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HomeMy WebLinkAbout89-2990 Civil (2)ROBERT L. BOWERS, Plaintiff V. ADAMS WHOLESALERS and MAMCO of Pennsylvania, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2990 CIVIL 1989 IN RE: DEFENDANTS' POST -VERDICT MOTIONS BEFORE SHEELY P.J. and OLER J. ORDER OF COURT AND NOW, this I t4 day of August, 1993, upon careful consideration of Defendants' Post -Verdict Motion, as well as the briefs and oral arguments presented in the matter, Defendants' Motion is DENIED. BY THE COURT, �C J. 4esley Oler, Jr J. Dusan Bratic, Esq. 101 Office Center, Suite A 101 U.S. Route 15 South Dillsburg, PA 17019 Attorney for Plaintiff Karl R. Hildabrand, Esq. 111 Market Street P.O. Box 93 Harrisburg, PA 17108-0093 Attorney for Defendants :rc ROBERT L. BOWERS, Plaintiff V. ADAMS WHOLESALERS and MAMCO of Pennsylvania, Defendants Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2990 CIVIL 1989 IN RE: DEFENDANTS' POST -VERDICT MOTIONS BEFORE SHEELY, P.J., and OLER J OPINION AND ORDER OF COURT At -issue in the present case is a Motion for Post -Trial Relief filed by Adams Wholesalers and MAMCO of Pennsylvania (Defendants) following a jury verdict in favor of Robert L. Bowers (Plaintiff). More specifically, Defendants have moved for judgment notwithstanding the verdict or, in the alternative, a new trial. For the reasons set forth in this Opinion, Defendants' Motion is denied. It is well settled in Pennsylvania that, in ruling on a motion for judgment notwithstanding the verdict, a court will consider "only the evidence which supports the verdict ... and ... must give the verdict winner the benefit of all doubt and of every fact and inference deducible from the evidence." Lilley v. Johns -Manville Corp., 408 Pa. Super. 83, 91, 596 A.2d 203, 207 (1991), allocatur denied, 530 Pa. 644, 607 A.2d 254 (1992). Moreover, "judgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds would disagree that the verdict was improper." Golibart v. Reamer, 415 Pa. Super. 623, 626, 610 A.2d 56, 58, allocatur denied, _ Pa. _, 616 A.2d 985 (1992). No. 2990 Civil 1989 Pursuant to the foregoing standard, the facts of this case may be summarized in the following manner. At all relevant times, Plaintiff was employed by Wickes Lumber, as an outside salesman,' and his duties involved selling construction material to contractors, architects, and engineers.' Approximately once or twice a week, Plaintiff would pick up these items and deliver them to his customers or to the construction sites.3 On August 21, 1987,4 Plaintiff went to Defendants' place of business to pick up certain materials ordered by one of his customers.' At this time, Plaintiff took the necessary paperwork to the employees of Defendants and was told that he could park his pick-up truck, a Chevy 5-10 model, at one of the empty loading bays.' After backing his truck up to the raised loading bay, Plaintiff opened the tailgate and the back of the cap of the truck and waited for an employee of Defendants to bring the materials that had been ordered.' Shortly thereafter, an employee of Defendants arrived on the loading bay with 1 Bowers v. Adams Wholesalers, No. 2990 Civil 1989, Trial Transcript, January 25-27, 1993, N.T. 9 (hereinafter N.T. �. 2 N.T. 11. 3 N.T. 11. 4 N. T. 14. 5 N.T. 15. 6 N.T. 16-18. 7 N.T. 19. 2 No. 2990 Civil 1989 a cart containing the materials.' The employee proceeded to remove the materials from the cart and hand them down to Plaintiff so that he could load them into his truck.9 After the cart had been emptied, Plaintiff and the employee realized that only a portion of the materials ordered had been on the cart; consequently, the employee departed to obtain the remainder of the materials.10 Subsequently, Plaintiff became aware that the employee had returned with the remainder of the ordered items." As Plaintiff proceeded toward the back of his truck, he saw that the employee had again left the loading bay and decided to wait until he returned before resuming the process of loading his truck." While Plaintiff was waiting for the employee to return to the loading dock, he began rearranging the items in his truck to make room for the items that were on the cart." As he did so, the cart, which had been left unattended on the loading bay, fell off the dock, and the materials contained thereon struck Plaintiff across the back.14 d N.T. 20. 9 N.T. 20. to N.T. 21. 11 N.T. 22. 12 N.T. 22. 13 N.T. 22-23. 14 N.T. 31-32. 3 No. 2990 Civil 1989 At trial, Plaintiff testified that he was not doing anything to the cart or the materials on the cart at the time it fell.15 Furthermore, Plaintiff presented the expert testimony of Lawrence Charles Dinoff, a registered architect and expert in loading dock design and mechanical engineering.18 In his testimony, Mr. Dinoff reported that his examination revealed that the loading dock displays a slope.17 Furthermore, Mr. Dinoff indicated that the design of the "typical" cart used at Defendants' business makes it 'very sensitive to the location of the center of gravity of the cart and its load,"18 and that the cart "is very delicately balanced so that three pounds is enough to turn it from one side to the other."19 As such, Mr. Dinoff stated that "the design of the cart and the tippiness of the cart [make] it very susceptible to shifting position in an unanticipated manner." 20 Mr. Dinoff also discussed the mechanics of the design of the loading dock at Defendants' business. First, Mr. Dinoff indicated that, in his opinion, the lack of a toe 15 N.T. 32. is N.T. 111-112,119. 17 N.T. 126. 18 N.T. 133. is N.T. 134. 20 N.T. 145. At trial, there was differing testimony as to the design of the cart which fell on Plaintiff. Following the accident, Plaintiff had drawn a picture of the cart indicating that it had only four wheels. At trial, Plaintiff explained that he "didn't really pay that much attention to" the side of the cart. N.T. 100. Furthermore, Mr. Dinoff indicated that he "was told by the MAMCO representative that [the six wheel cart] was a typical cart [used] at the time that [Plaintiff] was there." N.T. 172. 4 No. 2990 Civil 1989 board and a gate guard on the 47 -inch high loading dock made it dangerous.21 Moreover, Mr. Dinoff testified that the particular bay area in question was not suitable for loading smaller pick-up trucks such as the one used by Plaintiff.' Mr. Dinoff also indicated that, in order to avoid an accident like the one which occurred in this case, wheel locks could have been placed on the carts or two wooden blocks could have been placed on either side of the wheels to prevent the cart from rolhng.23 Following deliberations, the jury returned a verdict finding Defendants negligent and also finding Plaintiff contributorily negligent. However, the jury found that only Defendants' negligence was a substantial factor in bringing about Plaintiff's injuries and awarded $35,000 in damages to Plaintiff. Defendants have filed the present post -verdict motion for judgment notwithstanding the verdict or a new trial. More specifically, they contend the following: (1) that "Plaintiff failed to introduce evidence at trial regarding any causal negligence of Defendants in the happening of Plaintiff's injury";24 (2) that the trial court erred in admitting the expert testimony of Mr. Dinoff because Plaintiff did not 21 N.T. N.T. 148-49. In stating this opinion, Mr. Dinoff made reference to and relied upon OSHA regulations which require such precautionary measures for loading docks which are 48 inches or higher. N.T. 147. 22 N.T. 150. ' N.T. 150. 24 Defendant's Motion for Post -Trial Relief, paragraph 1. 5 No. 2990 Civil 1989 identify this expert until one week before trial;26 (3) that the 'Jury's finding of negligence but no causation with respect to the actions of Plaintiff ... is inconsistent with the evidence presented"; 20 and (4) that the 'Jury's verdict in finding causal negligence on the part of the Defendants is inconsistent with and against the weight of, the evidence presented at trial.i27 With respect to Defendants' contention that Plaintiff failed to adduce any evidence establishing causal negligence on the part of Defendants, it is well settled in Pennsylvania that, for negligence cases, "the fundamental rule of law is that the plaintiff must prove by a preponderance of the evidence that the defendant was negligent and that his negligence was the proximate cause of the accident." Harvilla v. DelCamp, 521 Pa. 21, 25, 555 A.2d 763, 764 (1989). In connection with this burden, "Tilt is elementary law that the mere happening of an accident does not establish or prove negligence." Raibley v. Kanze, Inc., 221 Pa. Super. 234, 238, 289 A.2d 161, 163 (1972). However, even though a plaintiff cannot recover by merely proving that an accident -happened, "it is ... axiomatic that circumstantial evidence may provide appropriate and adequate proof of negligence and proximate cause." Harvilla v. DelCamp, 521 Pa. 21, 25, 555 A.2d 763, 764 (1989). 25 Id., paragraph 5; although the Court offered a continuance to Defendant if they felt the need for further preparation, Defendants chose to proceed to trial. N.T. 108. 26 Id., paragraph 9. 27 Id., paragraph 10. 2 No. 2990 Civil 1989 In this regard, it is the law in Pennsylvania that "whether ... the plaintiff has demonstrated, by a preponderance of the evidence, that the defendant's negligent conduct was a substantial factor in bringing about the plaintiff's harm, is normally a question of fact reserved for the jury, and should only be removed from the jury's consideration where it is clear, as a matter of law, that reasonable minds could not differ on the issue." Alumni Association v. Sullivan, 369 Pa. Super. 596, 602, 535 A.2d 1095, 1098 (1987), affirmed, 524 Pa. 356, 572 A.2d 1209 (1990). "[A] jury is not permitted to reach a verdict based upon guess or speculation." Hyatt v. County of Allegheny, 120 Pa. Commw. 161, 164, 547 A.2d 1304, 1306 (1988), allocatur denied, 523 Pa. 651, 567 A.2d 654 (1989). However, "[w]hen there are two theories as to how an accident happened, one imposing liability on the defendant and the other excluding it, it is for the jury to decide which theory is so bolstered by fact, logic, credibility of witnesses and natural sequence of events that it predominates in probability over the other." Mayberry v. Blue Ridge Soil Pep, Inc., 402 Pa. 264, 269, 167 A.2d 264, 267 (1961). In the present case, Plaintiff has presented evidence which would support the jury's finding that Defendants were negligent and that this negligence was a substantial factor in causing Plaintiffs injury. In particular, Plaintiff himself testified that he had done nothing to the cart which could have caused it to fall off the loading dock. Moreover, Mr. Dinoff, Plaintiff's expert witness, pointed to several factors with respect to Defendants' operation which could have caused, or prevented, the movement h No. 2990 Civil 1989 of the cart. Defendants' employee left the cart unattended in the aforesaid circumstances and at risk to the Plaintiff below. Based upon this evidence, we cannot say as a matter of law that reasonable minds could not differ as to the cause of Plaintiff's injuries. As such, the jury's finding that Defendants were causally negligent must stand. With respect to Defendants' contention that the trial court erred in admitting the expert testimony of Mr. Dinoff because of Plaintiff's late disclosure of such testimony, it has been noted that, "[i]n order for a party to obtain a sanction as a result of another party's failure seasonably to disclose the identity of an expert witness and the substance of the expert's report, prejudice to the complaining party must be shown." Royster v. McGowen Ford, Inc., 294 Pa. Super. 160, 168, 439 A.2d 799, 804 (1982). In addressing this issue, the Superior Court of Pennsylvania has set forth the following factors to be considered in determining whether to exclude expert testimony because of a party's failure to timely disclose such testimony: (1) the extent of any actual `prejudice or surprise' suffered by the party against whom the expert testified; (2) the ability of that party to cure the prejudice or surprise; (3) the extent to which allowance of the testimony disrupted the `orderly and efficient trial of the case or of other cases in the court'; and (4) the `bad faith or willfulness' of the party that has failed to comply with the [rule]. Neal by Neal v. Lu, 365 Pa. Super. 464, 474-75, 530 A.2d 103, 109 (1987). Applying these factors to the present case, we believe that the testimony of Plaintiff's expert was properly admitted. Although Plaintiff did not promptly disclose Rl No. 2990 Civil 1989 his expert witness, a circumvention of any prejudice which would have been experienced by Defendants as a result of Plaintiff's late disclosure was offered to Defendants by the by the Court in the form of a continuance.28 Furthermore, as evidenced by their presentation of expert testimony to counter that of Mr. Dinoff, Defendants were able to deal with any alleged prejudice and surprise caused by Plaintiff's late disclosure of his witness. Finally, there is no indication in the record that Plaintiff's untimely disclosure of his expert witness disrupted the orderly and efficient trial of this case or resulted from bad faith or willfulness on the part of Plaintiff. Consequently, Defendants' motion for a new trial on this ground must be denied. Finally, with respect to Defendants' contention that the jury's verdict was inconsistent in finding that Plaintiff was contributorily negligent but that such negligence was not a substantial factor in causing his injuries, and in finding that Defendants were negligent and that their negligence was a substantial factor in causing the injuries, it should be noted that "there is a presumption of consistency with respect to a jury's findings which can only be defeated where there is no reasonable theory to support the jury's verdict." Giovanetti v. Johns -Manville Corp., 372 Pa. Super. 431, 440, 539 A.2d 871, 875 (1988). Moreover, "[i]n dealing with issues involving the weight of the evidence, Pennsylvania courts will not grant a new trial unless the verdict is so contrary to the evidence as to shock the court's sense of 28 See note 25 supra. 9 No. 2990 Civil 1989 justice." Id. We cannot say that there is no reasonable theory to support the jury's verdict. Nor can we say that the verdict is so contrary to the evidence as to shock this Court's sense of justice. As mentioned above, Plaintiff testified that he did not touch the cart or remove items therefrom. Furthermore, the testimony of Mr. Dinoff indicated that several aspects of Defendants' operation rendered unnecessarily precarious the situation involving an unattended cart such as that which fell upon the Plaintiff. As a result, the evidence created a reasonable theory that the Plaintiff's conduct was not a substantial factor in causing his injuries, that Defendants were negligent, and that this negligence was a substantial factor in causing his injuries. For the foregoing reasons, the following Order is entered: ORDER OF COURT AND NOW, this q& day of August, 1993, upon careful consideration of Defendants' Post -Verdict Motion, as well as the briefs and oral arguments presented in the matter, Defendants' Motion is DENIED. Dusan Bratic, Esq. 101 Office Center, Suite A 101 U.S. Route 15 South BY THE COURT, _s/ J. Wesley Oler, Jr J. Wesley Oler, Jr. J. 10 No. 2990 Civil 1989 Dillsburg, PA 17019 Attorney for Plaintiff Karl R. Hildabrand, Esq. 111 Market Street P.O. Box 93 Harrisburg, PA 17108-0093 Attorney for Defendants :rc 11