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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MIRANDA GATES,                          :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :
                                        :
GREEN REAL ESTATE INVESTMENTS,          :            No. 842 EDA 2014
LLC AND MORRIS GENERAL                  :
CONTRACTOR, LLC                         :


           Appeal from the Judgment Entered January 28, 2014,
           in the Court of Common Pleas of Philadelphia County
           Civil Division at No. September Term, 2012 No. 1803


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED OCTOBER 14, 2015

     Miranda   Gates    (“Gates”)   appeals   from    the   judgment    entered

January 28, 2014, in favor of defendant/appellee Green Real Estate

Investments, LLC.1 After careful review, we affirm.


1
 Gates purports to appeal from the January 21, 2014 order denying her
motion for post-trial relief.

           ‘Generally, an appeal will only be permitted from a
           final order unless otherwise permitted by statute or
           rule of court.’    Johnston the Florist, Inc. v.
           TEDCO Constr. Corp., 441 Pa.Super. 281, 657 A.2d
           511, 514 (1995). An appeal from an order denying
           post-trial   motions    is   interlocutory.     Id.;
           Pa.R.A.P. 301(a), (c), and (d). An appeal to this
           Court can only lie from judgments entered
           subsequent to the trial court’s disposition of
           post-verdict motions, not from the order denying
           post-trial motions. Id.
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      The trial court has aptly summarized the facts of this matter as

follows:

                    Defendant owned an apartment building at
             2170 East Cambria Street, Philadelphia.            Plaintiff
             rented one of the apartments. On October 9, 2010,
             Plaintiff’s left leg fell through a soft spot in her dining
             room floor and she suffered injury to her left ankle
             as a result. At trial, Plaintiff alleged that she had
             alerted Defendant to this condition prior to her
             accident and that it was negligent in failing to repair
             it.   Defendant contended that Plaintiff had not
             provided any notice of the defect. The jury returned
             a verdict in favor of Defendant.

Trial court opinion, 11/4/14 at 2 (citations to the transcript omitted).

      Following a jury trial, the jury found that appellee Green Real Estate

was negligent, but that the negligence was not a factual cause of Gates’

injury.2   Post-trial motions were denied, and this timely appeal followed.

Gates complied with the trial court’s order to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b),

42 Pa.C.S.A., and the trial court has filed an opinion.

      Gates brings the following issues for this court’s review on appeal:

             1.    When a jury concludes that the defendant was
                   negligent, the issue of comparative negligence
                   is not presented to the jury, and the parties
                   agree that the plaintiff suffered an injury




Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 285
(Pa.Super. 2013). We have amended the caption accordingly.
2
 A motion for directed verdict was granted for the third-party defendant,
Morris General Contractor, LLC.


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                      related to the underlying claim, is the jury’s
                      finding that the defendant’s negligence was not
                      the factual cause of plaintiff’s injuries error
                      that warrants a new trial?

             2.       By failing to provide the jury with the complete
                      definition of “factual cause” charge in Pa. SSJI
                      (Civ) 13.20, does a trial court commit error
                      that warrants a new trial?

             3.       When a landlord fails to fulfill its duty to
                      inspect and repair defects at the location
                      where the plaintiff/tenant was injured, does a
                      trial court err by failing to instruct the jury on
                      the increased risk of harm?

Gates’s brief at 5.

      In her first issue on appeal, Gates argues that the jury’s verdict was

against the weight of the evidence where the parties agreed that Gates

suffered some injury as a result of her fall, including an ankle sprain.

Therefore, where the jury found that appellee was negligent, it could not

also find that appellee’s negligent conduct was not a factual cause of Gates’s

injuries.   This issue was not raised in Gates’s post-trial motion or in her

Rule 1925(b) statement and is being raised for the first time on appeal. As

such, it is deemed waived. See Estate of Hicks v. Dana Companies, LLC,

984 A.2d 943, 976 (Pa.Super. 2009) (en banc), appeal denied, 19 A.3d

1051 (Pa. 2011) (“In order to preserve issues for appellate review a party

must file post-trial motions from a trial court’s decision and order following

the conclusion of a trial.      Even when a litigant files post-trial motions but

fails to raise a certain issue, that issue is deemed waived for purposes of



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appellate review.” (quotation marks and citations omitted)); Cobbs v.

SEPTA, 985 A.2d 249, 256 (Pa.Super. 2009) (issue not included in

appellant’s statement of matters complained of on appeal was waived, citing

Pa.R.A.P. 1925(b)(4)(vii));       Southcentral    Employment          Corp.   v.

Birmingham Fire Ins. Co. of Pa., 926 A.2d 977, 983 n.5 (Pa.Super. 2007)

(holding that issue not raised in statement of matters complained of on

appeal is waived for purposes of appeal).

        In her second issue on appeal, Gates claims that the trial court failed

to give a complete instruction on factual causation to the jury.           Gates

complains that the trial court failed to give the charge on factual causation in

its entirety, as contained in the suggested standard jury instructions.3

              Our standard of review regarding jury instructions is
              limited to determining whether the trial court
              committed a clear abuse of discretion or error of law
              which controlled the outcome of the case.

                   Error in a charge is sufficient ground for
                   a new trial if the charge as a whole is
                   inadequate or not clear or has a
                   tendency to mislead or confuse rather
                   than clarify a material issue. A charge
                   will be found adequate unless the issues
                   are not made clear to the jury or the jury
                   was palpably misled by what the trial
                   judge said or unless there is an omission
                   in the charge which amounts to a
                   fundamental error. In reviewing a trial
                   court’s charge to the jury we must look
                   to the charge in its entirety.



3
    See Pa.SSJI (Civ.) § 13.20.


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Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1204 (Pa.Super.

2008), quoting Gorman v. Costello, 929 A.2d 1208, 1212 (Pa.Super.

2007), in turn citing Quinby v. Plumsteadville Family Practice, Inc., 907

A.2d 1061, 1069-1070 (Pa. 2006).

      “A trial court has wide discretion in phrasing jury instructions, and

absent an abuse of discretion or an inaccurate statement of law, there is no

reversible error.” Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1127

(Pa. 2000) (citation omitted).

            [T]he suggested standard jury instructions are not
            binding, even where a party requests a trial judge
            specifically to use them. ‘These instructions are
            guides only and the trial judge is free to deviate from
            them or ignore them entirely. What is important is
            whether the charge as a whole provides a sufficient
            and correct legal basis to guide a jury in its
            deliberations.’

City of Philadelphia v. Duda by Duda, 595 A.2d 206, 211-212

(Pa.Cmwlth. 1991), appeal denied, 615 A.2d 1314 (Pa. 1992), quoting

Mackowick v. Westinghouse Electric             Corp., 541     A.2d    749,   752

(Pa.Super. 1988) (en banc), affirmed, 575 A.2d 100 (Pa. 1990).

      The trial court instructed the jury on causation as follows:

                  The plaintiff must prove to you that the
            defendant’s conduct caused the plaintiff’s damages.
            This is referred to as factual cause. The question is
            was the defendant’s negligence -- let me start again.
            Was the defendant’s negligent conduct a factual
            cause in bringing about the plaintiff’s damages?
            Conduct is a factual cause of harm when the harm
            would not have occurred absent the conduct. An act



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            is a factual cause of an outcome if in the absence of
            the act, the outcome would not have occurred.

Notes of testimony, 10/17/13 at 17-18.

                   The plaintiff is entitled to recover damages for
            all injuries the defendant’s negligence was a factual
            cause in producing.        The defendant’s negligence
            need not be the sole cause of the injuries. Other
            causes may have contributed to producing the final
            result. The fact that some other factor may have
            been a contributing cause of an injury does not
            relieve the defendant of liability unless you find that
            such other cause would have produced the injury
            complained of independently of his negligence. Even
            though prior conditions or concurrent causes may
            have contributed to an injury, if the defendant’s
            negligence was a factual cause in producing the
            injury, the defendant is liable for the full amount of
            damages sustained without any apportionment or
            diminution for the other conditions or causes.

Id. at 25-26.

      Gates relies on Gorman, supra, where the trial court omitted a

complete definition of factual cause from its jury instructions. Gorman, 929

A.2d at 1213. A divided panel of this court determined that the trial court’s

omission of the definition amounted to a fundamental error requiring a new

trial. Id. Gorman is readily distinguishable where, in the case sub judice,

the trial court did give a complete and accurate instruction on factual cause.

The trial court need not recite from the standard jury instruction verbatim.

In addition, the fact that the trial court split its instruction on factual cause,

giving the instruction on concurrent causation later in the charge, does not

amount to fundamental error requiring a new trial. This claim fails.



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     Finally, Gates contends that the trial court erred in refusing to give the

jury an instruction on increased risk of harm. We disagree.

     The Restatement (Second) of Torts, Section 323, provides:

           § 323 Negligent Performance of Undertaking
           to Render Services

           One    who      undertakes,    gratuitously    or    for
           consideration, to render services to another which he
           should recognize as necessary for the protection of
           the other’s person or things, is subject to liability to
           the other for physical harm resulting from his failure
           to exercise reasonable care to perform his
           undertaking, if

           (a)   his failure to exercise such care increases
                 the risk of such harm, or

           (b)   the harm is suffered because of the
                 other’s reliance upon the undertaking.

     Thus, a landlord has an independent legal duty to exercise reasonable

care when he undertakes to render services for a tenant and repairs known

dangerous conditions on the leased premises. Reed v. Dupuis, 920 A.2d

861, 867 (Pa.Super. 2007). Here, however, Gates was required by the lease

to make any repair requests in writing. (Trial court opinion, 11/4/14 at 3.)

While Gates alleged that she told appellee about the soft spot on the dining

room floor and he promised to make repairs, there is no evidence that she

notified appellee in writing of the alleged defective or dangerous condition.

(Id. at 3-4.) Therefore, appellee had no duty to undertake repairs and the

increased risk of harm instruction was inapplicable to this case. (Id. at 4.)

Furthermore, as appellee states, Section 323 goes to negligence, not


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damages. (Appellee’s brief at 25-26.) The jury found appellee negligent in

this case. Therefore, Gates cannot show how she was prejudiced by the trial

court’s refusal to instruct the jury on increased risk of harm.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2015




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