J-A03021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOANN BABBISH                                     IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

PIXIE PARADISE CHILD CARE CENTER
D/B/A PIXIE PARADISE EARLY
LEARNING CENTER AND DEBORAH
RIZZO

                          Appellants                  No. 515 MDA 2019


              Appeal from the Judgment Entered March 21, 2019
               In the Court of Common Pleas of Luzerne County
                       Civil Division at No: 2016-00518


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.:                  FILED:MAY 11, 2020

      Appellants, Pixie Paradise Child Care Center (“Child Care Center”) and

Deborah Rizzo (“Rizzo”) (collectively “Appellants”), appeal from the judgment

entered on March 21, 2019 in the Court of Common Pleas of Luzerne County

after a jury returned an $800,000 verdict in this slip and fall case in favor of

Appellee, Joann Babbish (“Babbish”). The Child Care Center asserts trial court

error for failure to deliver various jury instructions, including assumption of

risk and choice of ways instructions, and for delegating to the jury a question

of law regarding a duty owed to Babbish by the Child Care Center. Following

review, we affirm.
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       Our review of the record discloses that Babbish and her husband arrived

at the Child Care Center at approximately 3 p.m. on February 4, 2014 to pick

up their grandson. Her husband pulled into an on-street parking spot in front

of the Child Care Center. Snow had fallen the day before and, on the morning

of February 4, Rizzo cleared parts of the paved area in front of the building.

She also cleared a path from the main entrance to the street where the

Babbishes were parked, along with two additional paths from side exits of the

building. As the trial court stated, “Rizzo deposited the cleared snow onto the

uncleared sections atop the paved surface between the building and the roads

abutting [Appellants’] property.”         Trial Court Opinion, 7/1/19, at 2 (some

capitalization omitted).1

       Babbish got out of the car and stepped over accumulations of snow

deposited by Rizzo on an unshoveled part of the paved surface.               She

proceeded without incident into the building, retrieved her grandson and his

diaper bag, and began her return to the car along the same route she took on

her way in. As she approached the car, she slipped and fell, sustaining injuries

that included a fractured ankle and back injuries.




____________________________________________


1 The “paved surface” was an area that measured approximately seven and a
half feet in width and ran the length of the building from the building itself to
the street. There was no grass or other landscaping between the building and
the street. Rizzo shoveled approximately one-half of the seven and a half foot
wide paved surface, as well as the paths from the entrance to the street and
from the side exits of the building.

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      Babbish filed suit against Appellants alleging negligence. Following trial,

a jury awarded her $800,000, subject to a finding of 20% comparative

negligence on her part. The trial court molded the verdict to an award of

$640,000.    Appellants filed motions seeking remittitur, a new trial, and

judgment notwithstanding the verdict. Following argument, the court denied

all three motions by order entered on February 28, 2019. On March 20, 2019,

the trial court added delay damages of $56,473.42 to the verdict, which was

reduced to judgment on March 21, 2019. This timely appeal followed. Both

Appellants and the trial court complied with Pa.R.A.P. 1925.

      Appellants ask us to consider four issues, which we have reordered for

ease of discussion as follows:

      1. Did the trial court commit prejudicial error and/or abuse its
         discretion in refusing to instruct the jury on the doctrine of
         “Assumption of Risk” or even consider the doctrine’s
         applicability to the facts of the case?

      2. Did the trial court err when it refused to instruct the jury as to
         the law concerning the “Choice of Ways” doctrine as requested
         by [Appellants] in their Proposed Point for Charge #24?

      3. Did the trial court err in failing to instruct the jury as to
         [Appellants’] requested Point for Charge #20 as well as
         Supplemental Points for Charge #2, #3, #4, #5, #6 and #7,
         when such Points would have clarified [Appellants’] and
         [Babbish’s] responsibilities regarding ice and snow?

      4. Where [Rizzo] cleared a path from snow in front of her property
         for the entire length of the building and further cleared three
         entrances from the street to the sidewalk, did the trial court err
         in instructing the jury to determine whether [Rizzo] had a duty
         to clear the entire area alongside the building from snow?

Appellants’ Brief at 5.

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      Each of Appellants’ issues asserts error or abuse of discretion with

respect to jury instructions. As such,

      [o]ur standard of review . . . 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 occurs
      when the charge as a whole is inadequate or not clear or has a
      tendency to mislead or confuse rather than clarify a material
      issue. Conversely, a jury instruction will be upheld if it accurately
      reflects the law and is sufficient to guide the jury in its
      deliberations.

      The proper test is not whether certain portions or isolated excerpts
      taken out of context appear erroneous. We look to the charge in
      its entirety, against the background of the evidence in the
      particular case, to determine whether or not error was committed
      and whether that error was prejudicial to the complaining party.
      In other words, there is no right to have any particular form of
      instruction given; it is enough that the charge clearly and
      accurately explains the relevant law.

Pledger by Pledger v. Jannsen Pharmaceuticals, Inc., 198 A.3d 1126,

1146 (Pa. Super. 2018) (quoting James v. Albert Einstein Med. Ctr., 170

A.3d 1156, 1163-64 (Pa. Super. 2017) (additional citation omitted)).

      As reflected in the above excerpt, we are to consider the court’s charge

in its entirety. For context, we shall outline each of Appellants’ jury instruction

issues, beginning with the specific jury instructions addressed in their first

through third issues.

      Appellants first assert the trial court abused its discretion by refusing to

deliver an assumption of risk instruction, but acknowledge there is no longer

a suggested jury instruction for the doctrine. While assumption of the risk

has not been formally abolished by our Supreme Court, this Court has

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acknowledged that it has fallen into disfavor, “as evidenced by our [S]upreme

[C]ourt’s two . . . attempts to abolish or limit it.” Staub v. Toy Factory,

Inc., 749 A.2d 522, 528 (Pa. Super. 2000) (en banc) (citing Howell v. Clyde,

620 A.2d 1107 (Pa. 1993) (plurality), and Rutter v. Northeastern Beaver

County School District, 437 A.2d 1198 (Pa. 1981) (plurality)). Moreover,

as our Supreme Court observed in Howell, “[T]he complexity of analysis in

assumption of risk cases makes it extremely difficult to instruct juries.”

Howell, 620 A.2d at 1108 (citing Rutter, supra).

       Here, in rejecting Appellants’ request for an assumption of risk charge,

the trial court explained, “I’ve re-read assumption of risk. And I think it’s—

noting your objection, I think it’s way too confusing.      I think comparative

negligence takes care of all you need in that. I’ll note your objection, that

you’ve asked for that charge.           But I’m just going to keep comparative

negligence in.” Notes of Testimony, Trial, 10/25/18, ay 271-72. Appellants’

counsel informed the court that his closing argument included reference to

assumption of risk. Id. at 272.2 The court replied,


____________________________________________


2 Appellants’ counsel argued assumption of risk to the jury in his closing,
noting:

       The doctrine of assumption of the risk or what we call the common
       assumption of the risk is a common sense approach to how people
       behave. And this concept states that where a person confronts a
       known risk and voluntarily assumes that risk, they cannot recover
       it they are injured by that risk, that known risk.

Notes of Testimony, Trial, 10/25/18, at 297.

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      You can—I think it’s correct law. I just don’t think that I’ll charge
      on it. . . . Whether somebody should or should not—knows
      whether or not they should walk through snow and that that’s an
      issue, it’s fair game. But I agree with [Appellee’s counsel] that I
      think that’s confusing, to put in the assumption of risk. And really,
      I think we agree that comparative negligence takes case of it,
      correct?

Id. Appellants’ counsel responded, “We, of course, would like to have both.”

Id.

      In its charge, the trial court explained negligence principles and

instructed that the jury must decide whether Rizzo was negligent. Id. at 345.

The court then noted that Rizzo claimed Babbish’s own negligence was a

factual cause of her injury and instructed that Rizzo had the burden to prove

Babbish was negligent and that her negligence was a factual cause of her

injury. Id. The court went on to indicate that the jury must determine each

party’s share of negligence; that Babbish could not recover if her percentage

of negligence is greater than 50%; that she could recover if her negligence

was less than or equal to Rizzo’s; and that the jury was not to consider the

percentages of negligence when deciding damages. Id. at 345-46.

      Appellants next argue the trial court erred by refusing to charge the jury

on choice of ways. In Mirabel v. Morales, 57 A.3d 144 (Pa. Super. 2012),

this Court explained:

      The “choice of ways” doctrine still exists in Pennsylvania despite
      the substitution of comparative negligence for contributory
      negligence. See Updyke v. BP Oil Co., 717 A.2d 546, 552 (Pa.
      Super. 1998). This doctrine states: “[w]here a person, having a
      choice of two ways, one of which is perfectly safe, and the other
      of which is subject to risks and dangers, voluntarily chooses the

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      latter and is injured, he is guilty of contributory negligence and
      cannot recover.” Downing v. Shaffer, 246 Pa. Super. 512, 371
      A.2d 953, 956 (1977) (citation omitted). This doctrine does not
      require anybody to follow a particular route, however. . . .

      In order for there to be sufficient evidence to warrant a jury
      instruction for the doctrine, there must be “evidence of (1) a safe
      course, (2) a dangerous course, and (3) facts which would put a
      reasonable person on notice of the danger or actual knowledge of
      the danger.” [Downing, 371 A.2d at 956] (citation omitted). The
      “choice of ways” doctrine has a narrow application and it should
      only be applied in “the clearest case.” Oswald [v. Stewart, 448
      A.2d 1, 2 (Pa. Super. 1982)]. In cases in which “the doctrine has
      been applied to find that the plaintiff was contributorily negligent,
      the danger the plaintiff chose to confront was indisputably
      obvious.” O'Brien v. Martin, 432 Pa. Super. 323, 638 A.2d 247,
      249–50 (1994).

Id. at 153-54.

      Babbish’s counsel also addressed choice of ways in his closing argument,

indicating that Babbish said she could not get back to her car using a cleared

path from the entrance to the street because a car was parked in that spot.

Notes of Testimony, Trial, 10/25/18, at 300-01. Counsel reminded the jurors

of the conflicting testimony offered by Babbish and her husband as to whether

there was a car in that spot from the time they arrived at the Child Care Center

until Babbish fell. Id. at 298-300. Counsel suggested that “if she had another

way to get [to the car] that was perfectly safe that wouldn’t have caused her

injury and any risk and she failed to take that one, then she is responsible for

her actions and not [] Rizzo.” Id. at 301.

      In their third issue, Appellants claim trial court error for failure to

instruct that a possessor of land is not an insurer of safety (Proposed Point for


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J-A03021-20


Charge #20) and that property owner owes duties to pedestrians to maintain

sidewalks and to remove snow (Proposed Points for Charge #2-#7). None of

the proposed points for charge are based on Pennsylvania Suggested Standard

Jury Instructions, although most include citations to case law.3

       In the trial court’s charge, the judge instructed:

       The law in Pennsylvania is that one in possession of land is
       required to maintain the abutting public sidewalks in a reasonably
       safe condition to prevent or eliminate any hazardous or unsafe
       condition that upon all the circumstances involved would be an
       unreasonable risk of harm to pedestrians properly using walks.

Id. at 347.

       Appellant’s fourth allegation of error is based on an assertion that the

trial court asked the jury to determine whether Rizzo owed Babbish “a duty to

clear the entire front of the building from the edge of the building to the

street.” Appellant’s Brief at 39. However, the court’s charge did not assign

that task to the jury. Rather, the court stated, “Ladies and gentlemen, in this

____________________________________________


3  We note that “[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, 604 A.2d 270, 273 (Pa. Super. 1992)). As we
explained in Butler, the instructions have not been adopted by our Supreme
Court. Id. at 273. “The court is free to formulate and express its charge as
it sees fit, provided the charge fairly and accurately apprises the jury of the
relevant law and guides the jury in its deliberations.” Id.




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case, the parties dispute what constitutes a sidewalk. Was the sidewalk the

area from the building to the street or something less than that[?] It will be

up to you, the jury, to determine what area constitutes the sidewalk in this

case.” Id. at 346-47. The court went on to explain, as set forth above, the

possessor of land’s requirement to maintain sidewalks in a reasonably safe

condition, preventing or eliminating unsafe conditions that create an

unreasonable risk of harm to pedestrians. Id. at 347.

      Reviewing the charge as a whole, against the background of the

evidence admitted in this case, we find no clear abuse of discretion or error of

law controlling the outcome of the case. The court properly charged the jury

on comparative negligence in keeping with the evidence presented rather than

deliver a confusing and disfavored assumption of the risk charge.         As is

recognized in the Note to the Suggested Standard Jury Instructions, there is

no standard instruction on assumption of risk “because 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.”       Note, Pa. SSJI 13.220.

Importantly, the jury determined that Babbish was comparatively negligent

and assigned 20% of the negligence to her.

      Also in keeping with the evidence presented, the trial court declined to

deliver a choice of ways instructions. The evidence did not demonstrate that

availability of an alternative perfectly safe path.       Although there was

conflicting testimony, it was for the jury to determine whether there was, in


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fact, another car in the parking spot at the end of the path Rizzo shoveled

from the entrance of the Child Care Center to Fifth Street. If that path was

not available to Babbish, the alternative was to walk into the slushy street

where vehicles were traveling. When asked if she could have gone around

into the street with her grandson, Babbish replied, “No, I wouldn’t take him

out into the street.” Notes of Testimony, 10/25/18, at 250.

      Regarding the proposed points for charge relating to possessors of land,

sidewalks and snow removal, a review of the court’s charge reveals that the

court properly charged the jury on the duties of a property owner to maintain

sidewalks in a reasonable condition. There were no issues relating to when

snow was removed, nor were there any issues relating to accumulations of

snow and ice. This was simply a situation in which Rizzo shoveled part, but

not all, of the seven and a half-foot wide paved surface that ran the length of

the building between the Child Care Center and the street. It was up to the

jury to determine whether she was reasonable in removing some, but not all,

of the snow from the area, in clearing three paths from the doors of the

building to the abutting streets and alley, and in depositing the shoveled snow

on top of the portions she did not shovel. The instructions provided by the

trial court put those questions squarely before the jury in their consideration

of whether Rizzo acted reasonably.

      Finally, despite Appellants’ protests to the contrary, the court did not

ask the jury to determine whether Rizzo owed a duty to clear the entire paved


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surface. Rather, the court explained that “the parties dispute what constitutes

a sidewalk.”   Id. at 346.    The jury was charged with making a factual

determination as to “what area constitutes the sidewalk in this case.” Id. at

346-37.   After doing so, the jury was to determine whether Rizzo, as the

person in possession of land, acted reasonably in maintaining “abutting public

sidewalks in a reasonably safe condition.” Id. at 347.

      Mindful of our standard of review, we find that the charge as a whole

was adequate and did not have a tendency to mislead the jury. See Pledger,

supra, 198 A.3d at 1146. Finding no clear abuse of discretion or error of law

controlling the outcome of the case, we shall not disturb the jury’s verdict.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/11/2020




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