J-A22005-19

                                  2019 PA Super 304

    PATRICK PEARSON                  :          IN THE SUPERIOR COURT OF
                                     :               PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
    PHILADELPHIA EAGLES, LLC, EAGLES :
    STADIUM OPERATOR, LLC, AND       :
    EXECUTIVE SERVICES MANAGEMENT :             No. 3053 EDA 2018
    INC.                             :
                                     :
                   Appellants        :

              Appeal from the Judgment Entered October 4, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 2016-0800243

BEFORE:       MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

OPINION BY MURRAY, J.:                                FILED OCTOBER 11, 2019

        Philadelphia Eagles, LLC and Eagles Stadium Operator, LLC (collectively,

Appellants) appeal from the judgment entered in favor of Appellee Patrick

Pearson (Pearson) following a jury trial. For the reasons that follow, we vacate

the judgment, reverse the order denying Appellants’ motion for judgment

notwithstanding the verdict, and remand for entry of judgment in favor of

Appellants.

        The trial summarized the facts as follows:

           On December 14, 2014, [Pearson], who was a Dallas Cowboys
        fan, went with his lifelong friend, Stanley Milligan, to the Eagles-
        Cowboys game. Notes of Testimony (N.T.) 5/22/18 at 152, 99-
        100. The game took place at Lincoln Financial Field, which is
        managed by [A]ppellants. Answer to Complaint dated January 9,
        2017. Appellants had entered into a contract with defendant

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A22005-19


     [Executive Services Management Inc. (Apex)] to provide security
     for the stadium.

         During the game, [Pearson] wore a 5X dark black Dallas
     Cowboys [Troy Aikman] No. 8 jersey to the Eagles-Dallas
     Cowboys game in question. [Pearson] and Mr. Milligan watched
     the game until halftime, when they went to the restroom. Once
     in the restroom, which was crowded, they got into line to use the
     urinals. When [Pearson] walked into the bathroom, the Eagles
     fans were taunting the Cowboys fans, calling them things like “a
     –hole” and “losers.” In response, [Pearson] told the Eagles fans
     to “get a ring and we’ll talk,” referring to the winning of a Super
     Bowl ring. [Pearson] was behind Mr. Milligan in line for the urinal.
     Once they were close to the urinal, Mr. Milligan heard someone
     behind him yell, “Shut the F-up.”          [Pearson] believed this
     statement was directed towards him, and, when he turned
     around, he saw a tall, white kid who smelled of alcohol. Mr.
     Milligan heard the phrase again, uttered closer to him.

         Mr. Milligan began using the urinal, during which he heard a
     scuffle to the side. Someone had walked up to [Pearson], grabbed
     the Dallas Cowboys knitted cap from [Pearson]’s head and threw
     it in a urinal near Mr. Milligan. When Mr. Milligan turned to see
     the cause of the commotion, he no longer saw [Pearson].
     [Pearson] testified that the young man who yelled at him had
     lunged at him, that he put his hands up, and somehow ended up
     on the floor. Mr. Milligan pushed through the crowd to find
     [Pearson] surrounded, on the floor, with four or five people
     holding him down, twisting his leg, and choking him. The man
     who had said “shut the F-up” may have been underneath
     [Pearson] at one point during the struggle, though Mr. Milligan did
     not see him. [Pearson] described one of the men, whom Mr.
     Milligan grabbed, as an “older white man in his mid 40s.” The
     men attacking [Pearson] ran off when someone yelled “security,”
     or that security was coming. Mr. Milligan and another individual
     picked [Pearson] up and stood guard. When [Pearson] stood up,
     he noticed his right foot was turned at a 90-degree angle.

        Eventually, a defendant Apex employee, who had been
     summoned by one of the game attendants, entered the restroom;
     he asked [Pearson] if he could stand but was unable to locate the
     attackers. At approximately 10:05 PM, defendant Apex called for
     medical personnel to be dispatched to the bathroom. Medical
     personnel was dispatched at 10:07 PM and was on the scene in

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J-A22005-19


        the bathroom at 10:09 PM. Security placed [Pearson] in a
        wheelchair and took him to the security booth where he was
        treated for a “possible right ankle fracture.” Defendant Apex was
        unable to locate the men who attacked [Pearson]. Defendant
        Apex did not call the police until 10:20 PM. No defendants ever
        provided police with any security footage concerning the attack.

           [Pearson] was taken to Methodist Hospital via ambulance at
        10:37 p.m. He subsequently underwent two surgeries at Einstein
        Hospital. He had two rods and 10 pins placed in his right leg.
        After 90 days with a cast on his right leg, [Pearson] underwent
        physical therapy. He now walks with a limp and has pain in his
        right leg.

Trial Court Opinion, 3/13/19, at 2-4 (record citations omitted).

        On August 2, 2016, Pearson commenced this personal injury action

against Appellants and Apex.1 Following preliminary objections, Pearson filed

amended complaints on September 2 and October 11, 2016. Pearson raised

allegations of negligence against Appellants and Apex relating to their security

program at the stadium, which he claimed caused his injury. On October 21,

2016, Appellants filed an answer with new matter. On December 4, 2017,

Appellants filed motions for summary judgment, which the trial court denied

on February 1, 2018.

        The trial court summarized the remaining procedural history:

           On May 25, 2018, following a jury trial before this [c]ourt, the
        jury returned a verdict for [Pearson.] . . . The jury found that
        [Appellants’] and [Apex’s] negligence were a factual cause of
        [Pearson]’s harm. Specifically, the jury found that [A]ppellants’
        causal negligence was 50%, [] Apex’s causal negligence was 30%,
        and [Pearson]’s own causal negligence was 20%. The jury
        awarded [Pearson] $700,000 in damages.
____________________________________________


1   Apex is not a party to this appeal.

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J-A22005-19



        On May 30, 2018, [Pearson] filed a post-trial motion requesting
     that this [c]ourt grant delay damages against all defendants. On
     June 4, 2018, [] Apex, as well as [A]ppellants, filed post-trial
     motions[, including a motion for judgment notwithstanding the
     verdict].

        As to [Pearson]’s motion for delay damages, on June 19, 2018,
     [A]ppellants filed a response seeking to limit the amount granted
     to [Pearson] in delay damages, and on June 20, 2018, [] Apex did
     as well. On July 1, 2018, [Pearson] filed a response in support of
     seeking greater delay damages from [] Apex, and on July 8, 2018,
     [Pearson] filed the same response concerning [A]ppellants. On
     July 11, 2018, this [c]ourt granted [Pearson] delay damages in
     the amount of $10,897.30 as to [A]ppellants and $6,156.16 as to
     [] Apex.

        As to [A]ppellants’ post-trial motions, on June 11, 2018,
     [Pearson] responded in opposition to [A]ppellants’ post-trial
     motions.     On September 28, 2018, this [c]ourt denied
     [A]ppellants post-trial motions, and judgment was entered
     accordingly. This timely appeal followed.

Id. at 1-2 (footnotes omitted).

     On appeal, Appellants present the following issues for review:

     A.   ARE [APPELLANTS] ENTITLED TO THE ENTRY OF A
     JUDGMENT N.O.V. DUE TO [PEARSON]’S FAILURE TO MEET HIS
     BURDEN OF PROVING A DUTY, A BREACH OF ANY DUTY OR THE
     REQUISITE ELEMENT OF CAUSATION OR, IN THE ALTERNATIVE,
     ARE [APPELLANTS] ENTITLED TO A NEW TRIAL BASED ON THE
     WEIGHT OF THE EVIDENCE?

     B.   ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE
     TRIAL COURT’S HARMFUL, PREJUDICIAL ERROR IN REFUSING TO
     ALLOW DEFENSE COUNSEL TO IMPEACH [PEARSON] WITH HIS
     PRIOR DEPOSITION TESTIMONY CONCERNING THE SUDDEN
     NATURE OF THE INCIDENT?

     C.   ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE
     TRIAL COURT’S HARMFUL, PREJUDICIAL ERROR IN ALLOWING
     NUMEROUS REFERENCES TO INSURANCE TO BE HEARD BY THE
     JURY?

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J-A22005-19



      D.   ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE
      TRIAL COURT’S HARMFUL, PREJUDICIAL ERROR IN CHARGING
      THE JURY WITH STANDARD JURY INSTRUCTION 18.120, AND NOT
      IN ACCORDANCE WITH THE SUPREME COURT’S DECISION, IN
      FELD V. MERRIAM, OR THIS COURT’S DECISION, IN REASON
      V. KATHRYN’S KORNER THRIFT SHOP, CONCERNING THE
      DUTY OWED BY [APPELLANTS] TO [PEARSON]?

      E.   ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE
      TRIAL COURT’S HARMFUL, PREJUDICIAL ERROR IN REFUSING TO
      RULE UPON THE ISSUE OF WHETHER THE JURY WOULD BE
      CHARGED WITH COMPARATIVE NEGLIGENCE AND WHETHER THE
      ISSUE WOULD BE SUBMITTED TO THE JURY UNTIL AFTER THE
      CLOSING ARGUMENTS TOOK PLACE?

Appellants’ Brief at 4-5.

      For their first issue, Appellants argue that the trial court erred in denying

their motion for judgment notwithstanding the verdict (judgment n.o.v. or

JNOV). We recognize the following standard of review:

      We will reverse a trial court’s grant or denial of a judgment
      notwithstanding the verdict only when we find an abuse of
      discretion or an error of law that controlled the outcome of the
      case. Further, the standard of review for an appellate court is the
      same as that for a trial court.

      There are two bases upon which a judgment [notwithstanding the
      verdict] can be entered; one, the movant is entitled to judgment
      as a matter of law and/or two, the evidence is such that no two
      reasonable minds could disagree that the outcome should have
      been rendered in favor of the movant. With the first, the court
      reviews the record and concludes that, even with all factual
      inferences decided adverse to the movant, the law nonetheless
      requires a verdict in his 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.




                                      -5-
J-A22005-19


United Envtl. Grp., Inc. v. GKK McKnight, LP, 176 A.3d 946, 959 (Pa.

Super. 2017) (quoting Shiflett v. Lehigh Valley Health Network, Inc., 174

A.3d 1066, 1081 (Pa. Super. 2017)).

      Appellants assert that they are entitled to judgment notwithstanding the

verdict based on their contention that Pearson “failed to set forth a prima facie

case of negligence against [Appellants].” Appellants’ Brief at 17. Specifically,

Appellants contend that Pearson failed to prove that Appellants were negligent

in implementing their security program and thus, Pearson could not

demonstrate that Appellants breached a duty that caused his injury.

      In any case alleging negligence, the plaintiff has the burden to prove

the following four elements: “1. [a] duty or obligation recognized by law[,]

2.[a] breach of the duty[,] 3. [c]ausal connection between the actor’s breach

of the duty and the resulting injury[, and] 4. [a]ctual loss or damage suffered

by complainant.” Wilson v. PECO Energy Co., 61 A.3d 229, 232 (Pa. Super.

2012) (quoting Cooper v. Frankford Health Care System, Inc., 960 A.2d

134, 140 n.2 (Pa. Super. 2008) (citation omitted). “[I]t is incumbent on a

plaintiff to establish a causal connection between defendant’s conduct, and it

must be shown to have been the proximate cause of plaintiff’s injury.” Lux

v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005)

(quotations and citation omitted).

      “The duty owed to a business invitee is the highest duty owed to any

entrant upon land. The landowner is under an affirmative duty to protect a


                                      -6-
J-A22005-19


business visitor not only against known dangers but also against those which

might be discovered with reasonable care.” Truax v. Roulhac, 126 A.3d 991,

997 (Pa. Super. 2015) (en banc) (quotations and citation omitted). This Court

has explained:

        In determining the scope of duty property owners owe to
     business invitees, we have relied on Restatement (Second) of
     Torts § 343, which provides:

        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 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.

     See Neve v. Insalaco’s, 771 A.2d 786, 790 (Pa. Super. 2001)
     (quoting Restatement (Second) of Torts § 343).

         An invitee must demonstrate that the proprietor deviated from
     its duty of reasonable care owed under the circumstances. Id. at
     791. Thus, the particular duty owed to a business invitee must
     be determined on a case-by-case basis. . . .

Campisi v. Acme Markets, Inc., 915 A.2d 117, 119-20 (Pa. Super. 2006)

(some citations omitted).

     Appellants argue that the trial court erred in concluding that they

deviated from the duty of reasonable care owed to Pearson under the

circumstances by not having security personnel stationed in the stadium


                                    -7-
J-A22005-19


restrooms on the basis that it was foreseeable that altercations could take

place in the bathrooms. Appellants assert, “[t]he mere fact that there was

not a guard placed in the bathrooms to monitor the patrons in no way

established any negligence with regard to the program of security actually

offered.” Appellants’ Brief at 21. Appellants contend that Pearson “cannot

meet his burden of proving negligence by claiming that he would not have

been injured if a different program of security was provided, i.e., an extra

security guard stationed inside the bathroom.” Id. (emphasis in original).

      In support of this argument, Appellants rely on our Supreme Court’s

decision in Feld v. Merriam, 485 A.2d 742 (Pa. 1984). In Feld, the plaintiffs

had just returned to their assigned parking space in the parking garage of

their apartment complex when three armed individuals assaulted them and

held them at gunpoint. Id. at 744. The plaintiffs sued the owners of the

apartment complex, “alleging a duty of protection owed by the landlord, the

breach of the duty, and injuries resulting therefrom.” Id. at 744-45. The jury

returned a verdict in favor of the plaintiffs and this Court affirmed. Id.

      On appeal to the Supreme Court, “[t]he threshold question is whether

a landlord has any duty to protect tenants from the foreseeable criminal acts

of third persons, and if so, under what circumstances.” Id. at 745. The Court

began its analysis by acknowledging the following:

         Well settled law holds landlords to a duty to protect tenants
      from injury rising out of their negligent failure to maintain their
      premises in a safe condition. See Smith v. M.P.W. Realty Co.
      Inc., 225 A.2d 227 (Pa. 1967); Lopez v. Gukenback, 137 A.2d

                                     -8-
J-A22005-19


      771 (Pa. 1958). That rule of law is addressed to their failure of
      reasonable care, a failure of care caused by their own negligence,
      a condition, the cause of which was either known or knowable by
      reasonable precaution. The criminal acts of a third person belong
      to a different category and can bear no analogy to the unfixed
      radiator, unlighted steps, falling ceiling, or the other myriad
      possibilities of one’s personal negligence. To render one liable for
      the deliberate criminal acts of unknown third persons can only be
      a judicial rule for given limited circumstances.

         The closest analogy is the duty of owners of land who hold their
      property open to the public for business purposes. See Leary v.
      Lawrence Sales Corp., 275 A.2d 32 (Pa. 1971). They are
      subject to liability for the accidental, negligent or intentionally
      harmful acts of third persons, as are common carriers, innkeepers
      and other owners of places of public resort.         Section 344,
      comment (f) of the Restatement (Second) of Torts, adopted by
      this [C]ourt in Moran v. Valley Forge Drive-In Theater, Inc.,
      246 A.2d 875 (Pa. 1968), requires that they take reasonable
      precaution against that which might be reasonably anticipated.
      The reason is clear; places to which the general public are invited
      might indeed anticipate, either from common experience or known
      fact, that places of general public resort are also places where
      what men can do, they might. One who invites all may reasonably
      expect that all might not behave, and bears responsibility for
      injury that follows the absence of reasonable precaution against
      that common expectation. The common areas of an apartment
      complex are not open to the public, nor are the general public
      expected or invited to gather there for other purposes than to visit
      tenants.

Id. (citations modified).

      Recognizing that “there is a general rule against holding a person liable

for the criminal conduct of another absent a preexisting duty,” the Court

explained that “there is also an exception to that rule, i.e., where a party

assumes a duty, whether gratuitously or for consideration, and so negligently

performs that duty that another suffers damage.” Id. (citing Pascarella v.

Kelley, 105 A.2d 70 (Pa. 1954)). The Court explained:

                                     -9-
J-A22005-19


       This exception has been capsulized in Section 323 of the
     Restatement (Second) of Torts, which 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.

     Previously we adopted this section as an accurate statement of
     the law in this Commonwealth. Gradel v. Inouye, 421 A.2d 674
     (Pa. 1980); DeJesus v. Liberty Mut. Ins. Co., 223 A.2d 849 (Pa.
     1966).

        Expounding on the proper application of Section 323 the
     drafters indicated that

       [T]his Section applies to any undertaking to render services
       to another which the defendant should recognize as
       necessary for the protection of the other’s person or things.
       It applies whether the harm to other or his things results
       from the defendant’s negligent conduct in the manner of his
       performance of the undertaking, or from his failure to
       exercise reasonable care to complete it or to protect the
       other when he discontinues it.

     Comment (a) § 323 Restatement (Second) of Torts. These
     comments are particularly relevant in a situation such as the
     present where a landlord undertakes to secure the areas within
     his control and possibly fosters a reliance by his tenants on his
     efforts.

        Absent therefore an agreement wherein the landlord offers or
     voluntarily proffers a program, we find no general duty of a

                                   - 10 -
J-A22005-19


     landlord to protect tenants against criminal intrusion. However, a
     landlord may, as indicated, incur a duty voluntarily or by specific
     agreement if to attract or keep tenants he provides a program of
     security. A program of security is not the usual and normal
     precautions that a reasonable home owner would employ to
     protect his property. It is, as in the case before us, an extra
     precaution, such as personnel specifically charged to patrol and
     protect the premises. Personnel charged with such protection
     may be expected to perform their duties with the usual reasonable
     care required under standard tort law for ordinary negligence.
     When a landlord by agreement or voluntarily offers a program to
     protect the premises, he must perform the task in a reasonable
     manner and where a harm follows a reasonable expectation of
     that harm, he is liable. The duty is one of reasonable care under
     the circumstances. It is not the duty of an insurer and a landlord
     is not liable unless his failure is the proximate cause of the harm.

         A tenant may rely upon a program of protection only within the
     reasonable expectations of the program. He cannot expect that
     a landlord will defeat all the designs of felonry. He can
     expect, however, that the program will be reasonably pursued and
     not fail due to its negligent exercise. If a landlord offers protection
     during certain periods of the day or night a tenant can only expect
     reasonable protection during the periods offered. If, however,
     during the periods offered, the protection fails by a lack of
     reasonable care, and that lack is the proximate cause of the injury,
     the landlord can be held liable. A tenant may not expect more
     than is offered. If, for instance, one guard is offered, he cannot
     expect the same quality and type of protection that two guards
     would have provided, nor may he expect the benefits that a
     different program might have provided. He can only expect the
     benefits reasonably expected of the program as offered and that
     that program will be conducted with reasonable care.

Feld v. Merriam, 485 A.2d at 746-47 (emphasis added, citations modified,

footnotes omitted).

     Instantly, while there is no dispute that Pearson was a business invitee

or that Appellants voluntarily undertook a duty protect its invitees from




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J-A22005-19


fighting during football games at Lincoln Financial Field,2 Appellants maintain

that Feld precluded their liability for Pearson’s injuries merely because they

did not have security personnel stationed in their restrooms, when the security

program they had in place was otherwise adequate and Pearson presented no

evidence that they operated it in a negligent manner. We agree.3



____________________________________________


2Lincoln Financial Field’s “Code of Conduct,” in the handbook available to all
guests who enter the premises, explicitly states:

       Lincoln Financial Field is committed to creating a safe, comfortable
       and enjoyable experience for our guests, both inside the stadium
       and throughout our parking areas. Our staff will proactively
       support an environment free from the following behaviors:

             Abusive, foul or disruptive language and obscene gestures.
             Intoxication or other signs of impairment related to alcohol
              consumption or other drug use
             Fighting, taunting or threatening remarks or gestures.
             Sitting in a location other than the guest’s ticketed seat.
             Displays of affection not appropriate in a public setting.
             Obscene or indecent clothing.
             Any disruption to the progress of the event by guests’
              actions.
             Any behavior which otherwise interferes with other guests'
              enjoyment of the game.

Plaintiff’s Exhibit P-7; [Pearson’s] Answer in Opposition to [Appellants’] Motion
for Summary Judgment, 12/17/17, Exhibit C (“Code of Conduct”). Thus, as
the Code of Conduct indicates, Appellants undertook to protect their guests
from “[f]ighting, taunting or threatening remarks or gestures.” Id.

3 Although the trial court rejected the application of Feld because this case is
not a landlord-tenant case, we note that this Court has previously applied Feld
outside of the landlord-tenant context. See Kerns v. Methodist Hosp., 574
A.2d 1068, 1075-78 (Pa. Super. 1990) (applying Feld to address the plaintiff’s
claim that the security program for the protection of staff, patients, and
visitors implemented by a hospital was inadequate).

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     This Court has explained that, pursuant to Comment f. to Section 344

of the Restatement (Second) of Torts, the duty to protect business invitees

against third party conduct arises only if the owner has reason to anticipate

such conduct. Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 102

(Pa. Super. 2017) (citing Truax, 126 A.3d at 997-98). Comment f. states:

     f. Duty to police premises. Since the possessor is not an insurer
     of the visitor’s safety, he is ordinarily under no duty to exercise
     any care until he knows or has reason to know that the acts of the
     third person are occurring, or are about to occur. He may,
     however, know or have reason to know, from past experience,
     that there is a likelihood of conduct on the part of third persons in
     general which is likely to endanger the safety of the visitor, even
     though he has no reason to expect it on the part of any particular
     individual. If the place or character of his business, or his past
     experience, is such that he should reasonably anticipate careless
     or criminal conduct on the part of third persons, either generally
     or at some particular time, he may be under a duty to take
     precautions against it, and to provide a reasonably sufficient
     number of servants to afford a reasonable protection.

Restatement (Second) of Torts § 344, Comment f.

     Thus, the appropriate inquiry in this case is first whether Appellants had

notice of prior incidents in the stadium bathrooms. See Reason, 169 A.3d at

102; Restatement (Second) of Torts § 344, Comment f. If no such notice

existed, then Pearson had to demonstrate that Appellants otherwise lacked

reasonable care in conducting their security program. See Feld, 485 A.2d at

745-47.

     Appellants argue that they had no notice that a violent attack like the

one on Pearson was likely to occur. Appellants maintain that the attack on

Pearson was a surprise and that there is no evidence of record that supports

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J-A22005-19


the trial court’s conclusion that Appellants were aware of multiple prior

incidents of violence in the stadium’s bathrooms.        In response, Pearson

asserts that Appellants were on notice that the stadium restrooms were a

dangerous location because Brian Beppel (Beppel), an Apex employee, and

James Hayslip (Hayslip), Appellants’ Director of Facility Security, both

explicitly testified at trial that they were aware that fights had occurred in

restrooms. Pearson’s Brief at 17-18 (“Despite knowing there were fights in

the restrooms, the Eagles now contend that they had no notice of prior acts

of fighting.”).

      The record, however, belies Pearson’s assertions.      While Beppel and

Hayslip acknowledged in their trial testimony that in the past, fights had

occurred in the restrooms, both explained that these incidents occurred with

such infrequency, that Appellants chose to have their security personnel more

closely monitor other areas of the stadium. N.T., 5/21/18 (Volume 1), at 86-

89, 94-95; N.T., 5/22/18 (Volume 2), at 20-21, 23-24.

      Significantly, Hayslip testified:

      Q. And it is not [Appellants’] policy, is it, to post someone in the
      restroom?

      A. It is not.

      Q. How about posting outside the restroom?

      A. No, sir.

      Q. Why not? Why don’t they want to post somebody there?




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J-A22005-19


     A. Historically, we’ve had no issues in the restrooms. I’ve been
     in that stadium since 2004, and, historically, we’ve had no issues
     inside the restrooms.

     Q. Are you going to sit here, Mr. Hayslip, and say since 2004 –
     you’ve been with [Appellants] now 14 years -- that in all those 14
     years, you’ve never had a fight or disturbance in the restroom?

     A. I’m not saying that, sir. What I’m saying is it's not something
     to the point that we need to concern [sic] to put staff in there.
     Our staff -- our concerns are in other places, not the restrooms.

     Q. Why not?

     A. There’s no data that reports that we have issues in the
     restroom.

     Q. I thought I just gave you an example.

     A. That’s one example in 12 years.

                               *     *      *

     Q. Was the decision cost not to post a security guard outside the
     restroom?

     A. No. As I said, it’s a situational deployment is what we call it,
     meaning there’s no -- you can also reference what’s called a hot
     sheet, where if we have incidents over a period of time in multiple
     locations, we see there’s a trend, we will put staff. It could be
     undercover. It could be somebody you don’t know is a staff
     person. We would change our deployment in order to manage
     that. The bathrooms don’t show that we’ve had historical data
     where we need to put some sort of staff in those locations. So no,
     sir.

                               *     *      *

     [Q.] [I]f [Appellants] are aware that fans can be subject to
     physical violence, why do they not put anybody outside the
     restrooms?

     A. Again, I told you there’s a method to our madness, and our
     methodology is that we go where the incidents are. We have staff

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J-A22005-19


     outside the building in order to get the guests in, 70,000 guests.
     Once they’re inside, we strategically place them throughout the
     building where we know the incidents are. Where the incidents
     are, not inside the bathrooms.

     Q. But did you say in your 14 years, you are aware of fighting in
     the bathrooms?

     A. Yes, there have been altercations in the bathroom.

     Q. And it’s not just the men's bathroom, right?          It’s in the
     women’s bathroom, too?

     A. Altercations?

     Q. Yes.

     A. I can’t recall any in the women’s bathrooms. Doesn’t mean
     that they don’t exist. But, again, that’s in general, we just don’t
     have a lot of incidents in the bathrooms.

N.T., 5/21/18 (Volume 1), at 86-89, 94-95.

     Similarly, Beppel testified to the following:

     Q. Have [Appellants] or anyone asked you to deploy any of your
     Apex personnel to be stationed outside a restroom?

     A. No. It’s part of their patrolling area, you know, . . . . So they
     do go in there, but it’s not at any set time or schedule or, you
     know, check when we would go in there.

     Q. Okay. And in the 14 years or so that you’ve been employed
     at Lincoln Financial Field, are you aware of any disturbances or
     incidences in the restroom.

     A. It’s pretty rare. Maybe some unconscious folks, you know,
     here or there. But it’s pretty rare to have a violent incident inside
     of a restroom.

     Q. Why is it rare?

     A. It just didn’t happen that frequently.


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     Q. How about in 2014? Did it happen?

     A. Yes.

     Q. Well –

     A. With the plaintiff.

     Q. Well, other than Mr. Pearson, are you aware of any restroom
     incidences in 2014 during any of the home games?

                                *     *      *

     Q. What I was asking you, Mr. Beppel, was to take a look at what
     was Nos. 210 through 212.

     A. Yes.

     Q. All right.   And they appear to me to be incidences in the
     restrooms.

     A. Yeah. Well, it’s exactly what I said, that there’s intoxicated
     persons. So we do find a lot of intoxicated persons in the
     restrooms, but violent incidents along the lines of assaults that led
     to broken bones, those are rare.

     Q. Right. I wasn’t talking just about assaults. I’m asking you did
     you have knowledge of any -- I use the term “incidences.” Are
     there any problems?

     A. And I said that, yeah, we tend to get a lot of intoxicated
     persons in the restroom, which is recorded by the log.

     Q. Doesn’t that concern you then?

     A. No.

     Q. You’re not concerned to have a lot of intoxicated persons in
     the restrooms?

     A. No. We go in and address them.

     Q. Doesn’t that lead to trouble, sir?


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J-A22005-19


      A. Not necessarily. It’s usually -- sometimes it’s an issue for the
      guest that’s actually intoxicated. They’re overimpaired, they can’t
      stand, can’t follow directions. We remove them or get them to
      the medical attention that they might need.

N.T., 5/22/18 (Volume 2), at 20-21, 23-24.

      Based on the testimony of Hayslip and Beppel, the record, at most,

indicates that Appellants were on notice that there were persons who became

incapacitated because of intoxication in the stadium restrooms. See N.T.,

5/21/18 (Volume 1), at 86-89, 94-95; N.T., 5/22/18 (Volume 2), at 20-21,

23-24. The record in no manner supports the trial court’s determination or

Pearson’s assertion that there was a history of violent assaults that occurred

in the restrooms. See id. To the contrary, the record shows that incidents of

violent assaults or fighting in the restrooms were a rare occurrence. See id.

Based upon our review of the record, there is no evidence that Appellants

knew or had reason to know, from past experience, that violent assaults were

likely to occur in the restrooms that would endanger Appellants’ invitees.

Therefore, under Comment f. to Section 344 of the Restatement (Second) of

Torts, Appellants did not act unreasonably by not stationing security personnel

in or directly outside the stadium restrooms. See Restatement (Second) of

Torts § 344, Comment f.

      Consequently, at best, Pearson can argue that Appellants should have

had in place a different security program or additional security personnel

available on the night of Pearson’s injury. Such an argument, however, is not

a basis for a finding of negligence under Feld. See Feld, 485 A.2d at 745-

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47.   Pursuant to Feld, in order to successfully prove a negligence claim,

Pearson had to demonstrate that the Appellants failed to conduct the security

program offered with “reasonable care.” See id.

      Appellants argue that there is no evidence of record indicating that they

lacked reasonable care in operating their security program. Pearson points to

his testimony at trial and the testimony of Milligan indicating that it took

several minutes for security personnel to arrive at the restroom following the

altercation that resulted in Pearson’s injury. Even assuming this testimony to

be accurate, it provides no support for Pearson’s claim that Appellants

negligently operated their security, as there is no indication in the record or

otherwise that had the security personnel been more prompt in arriving at the

restroom, it would have prevented Pearson’s injury.

      Pearson also points to the fact that it was a known danger to wear the

apparel of the opposing team to Eagles’ games as proof that Appellants

operated their security program in a negligent manner.       This argument is

unavailing, as Appellants both recognized this danger and addressed the issue

by having some of their security personnel dress in the opposing team’s

apparel at their games, and patrol the stadium undercover to identify

individuals who were harassing fans of the opposing team. See N.T., 5/22/18

(Volume 2), at 25-26.

      In sum, Feld instructs that property owners are liable to business

invitees for harm caused by the foreseeable criminal actions of third parties


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J-A22005-19


only if the property owner agreed to undertake or voluntarily undertook a duty

to provide such protection. Id. at 745-46. In such situations, an invitee “can

only expect the benefits reasonably expected of the program as offered and

that that program will be conducted with reasonable care.” Id. at 747. Where

a property owner knows or has reason to know, from past experience, that

there is a likelihood of conduct on the part of third persons that would harm

invitees, the property owner “may be under a duty to take precautions against

it, and to provide a reasonably sufficient number of servants to afford a

reasonable protection.” Restatement (Second) of Torts § 344, Comment f. In

this case, however, the record does not support the trial court’s conclusion

that Appellants were on notice that violent assaults regularly took place in the

stadium’s restrooms or that Appellants conducted their security program

without reasonable care.

      Therefore, we conclude that the trial court erred in denying Appellants

motion for judgment notwithstanding the verdict, as Appellants were entitled

to judgment as a matter of law.       See United Envtl., 176 A.3d at 959.

Accordingly, we vacate the judgment entered in favor of Pearson, reverse the

order denying Appellants’ motion for judgment notwithstanding the verdict,




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and remand this matter to the trial court for entry of judgment in favor of

Appellants.4

         Judgment vacated.       Order reversed.   Case remanded.   Jurisdiction

relinquished.



         Judge Pellegrini joins the Opinion.

         Judge Strassburger files a Concurring Opinion in which Judge Pellegrini

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/19




____________________________________________


4 Because we are vacating the judgment and reversing the order denying the
motion for judgment notwithstanding the verdict based on Appellants’ first
issue, we need not address Appellants’ remaining issues.

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