J-S56018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CLARISSA GAMBLE                               IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                        v.

    MICHAEL ANDERSON, GEORGE
    KINSLER, S3 ENTERPRISES, LLC,
    CHARLES MORRISON, LARRY DABNEY,
    AND CITY OF PHILADELPHIA

    APPEAL OF: S3 Enterprises, LLC                    No. 705 EDA 2017


                Appeal from the Judgment Entered March 3, 2017
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No: August Term, 2014 No. 2317


BEFORE: BOWES, STABILE, and PLATT*, JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 28, 2017

        Appellant, S3 Enterprises, LLC (“S3”), appeals from the judgment

entered on March 3, 2017 in the Court of Common Pleas of Philadelphia County

in favor of Appellee, Clarissa Gamble (“Gamble”) and against S3.1            S3


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 On August 16, 2016, a jury returned a verdict in favor of Gamble and against
S3. S3 filed a motion for post-trial relief, which was denied by order entered
December 22, 2016. S3 filed an appeal to this Court before judgment was
entered on the verdict. By Order of March 3, 2017, S3 was directed to enter
judgment on the verdict and was advised that, upon compliance with Pa.R.A.P.
301, the notice of appeal previously filed would be considered filed after entry
of the judgment. S3 filed its praecipe for entry of judgment the same day.
Therefore, the appeal is properly before this Court.
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contends it is entitled to a new trial based on trial court error for refusing to

give two requested jury instructions. Following review, we affirm.

       As the trial court explained:

             On April 8, 2013, [Gamble] left her home in the 4500 block
       of North Broad Street to go to work. As she was walking along
       the sidewalk in front of the property at 4524 N. Broad Street and
       the vacant lot at 4526 N. Broad Street, [Gamble’s] feet got stuck
       in a crack in the pavement of the sidewalk. As she tried to get
       her foot unstuck, she fell forward and landed on her knees,
       stomach and chin. [Gamble] suffered injuries as a result of her
       fall.

             [Gamble] filed a negligence action against various property
       owners, including [] Michael Anderson and [S3], as well as the
       City of Philadelphia. Following a jury trial, the jury returned a
       verdict in favor of [Gamble] and against [S3] in the amount of
       $65,000.

Trial Court Rule 1925(a) Opinion, 5/9/17, at 1.2

       On appeal, S3 asks us to consider two issues:

       A. Did the trial court commit reversible error by refusing to give
          [S3’s] proposed point for charge 5, Standard Pennsylvania Jury
          Instruction 18.50 (Civ), duty of property owner to a licensee?

       B. Did the trial court commit reversible error by refusing to give
          [S3’s] proposed point for charge 9, Standard Pennsylvania Jury
          Instruction 13.220 (Civ), assumption of risk?

Appellant’s Brief at 2-3 (some capitalization omitted).

____________________________________________


2 At the conclusion of the Gamble’s case-in-chief, the trial court granted a
nonsuit in favor of defendant City of Philadelphia for failure to establish notice
under Political Subdivisions Tort Claims Act, 42 Pa.C.S.A. § 8542(b)(7)
(Sidewalks). See Notes of Testimony (“N.T.”), Trial, 8/15/16, at 179-80. The
jury subsequently found the owner of an adjacent property, defendant Michael
Anderson, not negligent.


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      When reviewing a challenge to the trial court’s refusal to give specific

jury instructions, our standard of review is limited to determining whether the

trial court committed a clear abuse of discretion or an error of law that

controlled the outcome of the case. Commonwealth v. Sandusky, 77 A.3d

663, 667 (Pa. Super. 2013) (quotation omitted). Moreover,

      A jury charge will be deemed erroneous only if the charge as a
      whole is inadequate, not clear or has a tendency to mislead or
      confuse, rather than clarify, a material issue. A charge is
      considered adequate unless the jury was palpably misled by what
      the trial judge said or there is an omission which is tantamount to
      fundamental error.       Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties and
      its refusal to give a requested charge does not require reversal
      unless the Appellant was prejudiced by that refusal.

Amato v. Bell & Gossett, 116 A.3d 607, 621 (Pa. Super. 2015) (quoting

Sandusky, 77 A.3d at 667 (Pa. Super. 2013) (citation omitted)). Further, as

our   Supreme    Court   has   explained,   “[t]he   Suggested   Standard    Jury

Instructions themselves are not binding and do not alter the discretion

afforded trial judges in crafting jury instructions; rather, ‘[a]s their title

suggests, the instructions are guides only.’” Commonwealth v. Simpson,

66 A.3d 253, 274 n. 24 (Pa. 2013) (quoting Butler v. Kiwi, S.A., 604 A.2d

270, 273 (Pa. Super. 1992)).

      In its first issue, S3 argues the trial court erred in refusing to give S3’s

requested jury instruction relating to the duty of care owed to a licensee, such

as Gamble, by the owner of land. “The duty owed a licensee in Pennsylvania


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was established by our Supreme Court in Sharp v. Luksa, 440 Pa. 125, 269

A.2d 659 (1970), when it adopted the language of section 342 of the

Restatement (Second) of Torts.” Cresswell v. End, 831 A.2d 673, 677 (Pa.

Super. 2003). Section 342 provides:

     A possessor of land is subject to liability for physical harm caused
     to licensees by a condition on the land if, but only if, (a) the
     possessor knows or has reason to know of the condition and
     should realize that it involves an unreasonable risk of harm to such
     licensees, and should expect that they will not discover or realize
     the danger, and (b) he fails to exercise reasonable care to make
     the condition safe, or to warn the licensees of the condition and
     the risk involved, and (c) the licensees do not know or have reason
     to know of the condition and the risk involved.

Restatement (Second) of Torts § 342.

     The instruction requested by S3 is as follows:

     18.50 (Civ) [OWNER] [OCCUPIER] OF LAND
                 (DUTY OF CARE OWNED TO                      LICENSEES
                 GENERALLY

     A person walking upon a sidewalk in front of a landowner’s
     property is deemed a licensee under Pennsylvania law. Palange
     v. City of Philadelphia, 640 A.2d 1305 (Pa. Super. Ct. 1994).

     An [owner] [occupier] of land is required to use reasonable care
     to make the land as safe as it appears, or to disclose to the
     licensees the risks they will encounter. An [owner] [occupier] of
     land is liable for harm cause to the licensees by a condition of the
     land, if

           1. The [owner] [occupier] of land knows or has reason
              to know of the condition, should realize that it involves
              an unreasonable risk of harm, and should expect that
              the licensees will not discover or realize the danger,
              and




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              2. The [owner] [occupier] fails to use reasonable care to
                 make the condition safe, or to warn the licensees of
                 the condition and the risk involved, and

              3. The licensees do not know or have reason to know of
                 the condition and the risk involved.

Appellant’s Proposed Points for Charge 5, 11/22/16 at 7.3

       Before charging the jury, the trial judge conducted a charging

conference. With respect to requested Charge 5, the court explained, “[A]s

to the more specific [requested] instruction regarding duties to licensee, given

the fact that the same instructions have a specific instruction on the duty of

care for someone in the possession of land for sidewalks, that specific

instruction will control, and your exceptions are otherwise noted.” N.T., Trial,

8/16/16, at 11. Rather than deliver S3’s requested instruction, the trial court

delivered an instruction incorporating Suggested Standard Jury Instruction

18.80, relating to the duty of care for the possessor of land abutting a

sidewalk, stating:

       Negligent conduct may consist either of an act or [omission] to
       act when there’s a duty to do so. In other words, negligence is
       the failure to do something which a reasonably careful person
       would do or that doing something which a reasonably careful
____________________________________________


3 We note that the title given to the proposed instruction implies that it is the
suggested standard instruction. However, the suggested instruction does not
include any reference to Palange. As such, the requested instruction was not
a suggested standard instruction. Further, as Gamble notes, the suggested
standard instruction indicates that the owner or occupier of land is required to
use reasonable care to make the land as safe as it appears or to disclose to
licensees the risks they will encounter. Appellee’s Brief at 9. There was no
evidence that S3 did either. Id. (citing N.T. 8/15/16, at 54-57 and 63-66).


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      person would not do in light of all the surrounding circumstances
      established by the evidence in this case.

      It is for you to determine how a reasonable person would act in
      these circumstances. Let me explain the specific duty of care that
      is at issue in this case.

      A person in possession of land is required to maintain the abutting
      public sidewalks in a reasonably safe condition to prevent or
      eliminate any hazard or unsafe condition that, upon all the
      circumstances involved, would be a reasonable (sic) risk of harm
      to pedestrians properly using the sidewalks.

N.T., Trial, 8/16/16, at 105. The trial court further instructed the jury on

Gamble’s burden of proving negligence on the part of the defendants and

the defendants’ burden of proving negligence on the part of Gamble. Id.

at 103-04, 110-11.

      In its Rule 1925(a) opinion, the trial court explained:

      In Pennsylvania, it is well-settled law that a property owner has a
      duty to keep the sidewalk of their property in a reasonably safe
      condition for travel by the public. Property owners must maintain
      their sidewalks so that they do not present an unreasonable risk
      of harm to pedestrians.

      ....

      Here, [S3’s] corporate designee, Ajay Singhal, testified that he
      owned several properties in the city as investments and that he
      managed the properties himself. With respect to the property
      where [Gamble] fell, Singhal visited that property occasionally to
      mow the grass or to clear the lot. He testified that the condition
      of the sidewalk in front of the property was essentially the same
      as the date on which he purchased the property. Singhal admitted
      that the condition of the sidewalk posed a tripping hazard if a
      person was not careful. There was no evidence that Singhal made
      any effort to repair the sidewalk.

      [Gamble] testified that she lived on the same side of the block
      where [S3’s] property was located for approximately a year and

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      that she walked by the property twice a day. [Gamble] was aware
      of the deteriorated condition of the sidewalk. She described it as
      “broken, uneven, cracked, sinking.” [N.T. 8/15/16] at 120. She
      testified that she was careful when she walked on that sidewalk
      because she knew she could potentially trip and fall and injure
      herself.

Trial Court Rule 1925(a) Opinion, 5/9/17, at 4-5 (citations and some

references to notes of testimony omitted).

      We find the court’s instructions, taken as a whole, were proper. We do

not find any clear abuse of discretion or error of law on the part of the trial

court in rejecting the requested instruction in favor of a suggested standard

instruction that addressed the specific duty owed by the possessor of land

abutting a sidewalk. The instruction properly informed the jury of the duty

owed by S3, accurately described the law, and did not mislead the jury. Again,

the trial court has broad discretion in fashioning its jury instructions and is not

required to deliver every requested charge. S3’s first issue fails.

      S3 next complains that the trial court erred in refusing to deliver an

assumption of risk charge based on Suggested Standard Jury Instruction

13.220 (Civ). As the trial court explained, “Given the fact I’m instructing on

comparative negligence, the assumption of risk instruction is no longer

warranted. Those instructions, at least according to the standard instructions,

are limited to strict liability cases; or where it’s provided by statute[.]” N.T.

Trial, 8/16/16, at 11. In its 1925(a) opinion, the trial court observed:

      The Subcommittee Note to Pennsylvania Suggested Standard Civil
      Jury Instruction 13.220, entitled “Plaintiff’s Assumption of Risk,”
      states that “No jury instruction is provided here because

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        assumption of the risk is a question for the court to decide upon
        a nonsuit motion and not a matter for jury determination in
        negligence actions.” The Note further explains, while the defense
        of assumption of risk has generally been replaced by comparative
        negligence, it still remains a viable defense under certain specific
        situations, such as in strict liability cases or where it is specifically
        preserved by statute.

Trial Court 1925(a) Opinion, 5/9/16, at 7.

        Here, S3 did not request a nonsuit based on assumption of risk. Clearly,

the case did not involve strict liability or a statute preserving assumption of

risk.   Rather, the case was one of simple negligence, asking the jury to

determine whether S3 was negligent for failure to satisfy its duty as the

possessor of land abutting a sidewalk, and further asking the jury if Gamble

acted reasonably under the circumstances, knowing the deteriorated condition

of the sidewalk.        The trial court appropriately instructed the jury on

comparative negligence. We find no error in the court’s refusal to instruct the

jury on assumption of risk. S3’s second issue lacks merit.

        Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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