J-A05038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DARLENE MCCAFFERTY AND RICHARD                 IN THE SUPERIOR COURT OF
MCCAFFERTY, HUSBAND AND WIFE,                        PENNSYLVANIA

                            Appellees

                       v.

SEVEN OAKS COUNTRY CLUB, INC.,

                            Appellant              No. 1103 WDA 2016


              Appeal from the Judgment Entered August 22, 2016
                In the Court of Common Pleas of Beaver County
                       Civil Division at No(s): 10313-2015


BEFORE: BENDER, P.J.E., SHOGAN, J. and MOULTON, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED MAY 23, 2017

       Appellant, Seven Oaks Country Club, Inc. (referred to herein as

“Seven Oaks”), appeals from the judgment entered on August 22, 2016, in

favor of Appellees, Darlene and Richard McCafferty, in this negligence action

that arose when Mrs. McCafferty was injured as a result of a fall on a

stairway on Seven Oaks’ premises.1 We affirm.


____________________________________________


1
  Seven Oaks appealed from the order denying its post-trial motions on July
1, 2016. An order denying post-trial motions is interlocutory and generally
not appealable. See Levitt v. Patrick, 976 A.2d 581, 584 n.2 (Pa. Super.
2009) (stating that appeal properly lies from the entry of judgment, not
from order denying post-trial motions). However, since judgment was
entered on August 22, 2016, we consider the appeal as taken from the entry
of judgment. See Johnston the Florist, Inc. v. TEDCO Const. Corp., 657
A.2d 511, 514-15 (Pa. Super. 1995) (stating that appellate courts may
“regard as done that which ought to have been done”) (citations omitted).
J-A05038-17



        We briefly summarize the factual background and procedural history of

this case. On October 25, 2014, Mrs. McCafferty “started down the stairway

in question” at the country club and “had her hand on the rail.” See Trial

Court Opinion (TCO), 7/1/2016, at 9.           “At some point in her descent, she

began to lose her balance and put her hand on the rail again, but was unable

to put her fingers around the rail. She then fell down the stairs into a wall.”

Id. According to Mr. and Mrs. McCafferty, the rail at issue was “comprised

of a board measuring 1 5/8 inches by 5 5/8 inches, mounted by metal

balusters affixed to the side, and reaching 1 7/8 inches from the top of the

rail.” McCaffertys’ Brief at 6 (citation to record omitted). 2 As a result of her

fall, Mrs. McCafferty “was rendered unconscious” and “suffered a gruesome,

‘chandelier’ break of the joints in her foot that facilitate movement of the

foot.   Both of her ankle joints are permanently fused, so that she cannot

move her foot up and down or side to side.” TCO at 18. Subsequently, on

March 17, 2015, the McCaffertys filed this negligence action against Seven

Oaks, alleging that Ms. McCafferty was injured because the stairs lacked a

graspable handrail. See McCaffertys’ Brief at 3 (citations to record omitted).

____________________________________________


2
  See also Seven Oaks’ Brief at 10-11 (acknowledging that the McCaffertys
“presented the expert testimony of Robert T. Stevens, Jr., a registered
architect. Mr. Stevens testified the stairway at issue is equipped with a
‘railing guard on the left-hand side’ which consists of a 1 5/8” x 5 5/8” inch
board that slopes parallel with the stair. The ‘board’ is supported by 1-inch
square steel balusters that are screwed into the side of the board down from
the top of the board approximately 1 7/8”.”) (citations to record omitted).



                                           -2-
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       On February 5, 2016, a non-jury trial took place. On March 4, 2016,

in its non-jury decision, the trial court found in favor of Mrs. McCafferty and

against Seven Oaks in the amount of $427,382.91.3 Additionally, the trial

court awarded $50,000.00 to Mr. McCafferty for his loss of consortium claim.

Seven Oaks subsequently filed a timely notice of appeal and a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b).

       On appeal, Seven Oaks raises the following issues for review:
           1. Is [Seven Oaks] entitled to a new trial because the trial
              court did not disclose she was a former employee of [the
              McCaffertys’] counsel’s law firm, or any other relationship
              between the court and [the McCaffertys’] counsel’s law
              firm, or [the McCaffertys’] counsel, prior to the February 5,
              2016 non-jury trial?

           2. Was Seven Oaks entitled to a compulsory nonsuit and/or
              was Seven Oaks entitled to judgment notwithstanding the
              verdict because [the McCaffertys] failed to establish
              [Seven Oaks] violated a duty owed to [the McCaffertys]?

           3. Was Seven Oaks entitled to a compulsory nonsuit and/or
              was Seven Oaks entitled to judgment notwithstanding the
              verdict because [the McCaffertys] failed to establish the
              alleged defective handrail caused Mrs. McCafferty’s fall and
              subsequent injuries?

           4. Is Seven Oaks entitled to a new trial because the trial
              court prohibited expert testimony during the non-jury trial
              regarding the applicability of building codes to the Seven
              Oaks Country Club clubhouse and the stairway upon which
              Mrs. McCafferty fell on October 25, 2014?

____________________________________________


3
  Specifically, Mrs. McCafferty was awarded $27,382.91 in economic losses
and $400,000.00 in non-economic losses.



                                           -3-
J-A05038-17


            5. Is Seven Oaks entitled to a new trial because the trial
               court ruled certain sections of the 2009 International Fire
               Code applied to the stairway upon which Mrs. McCafferty
               fell on October 25, 2014?

            6. Is Seven Oaks entitled to judgment notwithstanding the
               verdict because, based on the testimony and evidence
               presented during the February 5, 2016 non-jury trial, the
               trial court’s verdict was against the weight of the
               evidence?

Seven Oaks’ Brief at 4-5.

       First, we consider whether “Seven Oaks is entitled to a new trial

because the trial court failed to disclose a prior employment relationship

between the court and [the McCaffertys’] counsel’s law firm, or any other

relationship between the court and [the McCaffertys’] counsel’s law firm, or

[the McCaffertys’] trial counsel, prior to the non-jury trial.”       Seven Oaks’

Brief at 17 (emphasis omitted). Seven Oaks asserts that “[a]fter receiving

the court’s non-jury verdict, which included a non-economic award identical

to   [the    McCaffertys’]    pre-trial   demand,   [Seven   Oaks]   discovered   a

newspaper article purportedly published by the Beaver County Times on May

12, 2005[,] which asserts the trial court had been an employee of [the

McCaffertys’ counsel’s law firm] for a period of 10 years immediately prior to

her election to the Court of Common Pleas of Beaver County.” Id. (citations

to record omitted).4         Seven Oaks insists that a new trial is warranted
____________________________________________


4
 The trial court elaborates on her prior employment with the McCaffertys’
counsel’s law firm, explaining:
       As a lawyer, the judge was affiliated with [with the McCaffertys’
       counsel’s law firm] … in various capacities from 1996 through
(Footnote Continued Next Page)


                                           -4-
J-A05038-17



because “[i]n the context of a non-jury trial, the failure by the trial court to

disclose the aforementioned information, or, in the alternative, sua sponte

recuse herself, clouds the entire matter with the appearance of impropriety.”

Id. at 13. We disagree.
                       _______________________
(Footnote Continued)

      2005. Initially, the judge was employed full-time by the firm for
      18 months, from January 1996 through June 1997. She was
      employed part-time by the firm for about three years, from July
      1997 through approximately 2000. For the next five years, from
      2000-2005, she was an independent contractor at the law firm,
      and was paid on a 1099 basis, only on those matters that she
      brought to the firm. She was never a partner in the law firm.

      In addition to her private practice affiliation with the law firm, for
      seven years, from June 1998 through 2005, the judge was also
      employed part-time as the Beaver County Solicitor, and
      maintained an office at the Beaver County Courthouse.

      This information was readily available to any attorney and is well
      known by all lawyers who practice in Beaver County. A simple
      internet search, as [Seven Oaks’] [c]ounsel did following the
      trial, would have disclosed the information.

      The judge never considered the need to disclose her prior
      employment, because at the time of the non-jury trial in this
      matter, she had been away from the law firm for a longer time
      period than she had worked at the law firm.             Her prior
      employment was common knowledge in the County.
      Additionally, the other judges who routinely hear civil matters …
      were members of Seven Oaks Country Club and were unable to
      hear this case.

TCO at 1-2. While Seven Oaks claims that “[t]he failure by the trial court to
disclose this information … does not keep up with the ‘norm of conduct’ of
the judiciary set forth in the Code of Judicial Conduct[,]” it also
acknowledges that “the Rules of Judicial Conduct do not impose substantive
legal duties on Judges within the Commonwealth nor do they give standing
to others, including the Superior Court, to seek compliance with the Rules.”
See Seven Oaks’ Brief at 19, 21 (citation omitted).



                                            -5-
J-A05038-17



     In general, our Supreme Court has explained:
     It is incumbent upon the proponent of a disqualification motion
     to allege facts tending to show bias, interest or other
     disqualifying events, and it is the duty of the judge to decide
     whether he feels he can hear and dispose of the case fairly and
     without prejudice because we recognize that our judges are
     honorable, fair and competent. Once this decision is made, it is
     final and the cause must proceed. The propriety of this decision
     is grounded in abuse of discretion and is preserved as any other
     assignment of error, should the objecting party find it necessary
     to appeal following the conclusion of the cause.

     If the cause is appealed, the record is before the appellate court
     which can determine whether a fair and impartial trial were had.
     If so, the alleged disqualifying factors of the trial judge become
     moot.

Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 489

A.2d 1291, 1300 (Pa. 1985) (emphasis in original).

     However, when a party seeks recusal of a judge “for the first time

after verdict, in post-trial motions or in arguments and briefs before the

appellate courts, different considerations come into play.”    Id. at 1301.

Specifically, our Supreme Court has observed:
     Charges of prejudice or unfairness made after trial expose the
     trial bench to ridicule and litigants to the uncertain collateral
     attack of adjudications upon which they have placed their
     reliance. One of the strengths of our system of justice is that
     once decisions are made by our tribunals, they are left
     undisturbed. Litigants are given their opportunity to present
     their cause and once that opportunity has passed, we are loathe
     to reopen the controversy for another airing, save for the
     greatest of need. This must be so for the security of the bench
     and the successful administration of justice. Accordingly, rules
     have developed for the overturning of verdicts and judgments
     for after-acquired evidence. In our view, recusal motions
     raised after verdict should be treated no differently than
     other after-acquired evidence situations which compel the
     proponent to show that: 1) the evidence could not have

                                   -6-
J-A05038-17


      been brought to the attention of the trial court in the
      exercise of due diligence, and 2) the existence of the
      evidence would have compelled a different result in the
      case.

Id. (emphasis added).

      With respect to this first factor, regarding whether the evidence could

not have been brought to the attention of the court in the exercise of due

diligence, Seven Oaks contends that “a review of the trial court’s

biographical website on the Beaver County Court of Common Pleas website

reveals no association with [the McCaffertys’ counsel’s firm].” Seven Oaks’

Brief at 26 (footnote omitted).     Additionally, Seven Oaks claims that “two

separate conferences with the trial court prior to the non-jury trial did not

include any disclosure by the trial court or [the McCaffertys’] counsel

pertaining to the former association, despite the fact two other judges of the

Court of Common Pleas of Beaver County could not hear the case because of

their association with Seven Oaks.”      Id.   As to the second factor, Seven

Oaks suggests that evidence of the trial court’s association with the

McCaffertys’ counsel’s firm would have compelled a different result in the

case because “this case proceeded to a non-jury trial” and “there was no

additional protection of the integrity of the fact-finding process in this matter

because there was no jury.” Id. at 27.

      In response to Seven Oaks’ request for a new trial on this basis, the

trial court reasonably explained:
      [Seven Oaks] relies on a newspaper article that it searched for
      after the trial to state that it has ‘after discovered evidence’ of
      the court’s former relationship with the law firm. There has been

                                      -7-
J-A05038-17


       no suggestion that this article was not readily available to
       [Seven Oaks’] [c]ounsel in the exercise of due diligence prior to
       the trial. Thus, any failure on the court’s part to disclose her
       prior relationship with the firm[] could have been resolved if
       [Seven Oaks’] [c]ounsel had conducted due diligence on the
       judge prior to the trial. Unlike in S[l]usser [v. Laputka,
       Bayless, Ecker and Cohn, P.C., 9 A.3d 1200 (Pa. Super.
       2010)], the [c]ourt did not intentionally hide her relationship
       with the law firm. In fact, she assumed counsel was aware of
       the relationship, as it is well known throughout the local bar
       association. Moreover, nothing indicates that there would have
       been a different result in this case. [Seven Oaks] never alleged,
       prior to or during the trial, that the judge was unfair or biased.
       Only after [Seven Oaks] got a decision it did not like, [did Seven
       Oaks] claim[] foul play on the part of the judge. To grant
       [Seven Oaks] a jury trial under these facts would give it a
       second chance to get a more favorable decision, solely because
       it did not like the result of the non-jury trial.

TCO at 6-7. Based on the foregoing, we agree that Seven Oaks has failed to

show that the evidence could not have been brought to the attention of the

trial court in the exercise of due diligence, and that the existence of the

evidence would have compelled a different result in this case. Accordingly, a

new trial is not warranted.5

____________________________________________


5
   We note that Seven Oaks also argues that “[t]he appearance of
impropriety present in this case is sufficient to grant a new trial before
another judge.” Seven Oaks’ Brief at 22 (emphasis omitted). However,
“because the trial court judge has no financial connection to the
[McCaffertys’ counsel’s] law firm, her prior affiliation with the firm was well-
known, and she has been away from the firm for more than ten years[,]” we
also reject this argument. See TCO at 4-5, 5-6. As the trial court and the
McCaffertys discern, the facts of this case are much different than other
cases where an appearance of impropriety has been found to warrant a new
trial. See TCO at 3-6 (citing Joseph v. The Scranton Times, L.P., 987
A.2d 633 (Pa. 2009), and Slusser, supra); McCaffertys’ Brief at 19 (citing
the above cases and In Interest of McFall, 617 A.2d 707 (Pa. 1992)).



                                           -8-
J-A05038-17



      Second, Seven Oaks argues that it “was entitled to compulsory nonsuit

during the non-jury trial and is further entitled to judgment notwithstanding

the verdict because [the McCaffertys] failed to establish [Seven Oaks]

violated a duty owed to [them].”       Seven Oaks’ Brief at 29 (emphasis

omitted). Seven Oaks asserts that it “cannot find any appellate law which

stands for the proposition a rectangular handrail of dimensions similar to the

handrail present within Seven Oaks creates a ‘dangerous condition’ as

suggested by [the McCaffertys’ expert,]” and it points out that Mrs.

McCafferty “had … utilized the handrail without any issues pertaining to an

inability to grasp the handrail in the past, and during her initial descent on

October 25, 2014.” Id. at 31, 33 (footnote omitted).

      Initially, we note that Seven Oaks’ claim that the trial court should

have granted its motion for compulsory nonsuit is moot; instead, we

consider Seven Oaks’ argument regarding duty in the context of whether it

is entitled to judgment notwithstanding the verdict.      See Whitaker v.

Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 517 (Pa. Super.

2009) (explaining that “[o]nce a jury verdict in favor of [the a]ppellees was

entered, the issue became whether the trial court erred in failing to grant

them judgment notwithstanding the verdict”) (citations omitted). We apply

the following standard of review:
      A JNOV can be entered upon two bases: (1) where the movant is
      entitled to judgment as a matter of law; and/or, (2) the evidence
      was such that no two reasonable minds could disagree that the
      verdict should have been rendered for the movant.           When
      reviewing a trial court’s denial of a motion for JNOV, we must

                                    -9-
J-A05038-17


     consider all of the evidence admitted to decide if there was
     sufficient competent evidence to sustain the verdict. In so
     doing, we must also view this evidence in the light most
     favorable to the verdict winner, giving the victorious party the
     benefit of every reasonable inference arising from the evidence
     and rejecting all unfavorable testimony and inference.
     Concerning any questions of law, our scope of review is plenary.
     Concerning questions of credibility and weight accorded the
     evidence at trial, we will not substitute our judgment for that of
     the finder of fact. If any basis exists upon which the court could
     have properly made its award, then we must affirm the trial
     court’s denial of the motion for JNOV. A JNOV should be entered
     only in a clear case.

Brown v. Trinidad, 111 A.3d 765, 769-70 (Pa. Super. 2015) (citations

omitted).

     In the case sub judice, the trial court determined that Seven Oaks

violated a duty owed to Mrs. McCafferty under the Restatement (Second) of

Torts § 343. See TCO at 7-8. This section states:
     A possessor of land is subject to liability for physical harm
     caused to his invitees by a condition on the land if, but only if,
     he

        (a) knows or by the exercise of reasonable care would
        discover the condition, and should realize that it involves
        an unreasonable risk of harm to such invitees, and

        (b) should expect that they will not discover or realize the
        danger, or will fail to protect themselves against it, and

        (c) fails to exercise reasonable care to protect them
        against the danger.

Restatement (Second) of Torts § 343.

     In concluding that Seven Oaks violated this duty, the trial court

reasoned:
     [Seven Oaks] argues that it did not have actual or constructive
     notice of the dangerous condition which led to Mrs. McCafferty’s
     fall. As the finder of fact, the [c]ourt disagrees. The country

                                   - 10 -
J-A05038-17


     club was constructed in 1978, and contained the stairway and
     handrail in question[.] However, a subsequent renovation to the
     building in 1990 involved two other stairways where a true,
     graspable[] handrail was installed for safe passageway on the
     stairs. While it may not have been aware of certain architectural
     standards, [Seven Oaks] should have known, at least after the
     renovations, that the handrail in question was different and
     potentially unsafe. We do not suggest that [Seven Oaks] had a
     duty to bring the existing building into compliance with newer
     Building Codes. But, Seven Oaks had a continuing duty to
     inspect and discover the dangerous condition. According to [the
     McCaffertys’] expert, the handrail never complied with industry
     standards of safety. Even a casual inspection of the handrail
     would have revealed that it could not be grasped for safety. The
     fact that it could not be grasped presented a foreseeable risk of
     harm that Seven Oaks had a duty to discover and remedy. See,
     e.g.[,] Kirschbaum v. WROSB Assoc. d/b/a GSB Building,
     et al., 243 F.3d 145 (3d Cir. 2001) (where court found a 5/8
     inch riser height defect on stairway created a foreseeable risk of
     falling, the landowner was required to discover and remedy the
     discrepancy).

TCO at 8-9.

     Thus, viewing the evidence in the light most favorable to the

McCaffertys as verdict winners, we conclude that they proffered sufficient

competent evidence to establish that Seven Oaks violated a duty owed to

them under the Restatement (Second) of Torts § 343. In its above analysis,

the trial court provides a basis for determining that Seven Oaks should have

known that the ungraspable handrail was dangerous and that it presented a

“foreseeable risk of harm” to invitees like Mrs. McCafferty. Id. See Brown,

111 A.3d at 769-70 (“If any basis exists upon which the court could have

properly made its award, then we must affirm the trial court’s denial of the

motion for JNOV.     A JNOV should be entered only in a clear case.”).




                                   - 11 -
J-A05038-17



Accordingly, Seven Oaks is not entitled to judgment notwithstanding the

verdict on this ground.

      Third, Seven Oaks asserts that it “was entitled to compulsory nonsuit

during the non-jury trial and is further entitled to judgment notwithstanding

the verdict because [the McCaffertys] failed to establish causation with

respect to Mrs. McCafferty’s fall and injuries.”    Seven Oaks’ Brief at 34

(emphasis omitted).       More specifically, Seven Oaks contends that the

McCaffertys “had the burden of demonstrating the handrail’s shape created a

dangerous condition which was the proximate cause of Mrs. McCafferty’s

fall[,]” and because “a mere possibility of causation is not enough,” the trial

court should have granted Seven Oaks’ motion for compulsory nonsuit. Id.

at 42.   Further, according to Seven Oaks, it “was entitled to judgment

notwithstanding the verdict for [the McCaffertys’] failure to prove causation.”

Id.

      Like the previous issue, Seven Oaks’ claim regarding whether it was

entitled to a compulsory nonsuit on this basis is moot. See Whitaker, 984

A.2d at 517.    Rather, we consider whether it was entitled to judgment

notwithstanding the verdict due to the McCaffertys’ purported failure to

establish causation.

      “Proximate causation is defined as a wrongful act which was a

substantial factor in bringing about the plaintiff’s harm.   Proximate cause

does not exist where the causal chain of events resulting in [the] plaintiff’s

injury is so remote as to appear highly extraordinary that the conduct could

                                    - 12 -
J-A05038-17



have brought about the harm.” Lux v. Gerald E. Ort Trucking, Inc., 887

A.2d 1281, 1286-87 (Pa. Super. 2005) (citations omitted). This Court has

explained:
      In order to establish causation, the plaintiff must prove that the
      breach was “both the proximate and actual cause of the injury.”
      Proximate cause is a question of law to be determined by the
      court before the issue of actual cause may be put to the jury. A
      determination of legal causation, essentially regards “whether
      the negligence, if any, was so remote that as a matter of law,
      [the actor] cannot be held legally responsible for [the] harm
      which subsequently occurred.”        Therefore, the court must
      determine whether the injury would have been foreseen by an
      ordinary person as the natural and probable outcome of the act
      complained of.

Id. at 1287 (citation omitted; brackets in original).

      Here, the trial court summarized the testimony of Mrs. McCafferty at

trial as follows:
      Mrs. McCafferty[] testified at trial that as she started down the
      stairway in question, she had her hand on the rail. At some
      point in her descent, she began to lose her balance and put her
      hand on the rail again, but was unable to put her fingers around
      the rail. She then fell down the stairs into a wall. On cross
      examination, Mrs. McCafferty testified that she could not
      remember whether or not her hand was on the rail while she was
      walking, but that she did grab for the handrail and was unable to
      grasp it despite getting her hand to it immediately before she fell
      down the stairs.

TCO at 9.

      In light of this testimony, the trial court found that proximate cause

existed, reasoning:
      In all of [the] cases [relied on by Seven Oaks], individuals
      reached out for handrails that did not exist after having already
      fallen. None of the cases [Seven Oaks] relies upon involve faulty
      handrails that contributed to the plaintiff’s fall. In the instant


                                     - 13 -
J-A05038-17


     case, [Mrs. McCaffferty] began to lose her balance, and
     attempted to grasp the existing handrail. Her inability to grasp
     the defective handrail then precipitated the fall which [led] to
     her injuries.

     [The McCaffertys] rely on the more factually analogous case of
     Schaff v. Meltzer, [114 A.2d 167 (Pa. 1955),] involving a fall at
     least partially caused by a faulty rail. [] In that case, Mr. Schaff
     began descending a set of stairs, turned to go back, tripped over
     an unlevel floor board, and began to fall. Id. at 168. Mr. Schaff
     then attempted to grasp the handrail, but the handrail pulled out
     of the wall, sending Mr. Schaff down the flight of stairs. Id. The
     Pennsylvania Supreme Court noted in its opinion that[,] “If
     anyone of these conditions were proved by the plaintiff to have
     been the proximate cause of the accident, or, if all of these
     conditions together made out a case of prima facie negligence,
     he was entitled to have his case go to the jury.” Id.

     In the instant case, [Seven Oaks] contends that Mrs. McCafferty
     fell due to losing her own balance, and not because of any defect
     in [Seven Oaks’] property.         However, like in Schaff, Mrs.
     McCafferty began to lose her balance and reached for the
     handrail. The inability to grasp a defective handrail due to its
     faulty design is certainly, while perhaps not as extreme, closer to
     grabbing a rail that pulls out of a wall than it is to not being able
     to find a rail that does not exist in the midst of a fall. And even
     if [Mrs. McCafferty’s] fall was not initiated by any other defective
     condition on the stairway, her attempt to grasp the faulty
     railway alone is enough to take the issue of liability to the
     factfinder. See[] Schaff, 114 A.2d 168.

     In the cases cited by [Seven Oaks], the absence of a rail did not
     cause the falls, but instead, only prevented the falling individuals
     from arresting their falls once the falls had begun. In the instant
     case, like in Schaff, Mrs. McCafferty began to lose her balance,
     attempted to grasp the rail, and the inability to grasp the rail
     securely [led] to her fall. The faulty handrail was not just unable
     to prevent [Mrs. McCafferty] from arresting her fall; [its]
     defectiveness, combined with her momentum toward it and
     reliance on its functionality, propelled her forward, and was, in
     fact, a proximate cause of her fall.

TCO at 12-14.




                                    - 14 -
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      Again, viewing the evidence in the light most favorable to the

McCaffertys as verdict winners, we conclude that there was sufficient

competent evidence to establish proximate cause in this case. See Brown,

111 A.3d at 769-70. The ungraspable handrail was not so “remote” that as

a matter of law, Seven Oaks “cannot be held legally responsible” for Mrs.

McCafferty’s injuries.   See Lux, 887 A.2d at 1287.       Put differently, an

individual falling down a stairway could be foreseen by an ordinary person as

the natural and probable outcome of having an ungraspable handrail. See

id.   Moreover, the evidence in this case was not such that “no two

reasonable minds could disagree that the verdict should have been rendered

for” Seven Oaks. Brown, 111 A.3d at 769-70. As such, Seven Oaks is not

entitled to judgment notwithstanding the verdict on this basis.

      In Seven Oaks’ fourth and fifth issues on appeal, it argues that it is

entitled to a new trial because the trial court erred in its pre-trial ruling

“prohibiting expert testimony regarding the applicability of building codes to

the … clubhouse and the stairway[,]” and in “finding certain sections of the

2009 International Fire Code applied to the stairway[.]” Seven Oaks’ Brief

at 43, 45 (emphasis omitted). In advancing these arguments though, Seven

Oaks acknowledges that the trial court does not appear to find that Seven

Oaks “violated any particular building code or relied on building code

definitions or standards” in its opinion and therefore maintains this argument

on appeal only “out of an abundance of caution.” Id. at 43 n.16. See also

id. at 29, 48. We agree with Seven Oaks that the trial court found Seven

                                    - 15 -
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Oaks liable under a general negligence theory only, and did not conclude

that it violated any particular building codes.   Id. at 29.   As such, these

issues are moot, and we need not address them herein.

     Finally, Seven Oaks claims that “the trial court’s verdict was against

the weight of the evidence.” Id. at 49 (emphasis omitted). In support of its

argument, it merely reiterates that the McCaffertys failed to prove that

Seven Oaks breached a duty owed to Mrs. McCafferty and failed to prove the

shape of the handrail at issue was a proximate cause of her fall. Id.

     When a party challenges the weight of the evidence, we apply the

following standard of review:
        Appellate review of a weight claim is a review of the trial
        court’s exercise of discretion, not of the underlying
        question of whether the verdict is against the weight of the
        evidence. Because the trial judge has had the opportunity
        to hear and see the evidence presented, an appellate court
        will give the gravest consideration to the findings and
        reasons advanced by the trial judge when reviewing a trial
        court’s determination that the verdict is against the weight
        of the evidence. One of the least assailable reasons for
        granting or denying a new trial is the lower court’s
        conviction that the verdict was or was not against the
        weight of the evidence and that a new trial should be
        granted in the interest of justice.

     In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013)
     (citing Commonwealth v. Clay[,] … 64 A.3d 1049, 1055 (Pa.
     2013)). “The factfinder is free to believe all, part, or none of the
     evidence and to determine the credibility of the witnesses.”
     Samuel–Bassett v. Kia Motors Am., Inc.[,] … 34 A.3d 1, 39
     (Pa. 2011).       “The trial court may award a judgment
     notwithstanding the verdict or a new trial only when the jury’s
     verdict is so contrary to the evidence as to shock one’s sense of
     justice. In determining whether this standard has been met,
     appellate review is limited to whether the trial judge’s discretion
     was properly exercised, and relief will only be granted where the

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     facts and inferences of record disclose a palpable abuse of
     discretion.” Id. (citing Commonwealth v. Cousar[,] … 928
     A.2d 1025, 1035–36 (Pa. 2007)). When a fact finder’s verdict is
     “so opposed to the demonstrative facts that looking at the
     verdict, the mind stands baffled, the intellect searches in vain for
     cause and effect, and reason rebels against the bizarre and
     erratic conclusion, it can be said that the verdict is shocking.”
     Farelli v. Marko[,] … 502 A.2d 1293, 1295 (Pa. Super. 1985)
     (quoting Green v. Johnson[,] … 227 A.2d 644, 645 (Pa.
     1967)).

Brown, 111 A.3d at 770 (citation, footnote, and brackets in original

omitted).

     Here, based on our review of the record, we do not deem the verdict

to be “so contrary to the evidence as to shock one’s sense of justice.” Id.

For the reasons already addressed above, the trial court did not palpably

abuse its discretion in finding that Seven Oaks violated a duty owed to Ms.

McCafferty and that the ungraspable handrail was the proximate cause of

her fall. As such, the verdict in this case was not against the weight of the

evidence.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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