if necessary? Defendant Kurt E. Suter testified that as of the time of trial he had never seen anyone spread salt at the bottom of the steps where pedestrians often walked, and where Plaintiff fell.ss In addition to the testimony discussed above, Carl Souders testified that the John Walters company went out to the Penrose Plaza on January 25, 1996 to remove snow blowers from the roof? John James Fritz, Jr., a certified public accountant, was called as an expert to support Plaintiffs' claims of economic loss.6° Mr. Fritz testified that Mr. Reiber's loss of earnings during the year of injury approximated $11,252.00.6~ He calculated Mr. Reiber's future loss of earnings and earning capacity at $647,638.00.62 Mr. Fritz also discussed a report by John D. Sheridan, Esq., a certified public accountant, which 55 121, 172-73. 121-23, 163-65. 121-23, 162-68. 121-22. 172-73. 232; Plaintiffs' Exhibit 11. 238; Plaintiffs' Exhibit 11. The period of loss was from January to July, 1996. 238; Plaintiffs' Exhibit 11. calculated Mr. Reiber's economic damages at $590,622.00, exclusive of medical expenses? After deliberations, the jury rendered a verdict on July 12, 2000.64 The jury found: (1) that the Defendants were negligent,65 (2) that the Defendants' negligence was a substantial factor in bringing about the harm to Plaintiff James D. Reiber, IV,66 (3) that Plaintiff James D. Reiber, IV, was contributorily negligent,67 (4) that the contributory negligence of Plaintiff James D. Reiber, IV, was a substantial factor in bringing about his harm,68 (5) that the percentage of causal negligence attributable to the Defendants was sixty-five percent, and that thirty-five percent was attributable to the Plaintiff,69 (6) that the total amount of damages suffered by Plaintiff James D. Reiber, IV, was five hundred thousand dollars,7° and (7) that the total amount of damages suffered by Plaintiff Lynda Reiber for loss of consortium was zero.TM On July 17, 2000, upon consideration of the jury's verdict and the percentages of negligence attributed to the parties, the court molded the verdict to award Plaintiff James D. Reiber, IV, the sum of $325,000.00.TM Delay damages were added as indicated above.73 Defendants filed Motions for Post-Trial Relief on July 21, 2000.TM Defendants' Motions for Post-Trial Relief reads as follows: 63 N.T. 248, 252; Defendants' 'Exhibit 7. 64 N.T. 434. 65 N.T. 434. 66 N.T. 434. 67 N.T. 435. 68 N.T. 435. 69 N.T. 436. 7O N.T. 436-37. 71 N.T. 437. 72 Order of Court, July 17, 2000. 73 See text proceeding note 1 supra. 74 Defendants' Motions for Post-Trial Reliefi 9 AND NOW, come Defendants, William H. Hooke, Jr. and Kurt E. Suter, by and through their attorneys, Thomas, Thomas & Hafer, LLP, and bring the following Motions for Post-Trial Reliefi MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT 1. The jury returned a verdict in this slip and fall case on July 12, 2000, finding the Defendants negligent and awarding a net verdict of $325,000. 2. At the close of all of the evidence, defense counsel moved for a directed verdict on the basis that the Plaintiffs had not proven that the Defendants had notice of the allegedly dangerous condition, a required element of the Plaintiffs' cause of action. 3. The Plaintiffs did not, in fact, prove through admissible evidence that the Defendants had a hand in causing the allegedly dangerous condition which caused Mr. Reiber's injury or that the Defendants had actual or constructive notice of it. 4. Because the Plaintiffs failed to prove that the Defendants either caused the condition or had actual or constructive notice of it, they have failed to sustain their burden of proof and judgment notwithstanding the verdict should be entered in the Defendants' favor. MOTION FOR NEW TRIAL 5. During the Plaintiffs' case in chief, they offered the testimony of their son, Justin Reiber, and their neighbor, Kenneth Evans, who each testified to having slipped and fallen in the vicinity of where Mr. Reiber fell. Additionally, Mr. Evans testified to having fallen one time after Mr. Reiber did. 6. Defense counsel objected to the admission of testimony about' prior slips and falls by filing a Motion in Limine as to Justin Reiber's alleged fall and by objecting to Mr. Evans' testimony before he took the stand. 7. The evidence showed that neither Justin Reiber nor Ken Evans gave notice of his fall to Hooke & Suter. 8. The evidence showed that Justin Reiber fell after a snow and' ice storm approximately one week before his father fell. The evidence showed that Ken Evans fell in approximately the same time frame. 9. The evidence further showed that Justin Reiber fell at night time and not during the day as his father did. 10. The slips and falls of Justin Reiber and Ken Evans were probative of no issue in the case and were, in fact, highly prejudicial to the Defendants. 10 11. The jury should not have permitted to hear testimony from either Justin Reiber or Ken Evans about pre- or post-incident falls and the introduction of this evidence was prejudicial and warrants the award of a anew trial as to both liability and damages. 12. Prior to trial, the Defendants filed a Motion in Limine seeking to preclude the Plaintiffs from introducing evidence about a Snowblower on the roof of the Penrose Plaza which was removed from the roof the day after James D. Reiber, IV fell, on the theory that there was no direct or circumstantial evidence that that snowblower caused or contributed to the slippery conditions alleged by the Reibers. 13. Although Plaintiffs' counsel argued to the jury that the snowblower on the roof of the Plaza caused or contributed to the slippery condition, the Plaintiffs never produced any direct or circumstantial evidence that this was the case. The best that the Plaintiffs were able to do was produce maintenance records from Hooke & Suter that a snowblower was removed from the plaza roof. 14. The Plaintiffs did not prove that the snowblower caused or contributed to the condition over which Mr. Reiber allegedly fell and admission of this evidence was highly prejudicial to the Defendants and justifies the award of a new trial, both on liability and damages. 15. During the evidentiary phase of this trial, the Plaintiffs failed to prove that the Defendants either caused the existing condition n the parking lot or that the Defendants had knowledge or notice of it. 16. The Plaintiffs' failure to prove that the Defendants either had a hand in the creation of the condition or that they had knowledge or notice of it warrants the award of a new trial on both liability and damages. 17. The verdict of the jury was excessive, contrary to the evidence and against the weight of the evidence. 18. Remittitur should be granted as to the excessive verdict or, in the alternative, a new trial should be granted. 19. Defendants reserve the right to identify additional grounds in support of these Motions upon receipt of the trial transcript. 20. Defendants request that an entire transcript of the trial be prepared to include Plaintiffs' counsel's closing argument to the jury. WHEREFORE, Defendants respectfully request the following post-trial reliefi a. that judgment not withstanding the verdict be entered in the Defendants' favor; 11 b. that in the alternative, the Court order a new trial on the issues of both liability and damages; or c. in the alternative, the Court grant remittitur.7s DISCUSSION Statement of Law Duty of Care. A possessor of land is subject to liability for physical harm caused to an invitee by a condition on his land if (1) he knows of or reasonably should have known of the condition, and should realize that the condition involves an unreasonable risk of harm to such invitees, (2) he should expect that the invitee will not realize the danger or will fail to protect himself from it, and (3) he fails to exercise reasonable care to protect invitees against the danger. Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 335, 690 A.2d 719, 722, appeal denied, 549 Pa. 716, 701 A.2d 577 (1997); Restatement (Second) of Torts {}343 (1965). A business visitor, or invitee, is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings involving the possessor of the land. Estate of Swift, 456 Pa. Super. at 335, 690 A.2d at 722. An injured invitee must prove that the proprietor of the land had a hand in creating the harmful condition, or that he had actual or constructive knowledge of such condition. Estate of Swift, 456 Pa. Super. at 336, 690 A.2d at 722. If the harmful condition is traceable to the possessor or his agent's acts, liability of the possessor is not dependent upon proof of notice. Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525,530, 422 A.2d 593,596 (1980). Admissibility of Evidence. Questions at trial concerning the admissibility of evidence are within the trial judge's sound discretion. Valentine v. Acme Markets, Inc., 455 Pa. Super. 256, 261,687 A.2d 1157, 1160 (1997). Generally, a trial judge should admit all relevant evidence unless a specific rule bars its admission. Pa.R.E. 402; Valentine, 455 Pa. Super. at 261,687 A.2d at 1160. Evidence is relevant if it tends to make a fact at issue more or less probable. Pa. R.E. 401; Valentine, 455 Pa. Super. at 75 Defendants' Motions for Post-Trial Relief. 12 261,687 A.2d at 1160. Evidence ofpi'ior accidents involving the same instrumentality is generally relevant to show that a defect or dangerous condition existed and/or that the defendant had or should have had knowledge of the defect. Valentine, 455 Pa. Super. at 266, 687 A.2d at 1163. This evidence is admissible only if the circumstances of the prior accident are similar to those in the incident involving the plaintiff. Id. at 266, 687 A.2d at 1162. The burden is on the party introducing the evidence to establish this similarity before the evidence will be admitted. Id. at 266, 687 A.2d at 1162-63. Judgment Notwithstanding the Verdict. In reviewing a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner and the verdict winner must be given the benefit of every reasonable inference. Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). A judgment n.o.v, should be entered only in a clear case, with any doubts resolved in favor of the verdict winner. Id. at 402, 604 A.2d at 1007. A judgment n.o.v, can be entered when the movant is entitled to judgment as a matter of law, or when the evidence ~vas such that no two reasonable minds could disagree that the outcome should have been in favor of the movant. Id. at 402, 604 A.2d at 1007. A judgment n.o.v, cannot be entered on a diminished record. Northwest Savings Ass'n v. Distler, 354 Pa. Super. 187, 192-93, 511 A.2d 824, 826 (1986). Remittitur. Remittitur, the procedural process by which an excessive jury verdict is reduced, may be granted only where the verdict so shocks the court's sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption. Refuse Management System, Inc. v. Consolidated Recycling and Transfer Systems, Inc., 448 Pa. Super. 402, 421,671 A.2d 1140, 1149 (1996). If money damages awarded by a jury are grossly excessive as matter of law, the court may order the plaintiff to remit a portion of the award. Id. at 421,671 A.2d at 1149. "A remittitur should fix the highest amount any jury could properly award." Gunnv. Grossman, 748 A.2d 1235, 1240 (Pa. Super.), appeal denied, 2000 Pa. LEXIS 2307 (2000). The court cannot simply grant a remittitur, but it can suggest one to the affected party, and, if refused, the court should 13 grant a new trial. Refuse Management System, Inc. v. Consolidated Recycling and Transfer Systems, Inc., 448 Pa. Super. 402, 421,671 A.2d 1140, 1149 (1996). New Trial. A. Weight of the Evidence. "When reviewing whether a verdict is against the weight of the evidence, a new trial will be granted only where the jury's verdict was so contrary to the evidence as to shock one's sense of justice." Insurance Co. of the State of Pennsylvania v. Miller, 426 Pa. Super. 519, 522-23, 627 A.2d 797, 798 (1993). The decision to grant a new trial lies within the sound discretion of the trial court. Martin v. Evans, 551 Pa. 496, 501, 711 A.2d 458, 461 (1998). The court must grant a new trial when the verdict was capricious or against the weight of the evidence and resulted in a miscarriage of justice. Thompson v. Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). The court may not, however, grant a new trial merely because it believes that the jury should have returned a different verdict. Id. at 598, 493 A.2d at 672; Martin 551 Pa. at 502, 711 A.2d at 461-62. B. Evidentiary Rulings. "The admission of improper evidence justifies a new trial when such evidence may have affected a verdict to the detriment of a party." Bucks County Water and Sewer Authority v. Approximately 9.180+ Sq. Ft. of Land Taken as Easement, 147 Pa. Commw. 612, 617, 608 A.2d 1109, 1112 (1992). A decision as to whether to grant a new trial in this context lies within the sound discretion of the trial court. Id. at 617, 608 A.2d at 1112. Application of Law to Facts Motion for Judgment Notwithstanding the Verdict. Evidence tending to show that Defendants had knowledge of the wintry weather conditions that existed at the time of Plaintiff'S fall and that the residents of the townhouses often traveled to the Penrose Plaza shops through the back parking lot and up the three steps at the end of the sidewalk, that no one was directly responsible for checking the area in the vicinity of Plaintiff's fall for ice, that no system was in place at the time of Plaintiff's fall for inspecting the premises for ice, and that Defendants blew snow off the roof of the Penrose Plaza around the time of Plaintiff's fall, tended to support the jury's verdict. The jury could have reasonably 14 found that Defendants had a hand in creating the harmful condition or had actual or constructive knowledge of such condition; therefore, Defendants' motion for judgment notwithstanding the verdict will be denied. Motion for a New Trial. A. Weight of the Evidence. Evidence tending to show that Defendants had knowledge of the wintry weather conditions that existed at the time of Plaintiff's fall and that the residents of the townhouses often traveled to the Penrose Plaza shops through the back parking lot and up the three steps at the end of the sidewalk, that no one was directly responsible for checking the area in the vicinity of Plaintiff's fall for ice, that no system was in place at the time of Plaintiff's fall for inspecting the premises for ice, and that Defendants blew snow off the roof of the Penrose Plaza around the time of Plaintiff' s fall, tended to support the jury's verdict. The jury's verdict was not so contrary t~o the evidence as to shock the court's sense of justice; therefore, Defendants' request for a new trial on these grounds will be denied. B. Trial Errors. As to whether Defendants timely objected to the admission of evidence regarding post-incident falls by Kenneth Evans, this court does not believe that Defendants objected to such testimony before or at the time of trial. Upon consideration of the Defendants' objection and the discussion held at sidebar, it was not clear at the time of the court's ruling that one of Mr. Evans's falls occurred after Plaintiff's fall. The court's ruling on Defendants' objection to Kenneth Evans's testimony was based on evidence regarding the prior fall by Kenneth Evans. It was not until Mr. Evans testified that it became clear to the court that one fall did occur after the fall of James D. Reiber, IV, due to his dog's pulling him down.76 In the court's viexv, therefore, no objection was clearly made to testimony of Mr. Evans as to a post-incident fall. Furthermore, Mr. Evans testimony did not focus on the post-incident fall and it was made clear to the jury that the post-incident fall was due to Mr. Evans's dog pulling him doxvn and not the icy conditions, which had contributed to his pre-incident fall. It is believed that the court's 76 N.T. 153. 15 ruling to admit Kenneth Evans's testimony was proper based upon the proffers that an issue as to the admissibility of testimony as to the post-incident fall was not preserved, and that any error in admitting testimony about a post-incident fall was harmless. As to the testimony of Justin Reiber and of Kenneth Evans regarding prior falls, such evidence was relevant to the issue of whether the Defendants had actual or constructive knowledge of a dangerous condition. Both Justin Reiber and Kenneth Evans fell in substantially the same area that James D. Reiber, IV, fell. Both of their falls were within a week or two before Plaintiff's fall. Although the Defendants were not directly informed of the earlier falls, assuming that the Pizza Hut delivery driver did not inform Hooke and Suter of the icy conditions Justin Reiber told him about, this evidence was probative to determination of whether Defendants should have been aware of the dangerous condition. As to the admission of evidence regarding snowblowers on the roof of Penrose Plaza, the testimony of Kenneth Evans that he saw Hooke and Suter employees shoveling snow off the side of the building, coupled with the testimony of Carl Souders that snowblowers were removed from the Penrose Plaza roof the day after Plaintiff fell, was relevant to the issue of whether the Defendants had a hand in creating the dangerous condition or had actual or constructive knowledge of the condition. In view of the court's discretion and duty ~vith respect to the admission of all relevant evidence, it is believed that the admission of testimony regarding prior falls, the admission of testimony by Justin Reiber that he informed a Defendants' tenant about his fall, and the admission of testimony regarding snowblowers on the roof of Penrose Plaza were proper on the issues of whether Defendants had actual or constructive knowledge of the dangerous condition or had a hand in creating such a condition. Defendants' motion for a new trial based upon trial errors relating to the admission of evidence will be denied. C. Size of Verdict. The jury's award, $500,000.00 reduced to $325,000.00 for the Plaintiff, was not, in the court's view, unreasonable considering the expert reports as to Mr. Reiber's future loss of earnings (up to $647,638.00) and the evidence presented as 16 to his continuing pain and suffering. Testimony tended to show that Mr. Reiber was hosPitalized for ten days due to blot clots that developed in his leg, that he had to have a second cast put on, that he went through several weeks of physical therapy, that at the time of trial his leg continued to hurt him, that it was painful for Mr. Reiber to work, and that he was no longer able to perform or enjoy many of the activities he did before his fall. The jury's verdict was below the amount of damages testified to at trial. Such an award is therefore not grossly excessive as to shock the conscious of the court and remittitur will therefore be denied. ORDER OF COURT AND NOW this 14th day of March, 2001, upon consideration of Defendants' Motions for Post-Trial Relief, and for the reasons stated in the accompanying opinion, the motions are denied. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Andrew J. Ostrowski, Esq. Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiffs Kevin C. McNamara, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants 17