J-A33007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RUICK L. ROLLAND AND HOLLY                  IN THE SUPERIOR COURT OF
ROLLAND, H/W                                      PENNSYLVANIA

                      Appellant

                 v.

STEVEN SENN, SENN LANDSCAPING,
INC., BRUCE IRRGANG, UNITED
CONSTRUCTION SERVICES, INC.,
MODERN EQUIPMENT SALES & RENTAL
CO., AND MODERN GROUP, LTD.

                      Appellees                 No. 2695 EDA 2013


             Appeal from the Order Entered August 6, 2013
          In the Court of Common Pleas of Philadelphia County
                   Civil Division at No(s): 091203110


                                  *****

RUICK L. ROLLAND AND HOLLY                  IN THE SUPERIOR COURT OF
ROLLAND, H/W                                      PENNSYLVANIA

                 v.

STEVEN SENN, SENN LANDSCAPING,
INC., BRUCE IRRGANG, UNITED
CONSTRUCTION SERVICES, INC.,
MODERN EQUIPMENT SALES & RENTAL
CO., AND MODERN GROUP, LTD.

APPEAL OF: BRUCE IRRGANG AND
UNITED CONSTRUCTION SERVICES,
INC.
                                                No. 2697 EDA 2013


             Appeal from the Order Entered August 6, 2013
          In the Court of Common Pleas of Philadelphia County
                   Civil Division at No(s): 091203110
J-A33007-14


RUICK L. ROLLAND AND HOLLY                       IN THE SUPERIOR COURT OF
ROLLAND, H/W                                           PENNSYLVANIA

                       v.

STEVEN SENN, SENN LANDSCAPING,
INC., BRUCE IRRGANG, UNITED
CONSTRUCTION SERVICES, INC.,
MODERN EQUIPMENT SALES & RENTAL
CO., AND MODERN GROUP, LTD.

APPEAL OF: MODERN EQUIPMENT
SALES & RENTAL CO., AND MODERN
GROUP, LTD.
                                                     No. 2699 EDA 2013


                 Appeal from the Order Entered August 6, 2013
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 091203110


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 02, 2015

        Ruick L. Rolland (Ruick) and Holly Rolland (h/w) (collectively “the

Rollands” or “Plaintiffs”) appeal and Modern Equipment Sales & Rental Co.

and Modern Group, Ltd. (collectively “Modern Defendants”) and Bruce

Irrgang and United Construction Service, Inc. (“UCS” or collectively “Irrgang

Defendants”) cross appeal from the trial court’s order granting Irrgang

Defendants’ post-trial motions and ordering a new trial1 with regard to all
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See Pa.R.A.P. 311(a)(6) (“[a]n appeal may be taken as of right and
without reference to Pa.R.A.P. 341(c) from . . . [a]n order in a civil action or
proceeding awarding a new trial[.]”).



                                           -2-
J-A33007-14



Defendants in the underlying personal injury action instituted by the

Rollands. After careful review, we affirm.

       In 2009, Bruce Irrgang, hired Defendants to create a replica of the

Hogan     Bridge2    on   one    of    his   personal   estates   located   in   Wayne,

Pennsylvania.       At the time, Irrgang owned UCS.          Irrgang contracted with

Ruick3 to complete the electrical work on the project.            Defendant Stephen

Senn of Senn Landscaping was hired to remove silt from a pond that was

under the replica. To carry out the dredging, a 10,000 pound track loader

was leased by UCS from the Modern Defendants. Ruick, at the request of

Irrgang, ordered and signed the lease for the track loader when it was

delivered to the work site.           The Modern Defendants, in turn, loaned the

loader to the Senn Defendants.

       Upon its delivery to the work site, Stephen Senn’s ten-year-old son,

Stephen Senn, Jr. (Stevie), climbed into the loader, drove it to the pond on

the Irrgang property, and operated the loader intermittently for a total of an

hour that day. Senn told Ruick and the Modern employee who delivered the
____________________________________________


2
  The Hogan Bridge is located at the famous Augusta National Golf Club, in
Augusta, Georgia, the site of the Masters tournament. It is a footbridge that
takes golfers to the 12th green at Augusta and is named in honor of Ben
Hogan, a legendary golfer, who won the Masters in 1953.
3
  In 1999, Ruick began working primarily for Irrgang on his property
projects, was paid an hourly wage, talked multiple times a day on the phone
with Irrgang, and had weekly meetings with Irrgang to coordinate his work
schedule. Prior to the instant job, Ruick was working exclusively for Irrgang.




                                             -3-
J-A33007-14



loader that his son was a competent operator of the machinery. A few days

later, on August 14th, while Stevie was again operating the heavy

equipment, the child lost control of the track loader, striking and injuring

Ruick Rolland. As a result, Ruick required an above-the-knee amputation on

his left leg.4

       In December 2009, the Rollands filed this personal injury action

against the Senn Defendants, the Modern Defendants and the Irrgang

Defendants alleging numerous acts and omissions of negligence (i.e.,

negligent entrustment), recklessness, and strict liability and seeking both

compensatory and punitive damages.5 Plaintiffs moved for partial summary

judgment against Modern and Senn on their negligent entrustment claims.6

On April, 11, 2012, Judge Gary DiVito issued an order entering partial

____________________________________________


4
  The amputation was a result of an unsuccessful bypass procedure to save
the leg immediately following the accident.
5
   In October 2011, Modern commenced a declaratory judgment action
against USC and its insurer, Main Street America Assurance Company, after
USC and Main Street declined to contribute to Modern’s defense in Rolland’s
action against the Defendants. In 2014, our Court quashed Modern’s appeal
from the trial court’s order denying it partial summary judgment where
Modern’s alternative request for relief was not addressed by the trial court.
See Modern Equip. Sales v. Main Street Am. Assurance Co., 106 A.3d
784 (Pa. Super. 2014) (en banc).
6
  Modern unsuccessfully moved for reconsideration of the court’s summary
judgment order. Although the trial court stayed the trial, pending review of
Modern’s petition for interlocutory appeal of the summary judgment order,
our Court ultimately denied the petition and the Supreme Court denied a
petition for review.



                                           -4-
J-A33007-14



summary judgment with regard to liability, in favor of Plaintiffs and against

Modern    and   Senn,    leaving     the    amount   of   damages   and   relative

responsibilities of the other parties as issues to be decided at trial. On May

24, 2012, the trial court modified its April 11th order to specifically state that

summary judgment had not been granted with respect to Plaintiffs’ claims

for punitive damages.

      A three-week jury trial commenced on March 12, 2013, before the

Honorable John M. Younge.          One of the main issues at trial involved the

extent to which Ruick was in a supervisory capacity at the job site. Modern

maintained that Ruick was the supervisor at the jobsite; Irrgang testified at

his deposition that he specifically asked Ruick to get the boy off the jobsite

and that Ruick agreed “to take care of it.”          Bruce E. Irrgang Deposition,

5/17/11, at 110:13-16, 113:15-20. Conversely, Ruick testified that he was

an independent contractor who possessed no authority on the jobsite to

remove the ten-year-old from the track loader and that he, himself, was

inexperienced with track loaders.          Ruick Rolland Deposition, 5/23/11, at

197:5-8 & 18-22, 202:18-19; N.T. Jury Trial, 3/21/13, at 99:14-23, 111-14;

125-28.

      At trial, Irrgang chose not to testify; however, during his deposition,

Irrgang testified that he had known Ruick Rolland for approximately 20

years, had been using him to complete various projects on his properties

over the years, but that Ruick was never his employee.          Bruce E. Irrgang

Deposition, 5/17/11, at 36:14, 37:5-24, 38:1-9, 42:3-9.          Irrgang testified

                                           -5-
J-A33007-14



that in August 2009, Ruick was in charge of work being done at his Wayne

property, stating that Ruick would do “96 percent of everything,” and that

Ruick “handle[d] everything except the masonry work in regard to the

bridge [project].” Id. at 30:15-24, 56:6-12, 58:6-24. Irrgang stated that

both he and Ruick “explicitly understood” that Ruick was “in charge” as he

had “the keys to the job[,] [h]ad the keys to the house[,] had the keys to

the equipment [and] was the one that ran every job.”         Id. at 58:21-24,

59:1-7.    According to Irrgang, “Ruick was, quote-unquote, the man.

Everybody that stepped on to any one of my properties knew that they had

to report to Ruick first” and that “Ruick knew that he could make the

decisions” and had unfettered discretion to “do whatever he wanted.” Id. at

59:11-14, 59:19-20, 60:10-12.       Irrgang approved, through Ruick, Senn

having an experienced relative come to the site to help him remove the silt

from the pond. Id. at 120:21-24, 121:1-7. Irrgang, however, had no idea

that Stevie was operating any machinery at the site until three weeks after

the accident, id. at 141:12-16, was surprised that Ruick did not discuss

Stevie operating equipment at the site with him, id. at 142:16-19, and when

Irrgang confronted Ruick with the issue after the accident, Ruick admitted he

“messed up.” Id. at 143:2-3. Irrgang also testified that the masons on the

job site had approached Ruick prior to the accident and told him that they

did not think that Stevie should be operating the heavy equipment at the

site. Id. at 221:15-24. Finally, Irrgang testified that initially Ruick told him

Senn’s nephew was operating the track loader at the time of the accident

                                     -6-
J-A33007-14



because he “didn’t want to upset [Irrgang]”, id. at 191:7, 193:13-16, but

then a couple weeks later admitted that it was Stevie. Id. at 193:1-7.

       Defendant Senn invoked his Fifth Amendment rights and refused to

take the stand for fear of being exposed to criminal liability for allegedly

giving false information to the police following the accident.7 In lieu of live

testimony, Plaintiffs played for the jury designated portions of Senn’s

videotaped deposition, which consisted of testimony that Ruick was the site

supervisor who would instruct Senn where to put things and where to do

things, and was in charge of loading and moving operations. See Steven T.

Senn Deposition, 11/24/10, at 57:4-24 & 440:4-12 (“But Ruick was in

charge.” “If Ruick asked Stevie [Senn, Jr.] to do something then he was to

do it.”); id. at 61:1-24; id. at 131:20-23 (Ruick would “[o]verse[]

everything” with regard to the bridge work); id. at 440:13-18 (it was Senn’s

understanding that “Mr. Rolland was in charge at the site and if he gave you

direction you should follow it.”); id. at 507 (“He told me he was – he

oversees what goes on on all – Bruce [Irrgang’s] houses.”).         Senn also

stated that Ruick was never his employee during the Irrgang project.

Steven T. Senn Deposition, 11/22/10, at 340:9-16.



____________________________________________


7
  Senn allegedly collaborated with Ruick to tell police officers responding to
the accident that his nephew, Matt, had been operating the track loader
when the accident occurred so as not to implicate his young son, Stevie.
Steven T. Senn Deposition, 11/22/10, at 294-95; 344:8-14.



                                           -7-
J-A33007-14



      More than one week into trial, counsel for plaintiffs requested that

Defendants produce Senn’s recorded statement, taken by an adjuster

working for Senn’s workers’ compensation carrier.            Notes in the related

worker’s compensation file also included a phone interview between Ruick

and an adjuster in which Ruick claimed that Senn was his superior, that he

had been hired by Senn Landscaping as a W-2 employee, and that he was

supervising the construction project on the Irrgang property.           Specifically,

the adjustor’s notes indicated that Ruick:           (1) made sure there was no

property damage by other workers on the job; (2) made sure the job was

being completed; (3) supervised the Senn employees’ work; (4) shared the

supervising and physical work on the job with Senn, and (5) checked in with

Irrgang on the status of the job. This statement directly contradicted Ruick’s

trial testimony that he was an independent contractor at the worksite who

never supervised, directed, instructed or acted as though he was in charge

of Senn or Senn’s employees.

      The   trial   court   ordered   a    partial   production   of   the   workers’

compensation file for in camera review. Portions of the file were redacted.

The Rollands, Senn Defendants and Irrgang Defendants objected to its

admission, claiming that the notes had not been timely produced, could not

be cross-examined, and were of dubious reliability. The trial court ultimately

ruled the entire file inadmissible, concluding that it was more unfairly




                                          -8-
J-A33007-14



prejudicial than probative under Pa.R.E. 403.8 N.T. Jury Trial, 3/15/13, at

15. In response, Modern moved for a mistrial, which the trial court denied,

concluding that because summary judgment with regard to liability had

already been entered against Modern, it would not be prejudiced by the

failure to admit the file.9 Id. at 26-27.

        Ultimately, the jury returned a verdict in favor of the Rollands, finding

no     contributory    negligence10     and    apportioning   liability   as   follows:

Senn/Senn Landscaping (47%), Irrgang Defendants (32%), and the Modern

Defendants (21%). The jury awarded $20 million in compensatory damages

____________________________________________


8
  See Pa.R.E. 403 (court may exclude relevant evidence it its probative
value is outweighed by danger of one or more of following: unfair prejudice,
confusing issues, misleading jury, undue delay, wasting time, or needlessly
presenting cumulative evidence).
9
  Modern also attempted to subpoena the carrier’s claims representative that
took the alleged statements from plaintiff; however, the court precluded her
from testifying.
10
     Our Commonwealth’s comparative negligence statute states:

     (a)   General rule. --In all actions brought to recover damages for
           negligence resulting in death or injury to person or property, the
           fact that the plaintiff may have been guilty of contributory
           negligence shall not bar a recovery by the plaintiff or his
           legal representative where such negligence was not greater
           than the causal negligence of the defendant or defendants
           against whom recovery is sought, but any damages
           sustained by the plaintiff shall be diminished in proportion to
           the amount of negligence attributed to the plaintiff.

42 Pa.C.S. § 7102 (Comparative negligence) (emphasis added).




                                           -9-
J-A33007-14



to the Rollands (which includes $2 million for loss of consortium) and

$16,000 in punitive damages against Senn, individually, due to his

recklessness in the underlying accident.

       All Defendants and Plaintiffs filed post-trial motions. In their motions,

Defendants     sought     a   judgment         n.o.v   dismissing   the   complaint,   or,

alternatively, a new trial.         Modern specifically took issue with the trial

court’s ruling on excluding the workers’ compensation file from trial.

Plaintiffs, post-trial, sought to set aside the order dismissing their claim for

punitive damages as against the Modern and Irrgang Defendants.                         On

August 6, 2013, the trial court denied Plaintiffs’ motion, but granted the

Defendants’ motions, ordering a new trial on all issues.                  In its Pa.R.A.P.

1925(a) opinion, the trial court listed the following, specific reasons for

granting a new trial:         (1) the court committed prejudicial error when it

denied Modern Defendant’s motion for a mistrial following the production of

the Senn Defendant’s workers’ compensation carrier’s file; and (2) the

verdict was against the weight of the evidence and shocked the court’s

conscience, where the jury found no comparative negligence/liability on the

part of Ruick.11 Trial Court Opinion, 1/31/14, at 14. The court also clarified

that its post-trial rulings “were never meant to overturn or overrule the
____________________________________________


11
  The court further expounds upon this reason, stating that “superseding
cause was intertwined with this Court’s decision to award a new trial based
on the inconsistent nature of the [v]erdict that failed to assess comparative
negligence on the part of Mr. Rolland.” Trial Court Opinion, 1/31/14, at 26.



                                          - 10 -
J-A33007-14



Motion Court’s award of summary judgment in favor of Plaintiffs.” Id. at 15.

Rather, the court explained that the ruling had just contributed to the

problematic verdict. Id. at 20. The court determined that because the jury

apportioned negligence among multiple defendants, the grant of a new trial

should be held as to all defendants so that a new jury could hear all of the

evidence and re-apportion fault.

      Plaintiffs filed a timely notice of appeal from the August 6, 2013 order;

the Modern Defendants and Irrgang Defendants filed timely notices of cross-

appeal. On appeal, the Appellants, Plaintiffs/the Rollands, raise the following

issues:

      (1)   Did the trial court err as a matter of law, or otherwise
            abuse its discretion, when it ruled that a new trial was
            necessary based on the trial judge’s conclusion, stemming
            from his failure to consider the evidence in a light most
            favorable to the plaintiffs, that the jury’s finding that
            plaintiff was not liable to any extent whatsoever for his
            own injuries “shocked the conscience” of the trial judge?

      (2)   Did the trial judge err as a matter of law, or otherwise
            abuse his discretion, in concluding that a predecessor
            judge’s entry of summary judgment in favor of plaintiffs as
            to liability against the Modern and Senn defendants
            somehow prejudiced defendants UCS and Irrgang’s right to
            a fair trial on the subject of their own liability, such that it
            was proper to order a new trial at which the jury would be
            required to adjudicate the liability of all defendants, where:
            (i) UCS and Irrgang were afforded a fair opportunity to
            fully litigate every aspect of their own liability, causation,
            damages and contributory negligence; and (ii) the Senn
            defendants have conceded their responsibility for Rolland’s
            injuries?

      (3)   Did the trial court err as a matter of law, or otherwise
            abuse its discretion, when it concluded that it should have
            granted a mistrial at the request of the Modern defendants

                                     - 11 -
J-A33007-14


              after the trial court improperly ordered, sua sponte, in the
              midst of trial, the production of a worker[s’] compensation
              file that none of the parties was then seeking, when the
              trial court’s contemporaneous decision to exclude the
              worker’s compensation file represented a proper exercise
              of that court’s discretion?

       (4)    Whether, if this Court were to affirm the trial court’s
              grant of a new trial, this Court should remand to the
              trial court for a ruling in the first instance on plaintiffs’
              motion for post-trial relief seeking punitive damages
              against the Modern defendants, UCS, and Irrgang?

On cross-appeal, the Modern Defendants raise the following issue for our

consideration:

              Was Modern entitled to a judgment n.o.v. on the ground
              that plaintiff failed to demonstrate the existence of a
              legally-cognizable tort duty owed to him by Modern under
              the circumstances?12

Finally, on cross-appeal, the Irrgang Defendants present us with the

following claims:

       (1)    Did the trial court err in not granting judgment
              notwithstanding the verdict to Irrgang and UCS where
              Plaintiffs failed to present evidence capable of establishing
              that these defendants were negligent, or that their
____________________________________________


12
   While Modern raises three additional issues in its appellate brief (was
Modern prejudiced and denied right to fair trial in presenting its defense due
to mid-trial production of workers’ compensation file; was jury’s no
contributory negligence verdict with regard to plaintiff against weight of
evidence; and was Modern unfairly prejudiced and denied right to fair trial in
presenting its defense due to erroneous summary judgment orders), those
issues were all answered in the affirmative by the trial court and were the
bases of the trial court’s order granting a new trial. Therefore, they are not
“cross-appeal” issues, but rather counterstatements of Appellants’ issues, or,
most correctly termed “Appellees’ issues.”




                                          - 12 -
J-A33007-14


            negligence was a substantial cause of the [sic] Rolland’s
            accident and injury?

      (2)   Were Irrgang and UCS entitled to judgment because the
            evidence established that Rolland was reckless as a matter
            of law?

      (3)   Were Irrgang and UCS entitled to judgment because the
            evidence established that Rolland’s comparative negligence
            exceeded any possible negligence of the defendants as a
            matter of law?

      (4)   Alternatively, did the court err in failing to find that
            judgment would have been granted Irrgang and UCS
            because the Senn defendants were 100 percent liable for
            Plaintiffs’ harm?

      In Morrison v. Dep’t of Pub. Welfare, 646 A.2d 565, 570 (Pa.

1994), our Supreme Court set forth the proper appellate standard and scope

of review for a trial court’s decision to grant a new trial:

      [T]he decision to order a new trial is one that lies within the
      discretion of the trial court. [Coker v. S.M. Flickinger Co.,
      Inc.], 533 Pa. [441,] 447, 625 A.2d [1181,] 1184 [Pa. 1993].
      Thus, the standard for appellate review of such a decision is
      always an abuse of discretion standard. In contrast, the scope of
      the appellate court's review of the trial court's decision varies: It
      is determined by whether the trial court cites a finite set of
      reasons for its decision, indicating that but for the cited reasons
      it would not have granted a new trial, or "leaves open the
      possibility that it would have ordered a new trial for reasons
      other than those it specified. Id. at 446, 625 A.2d at 1184. If
      the trial court leaves open the possibility that reasons additional
      to those specifically mentioned might warrant a new trial, or
      orders a new trial "in the interests of justice," the appellate court
      applies a broad scope of review, examining the entire record for
      any reason sufficient to justify a new trial. Id. at 448, 625 A.2d
      at 1185. However, if, as in this case, the trial court
      "indicates that the reasons it gives are the only basis for
      which it ordered a new trial[,] . . . an appellate court can
      only examine the stated reasons. Id. at 449, 625 A.2d at
      1185.



                                      - 13 -
J-A33007-14



Id. at 570 (emphasis added). Moreover, our Court is to focus on whether

the trial court's stated reasons and factual basis are supported in the record.

Coker, 625 A.2d at 1187. "Where the record adequately supports the trial

court's reasons and factual basis, the court did not abuse its discretion." Id.

In considering whether the record supports the trial court's decision, “the

appellate court is to defer to the judgment of the trial court, for the trial

court is uniquely qualified to determine factual matters.”     Morrison, 646

A.2d at 571.   An abuse of discretion does not occur when the trial court

reaches a different decision than the appellate court would have reached.

Id.

      Instantly, Judge Younge explicitly listed the two reasons why he

granted a new trial in the underlying action. Accordingly, we are constrained

to confine our review on appeal to those stated reasons. Morrison, supra.

      We note that a new trial is not warranted merely because an

irregularity occurred at trial or because another judge may have ruled

differently. Bey v. Sacks, 789 A.2d 232, 236 (Pa. Super. 2001). Rather,

the moving party must prove they suffered some prejudice as a result of the

error. Id.

      Here, the trial court determined that it erred in failing to grant a

mistrial following plaintiff’s production of the workers’ compensation file.

This error amounted to a mistake of a discretionary matter. At the time the

trial court was faced with making the decision regarding whether the file

would be admissible at trial, the court was not aware that Senn had actually

                                    - 14 -
J-A33007-14



submitted a claim to his carrier on Ruick’s behalf and that Ruick, Senn and

Irrgang had actually given a statement supporting that claim to Senn’s

insurer.     These     unknown facts13 raised the possibility that all the

Defendants, excluding Modern, had collaborated to defraud the insurance

company.14 The fact that the workers’ compensation file was not admitted

at trial effectively precluded Modern from cross-examining Ruick on whether

he, in fact, was in a supervisory position at the work site when the accident

occurred, which would have contradicted Ruick’s own deposition and trial

testimony, as well as the testimony of his witnesses at trial.         See Ruick

Rolland Deposition, 5/23/11 at 48:4-7; N.T. Jury Trial, 3/13/13, at 40, 48,

52.; N.T. Jury Trial, 3/21/13, at 125-28.          If the file had been admitted,

____________________________________________


13
  Counsel for Modern best expressed the impact that the failure to admit
the contents of the file had on the trial:

       The evidence that came up during trial involving the workers’
       compensation file, Judge, is not in and of itself necessarily an
       issue that didn’t come into the trial as much as that
       information is a substantial change in the facts and
       circumstances of this case where Mr. Rolland had made
       statements to another party that directly contradicted his
       testimony both at deposition and here on the stand.

N.T. Post-Trial Motions, 8/5/13, at 8-9 (emphasis added).

14
   Ruick testified that while he was in the hospital, following the accident,
Senn asked him to say that Ruick was his employee so he could collect
worker’s compensation benefits. See Deposition of Ruick Rolland, 5/23/11,
at 137:10-13. The insurance claim, however, was denied by Senn’s workers’
compensation carrier after it determined that Ruick was not employed by
Senn.



                                          - 15 -
J-A33007-14



statements made to the insurance carrier could have bolstered Modern’s

defense, which largely consisted of Ruick’s status as site supervisor who

failed to exercise his authority and intervene when he witnessed a 10-year-

old operating heavy machinery.        The file’s admission could also have

materially affected the pre-trial ruling on Ruick’s summary judgment motion,

as well as the ultimate outcome of trial by exposing Ruick’s participation in

an attempted fraud, and most importantly, called into question the

credibility of the other defendants who maintained that Ruick was a

supervisor on the job site. Most critical, however, is the fact that if the jury

were to have believed that Ruick was a supervisor at the site, it would have

had a direct bearing on whether Ruick was contributorily negligent in the

accident.

Admission of Workers’ Compensation File

      Our review of a trial court’s decision to admit or exclude evidence is

well-settled:

      When we review a trial court ruling on admission of evidence, we
      must acknowledge that decisions on admissibility are within the
      sound discretion of the trial court and will not be overturned
      absent an abuse of discretion or misapplication of the law. In
      addition, in order for a ruling on evidence to constitute reversible
      error, it must have been harmful or prejudicial to the
      complaining party.

Geise v. Nationwide Life & Annuity Co. of Am., 939 A.2d 409, 417 (Pa.

Super. 2007)

      Here, Defendants failed to produce statements made by Ruick and

Senn to Senn’s insurance carrier regarding the accident.        The content of

                                     - 16 -
J-A33007-14



those alleged statements concerned the extent to which Ruick was involved

in supervising the worksite. During trial, the judge concluded that admission

of the file would be more prejudicial than probative and excluded the

evidence.     However, upon further consideration, the court discovered that

the file contained additional statements that could have been a source of

impeachment evidence against Ruick and helped bolster Modern’s defense at

trial.    Post-trial, the trial judge concluded that the contents of the file,

specifically the notes regarding Ruick’s statements, should have been

admitted, as they were directly relevant to the issue of Ruick’s potential

contributory negligence in the underlying accident.         See Pa.R.E. 401

(evidence is relevant if it tends to make fact more or less probable than it

would be without evidence and fact is of consequence in determining

action); see also Pa.R.E. 402 (all relevant evidence is admissible).

         Pursuant to Pa.R.E. 803(25), an opposing party’s statement is an

exception to the hearsay rule when it is offered against an opposing party

and was made by the party in an individual or representative capacity.

Pa.R.E. 803(25)(A).      Here, the court neither abused its discretion nor

committed an error of law in finding that it erred by failing to admit the

workers’ compensation file where its contents were admissible under Pa.R.E.

803(25) and relevant to the issue of Ruick’s contributory negligence.

Accordingly, we now review its decision to grant a new trial by applying an

abuse of discretion standard and focusing on whether the trial court’s stated

reasons and factual basis are supported in the record. Morrison, 646 A.2d

                                     - 17 -
J-A33007-14



at 571. We accomplish this by deferring to the judgment of the trial court,

as the trial court is uniquely qualified to determine factual matters. Id.

      In Morrison, supra, a trial court granted a new trial based on its

decision to deny defendant’s motion in limine to preclude plaintiff from

introducing evidence that the defendant’s ambulance crew failed to stay at

the scene of the victim’s accident. Because no evidence had been presented

to show that the victim could have survived the accident, and, in fact, that

the evidence supported a finding to the contrary, the court found that “it had

committed very serious trial court error in permitting the evidence and

argument regarding the [defendant ambulance crew’s] conduct following the

accident.” Id. at 658.

      Here, we find that the content of the workers’ compensation file, which

called into question Ruick’s supervisory capacity at the worksite, was

relevant to the issue of his contributory negligence.      The issue of Ruick’s

status at the accident site bore directly on the issue of his potential liability

in openly permitting a ten-year-old child to operate the track loader and any

inconsistent testimony he may have given went directly to its weight and

Ruick’s credibility. Because Modern was unable to cross-examine Ruick with

his contradictory statement regarding his involvement in the operations of

the work site, the court properly determined that a new trial was warranted

as a result of its failure to admit the evidence which had a direct bearing on

Modern’s defense. Id. Thus, the trial court’s determination that the failure

to admit the evidence prejudiced Modern, and thus necessitated the grant of

                                     - 18 -
J-A33007-14



a new trial, is supported in the record.           Morrison, supra. Therefore, the

trial court did not abuse its discretion.15

Was verdict against the weight of the evidence requiring a new trial?

       Here, the trial court granted a new trial “because the [v]erdict

assessing no comparative negligence against Mr. Rolland was against the

sheer weight of the evidence to such an extent that it shocked the

conscience of th[e] Court.” Trial Court Opinion, 1/31/14, at 14.

       A new trial is granted on the basis that the verdict is against the

weight of the evidence when the jury’s verdict is so contrary to the evidence

as to shock one’s sense of justice and a new trial is necessary to rectify this

situation.    Folger v. Dugan, 876 A.2d 1049, 1053 (Pa. Super. 2005)

(citation omitted). However, a new trial will not be granted on the ground

that the verdict was against the weight of the evidence where the evidence

is conflicting and the fact-finder could have decided in favor of either party.

Lanning v. West, 803 A.2d 753, 765-66 (Pa. Super. 2002).

____________________________________________


15
    The trial court’s original premise, that because Modern had conceded
liability prior to trial the failure to admit the workers’ compensation file had
not impacted [Modern’s negligence] one bit” is incorrect. This is highlighted
by the fact that Modern’s counsel was not even made aware of the existence
of the worker’s compensation file, and any accompanying party statements,
until the afternoon of March 14, 2013 – already two days into trial. Had this
file been available prior to Plaintiffs’ partial summary judgment motion, it
most likely would not have conceded liability. Accordingly, the issue of all
parties’ negligence would have been before the jury, including any evidence
to discredit Ruick’s trial testimony that he did not act in a supervisory
capacity at the jobsite.



                                          - 19 -
J-A33007-14



      Instantly, the trial court found that a new trial was warranted based on

the fact that the jury found no comparative negligence on the part of Ruick.

In Columbia Med. Group Inc. v. Herring & Roll, P.C., 829 A.2d 1184

(Pa. Super. 2003), our Court defined contributory negligence as:

      [C]onduct on the part of a plaintiff which falls below the standard
      of care to which he should conform for his own protection and
      which is a legally contributing cause, cooperating with the
      negligence of the defendant, in bringing about the plaintiff's
      harm.     Contributory fault may stem either from a plaintiff's
      careless exposure of himself to danger or from his failure to
      exercise reasonable diligence for his own protection.

Id. at 1192 (quotation omitted).

      Here, the trial court determined that the jury’s verdict of 0%

negligence on the part of Ruick was “extremely suspect given the posture of

this case as presented to the [j]ury.” Trial Court Opinion, 1/31/14, at 23.

Essentially the court below concluded that the evidence showed that Ruick

was to some degree at fault.       In essence, the verdict did not bear a

relationship to the evidence had the jury been given the opportunity to

consider the workers’ compensation file.

      The court noted that, at trial, Ruick testified that he was an

independent contractor, heavily involved in construction at the subject work

site, who signed for the delivery of the track loader.     By contrast, in his

statement to Senn’s insurance carrier, Ruick represented that he was not

only the supervisor on the job, but also operated the track loader at the site.

In fact, both Irrgang’s and Senn’s deposition testimony corroborates the

statement that Ruick was responsible for supervising all of the workers at

                                    - 20 -
J-A33007-14



the jobsite, and that he was “running everything that was going on on the

property.” See Deposition Steven T. Senn, 11/22/10, at 272-73; see also

Deposition of Bruce E. Irrgang, 5/17/11, at 59:11-14, 59:19-20, 85:1

(“Ruick supervised everybody.”).           Irrgang testified at his deposition that

Ruick admitted he messed up and that it was Ruick’s responsibility to make

sure all operations at the site were being carried out safely. Id. at 182:9-

20; 183:1-2. Moreover, Senn testified in his deposition that, at the moment

immediately preceding the accident, Ruick had stopped Stevie on the

roadway and told him where to redirect the track loader to avoid going over

a hose, Deposition of Steven Senn, 11/22/10, at 270-72, and that at that

point Ruick was supervising Stevie and was in charge of Stevie’s actions on

the jobsite.16    Finally, Senn testified at his deposition that when he ran to

the accident site, finding Ruick severely injured, Ruick told Senn that he had

been “in the wrong place at the wrong time” and that Ruick “had [his] foot in

the wrong place.” Id. at 284, 308 (“[Rolland said] he had his foot in front of

the track, where it shouldn’t have been.”).

       Jerry L. Purswell, Ph.D., a doctor of engineering and an expert in

teaching safety in the field of engineering and ergonomics,17 testified as a
____________________________________________


16
   In fact, Senn testified at his deposition that Ruick was supervising
everyone on the jobsite. Id. at 272.
17
   Ergonomics is the study of people's efficiency in their working
environment.   Ergonomists have attempted to define postures which
minimize unnecessary static work and reduce the forces acting on the body.



                                          - 21 -
J-A33007-14



witness for Modern, stating that it was unreasonable for Ruick to be closer

than 10 feet from a running track loader while he tried to flip a hose over

the top of the machine as it moved forward towards him. N.T. Jury Trial,

3/22/13, at 62-63. Doctor Purswell also opined that even if the track loader

were slowly proceeding towards Ruick (to the left) at the time of the

accident, it would have been impossible for Ruick’s leg to have been sucked

under the loader unless Ruick’s foot was actually in front of the tread. Id. at

70-74.

      Based upon this evidence we agree with the trial court that the jury’s

zero contributory negligence verdict was inconsistent with the fact that Ruick

was personally responsible for his own voluntary actions and decision to

closely approach the running track loader and give operating directions to a

ten-year-old.

      “[O]ne of the least assailable grounds upon which a new trial is

granted is the trial court's conclusion that the verdict is against the weight of

the evidence and, under such circumstances, an appellate court usually is

reluctant to interfere.”   Heffernan v. Rosser, 215 A.2d 655, 657 (Pa.

1966). Moreover, upon an appeal from the grant of a new trial, an appellate

court recognizes the burden which the appellant has to establish that the

action of the court below constituted a clear and palpable abuse of discretion

or an error of law which controls the case. Id.




                                     - 22 -
J-A33007-14



      Here, where the issue of contributory negligence bore upon the

ultimate apportioning of liability among the parties, the court properly

granted a new trial on the basis of the weight of the evidence.

J.N.O.V. Ruling for Modern and Irrgang Defendants

      Both Modern and Irrgang Defendants assert on appeal that even

though the trial court properly granted a new trial, they are entitled to a

judgment notwithstanding the verdict (JNOV).          Modern specifically claims

that it did not owe a legal duty to Ruick and, therefore, cannot be liable for

negligence as a matter of law. Irrgang Defendants argue that Ruick failed to

present evidence that it was negligent or that its negligence was a

substantial cause of Ruick’s accident and injuries.

      There are two bases upon which a court may enter a judgment
      n.o.v.: (1) the movant is entitled to judgment as a matter of
      law, Moure v. Raeuchle, [] 604 A.2d 1003, 1007 (Pa. 1992)
      (quoting Tremaine v. H.K. Mulford Co., [] 176 A. 212 (Pa.
      1935)), or (2), the evidence was such that no two reasonable
      minds could disagree that the outcome should have been
      rendered in favor of the movant, id. (quoting Cummings v.
      Nazareth Borough, [] 233 A.2d 874 (Pa. 1967)). With the first,
      a court reviews the record and concludes that even with all
      factual inferences decided adverse to the movant, the law
      nonetheless requires a verdict in their favor; whereas with the
      second, the court reviews the evidentiary record and concludes
      that the evidence was such that a verdict for the movant was
      beyond peradventure. Id.

Quinby v. Plumsteadville Family Practice, 907 A.2d 1061, 1074 (Pa.

2006).

      Modern asserts that once it delivered the track loader to the work site

and entrusted it to Ruick and UCS, via a lease agreement, it no longer owed

                                    - 23 -
J-A33007-14



a legal duty to Ruick or had any obligation to control the conduct of third

persons who might operate the machine.

      Instantly, Plaintiffs sued Modern under the theory of negligent

entrustment which states that “[i]t is negligence to permit a third person to

use a thing or to engage in an activity which is under the control of the

actor, if the actor knows or should know that such person intends or is likely

to use the thing or to conduct himself in the activity in such a manner as to

create an unreasonable risk of harm to others.”      Restatement (Second) of

Torts, § 308 (Permitting Improper Persons to Use Things or Engage in

Activities). At trial, Plaintiffs and Defendant Senn put forth evidence that the

Modern employee who delivered the track loader to the work site saw Stevie

operate the machine on two occasions.           The employee expressed his

astonishment to workers at the site with regard to seeing such a young child

operate the track loader and, as a result, subsequently reported the incident

to a Modern rental manager. With Modern on notice that its machine was

being operated by a minor, Plaintiff posited that it was Modern’s obligation to

confront Irrgang or Ruick, who signed for the machine, to advise them that

the equipment was only to be used by “competent operators” as per the

lease agreement. Plaintiffs also argued that Modern could have exercised its

right to repossess the equipment if it believed it was being used by

incompetent operators.     Because Modern failed to take either action, the

court properly chose to deny Modern’s motion for JNOV where there was a




                                     - 24 -
J-A33007-14



legitimate issue of the company’s negligent entrustment of the track loader

to the other Defendants and Plaintiff.

       Irrgang Defendants claim that j.n.o.v should have been granted in its

favor because Ruick failed to establish that Irrgang Defendants owed Ruick a

duty or exercised any control over the means and methods of the work

performed by the independent contractors involved in the pond-dredging

and bridge project on Irrgang’s property. We disagree.

       At trial, Ruick testified that Bruce Irrgang not only owned the property,

but hired and paid the salaries of each laborer on the job, and most

importantly, that those workers reported directly to Irrgang with regard to

the work that they were to perform on the property.         Moreover, Irrgang,

through his company, UCS, ordered and rented the track loader from

Modern for Senn’s use at his worksite.            Ruick testified that Irrgang

“micromanaged” all of the activities at the site and had ultimate authority

over   the   workers.    Accordingly,    the   court correctly denied Irrgang

Defendants’ motion for a JNOV where it was not entitled to judgment as a

matter of law on the issue of Irrgang’s duty and where two reasonable

minds could disagree that a decision should have been rendered in favor of

the movant. Quinby, supra.

       Conclusion

       Because the trial court’s stated reasons to grant a new trial are

supported in the record, and because the trial court was in the best position

to assess the effect on the jury of the evidence and argument, we conclude

                                     - 25 -
J-A33007-14



that the trial court did not abuse its discretion.18 Armbruster v. Horowitz,

813 A.2d 698 (Pa. 2002) (new trial should be granted only in truly

extraordinary circumstances, i.e., when jury's verdict is so contrary to

evidence as to shock one's sense of justice and award of new trial is

imperative so that right may be given another opportunity to prevail).19

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2015




____________________________________________


18
   Because we affirm the trial court’s order granting a new trial, we need not
address cross-appellants’ issues that relate to rulings in the now-nullified
trial. Chiaverini v. Sewickley Valley Hosp., 598 A.2d 1021, 1024 n.3
(Pa. Super. 1991).
19
   Having determined that a new trial was properly granted, we need not
revisit the issue of punitive damages which will, presumably, be presented at
the conclusion of the new trial.



                                          - 26 -
