J-A20016-16

                             2016 PA Super 303



JOHN STAPAS                                     IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GIANT EAGLE, INC., A PENNSYLVANIA
ENTITY; GIANT EAGLE, INC., T/D/B/A
GETGO FROM GIANT EAGLE, A
PENNSYLVANIA ENTITY; GIANT EAGLE
INC., T/D/B/A SOUTHSIDE GETGO, A
PENNSYLVANIA ENTITY; NADEEN
MCSHANE, AN INDIVIDUAL; GETGO
PARTNERS SOUTH, A PENNSYLVANIA
ENTITY; GETGO PARTNERS SOUTH-
MARYLAND, LLC, A PENNSYLVANIA
ENTITY; AND GETGO HOLDINGS, LLP, A
PENNSYLVANIA ENTITY

                         Appellants                 No. 1287 WDA 2015


              Appeal from the Judgment Entered July 24, 2015
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No: GD-09-012965


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                         FILED DECEMBER 23, 2016

      In this case that arises from a shooting outside a GetGo convenience

store, Appellants, Giant Eagle, Inc., a Pennsylvania entity; Giant Eagle, Inc.,

t/d/b/a GetGo from Giant Eagle, a Pennsylvania entity; Giant Eagle Inc.,

t/d/b/a Southside GetGo, a Pennsylvania entity; Nadeen McShane, an

individual; GetGo Partners South, a Pennsylvania entity; GetGo Partners

South-Maryland, LLC, a Pennsylvania entity; and GetGo Holdings, LLP, a
J-A20016-16


Pennsylvania entity (collectively “Giant Eagle”), appeal from the judgment

entered on July 24, 2015 in the Court of Common Pleas of Allegheny County

on a jury verdict returned in favor of Appellee, John Stapas (“Stapas”). For

the reasons that follow, we vacate the judgment entered in the court below

and remand for a new trial limited to damages.

       In its opinion filed on November 2, 2015, the trial court provided the

following procedural history:

       [Stapas] filed negligence claims against [Giant Eagle] seeking
       damages for injuries Stapas sustained on July 18, 2007 when
       Stapas was shot multiple times outside of the GetGo
       convenience store located at 117 S. 18th Street in the Southside
       of Pittsburgh. Stapas was shot by another patron, Brandon
       McCallister (“McCallister”), around 1:30 a.m. after the two males
       engaged in a verbal and physical altercation which began inside
       the GetGo store and carried outside into the parking lot.

       Stapas commenced this action by filing a civil complaint on or
       about November 10, 2009[1] alleging negligence claims against
       Giant Eagle and seeking damages for pain and suffering,
       permanent disability and impairment of earning capacity,
       diminution of the ability to enjoy life’s pleasure, and present and
       future medical expenses and income loss. There was a five (5)
       day jury trial which commenced on November 10, 2014 and
       ended on November 17, 2014.

       On November 17, 2014, the jury empaneled in this case
       returned a verdict finding Giant Eagle 73% negligent and Stapas
       27% negligent and awarded Stapas damages totaling
____________________________________________


1
  Suit was initiated by writ of summons filed on July 16, 2009, within two
years of the incident giving rise to this action. Regardless, because Stapas
was born on February 1, 1990, the statute of limitations for filing his
negligence action was tolled until February 1, 2008, giving him until
February 1, 2010 to file his suit. 42 Pa.C.S.A. § 5533(b)(1).




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       $2,086,000. This [c]ourt entered a verdict in favor of Stapas
       and against Giant Eagle in the amount of $1,522,780 as molded
       pursuant to the percentage apportionment of fault directed by
       the jury. Stapas filed a petition for delay damages on November
       26, 2014 pursuant to Pa.R.C.P. 238. On February 25, 2015, this
       [c]ourt entered an Order adding delay damages in the amount of
       $279,795.17 to the verdict, for a total award in favor of Stapas
       in the amount of $1,802,575.17.

       On November 26, 2014, Giant Eagle filed a timely motion for
       post-trial relief pursuant to Pa.R.C.P. 227.1 seeking a new trial
       and/or [JNOV] and/or a remittitur. This [c]ourt never ruled on
       Giant Eagle’s motion for post-trial relief because oral argument
       on Giant Eagle’s motion was continued generally pending receipt
       of a complete trial transcript.      The complete transcript of
       proceedings was not filed in this case until July 20, 2015, more
       than eight (8) months after completion of the trial. On July 24,
       2015, after receipt of the complete trial transcript, Stapas filed a
       praecipe to enter judgment in the amount of $1,802,575.17
       representing the molded verdict plus delay damages.[2] On
       August 21, 2015, Giant Eagle filed a Notice of Appeal to the
       Superior Court.[3]

Trial Court Opinion, 11/2/15, at 1-2 (unnumbered).          The trial court also

provided the following factual background:

       Stapas was seventeen (17) years old on the date of the incident
       and was employed as a busboy and dishwasher [at a Southside
       restaurant, working 40 hours a week and earning] $8.25 per
       hour plus approximately $14 to $20 per night in tips. He also

____________________________________________


2
  More than 120 days elapsed between November 26, 2014 when Giant
Eagle filed its motion and July 24, 2015 when judgment was entered on the
verdict. Therefore, the post-trial motion was denied by operation of law.
See Pa. R.C.P. 227.4; Morningstar v. Hoban, 819 A.2d 1191, 1195-96
(Pa. Super. 2003) (citations omitted).
3
  The trial court did not order Giant Eagle to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal.




                                           -3-
J-A20016-16


       periodically cleaned the grills at [the restaurant] in the early
       mornings prior to his shift to earn some extra money.

       Prior to the shooting, Stapas would frequently go to the GetGo in
       Southside after his shift[.] Stapas became casual friends with
       two of the night shift clerks, Crystal Stogden and LaToya
       Stevens, over a period of approximately one (1) month prior to
       the shooting.

       Stapas worked [on July 17, 2007 until around midnight, spent
       time with a friend who was waiting for a bus, and] then walked
       to the GetGo around 1:25 a.m. on July 18, 2007. Stapas
       entered the store at 1:26 a.m. and sat and talked to Ms.
       Stogden while she was making sandwiches behind the counter.[4]

       At 1:27 a.m. an unidentified young man entered the store and
       purchased a few items from Ms. Stogden. After paying for the
       items, the unidentified young man held the door open for Mr.
       McCallister to enter the GetGo. McCallister had previously been
       banned from the GetGo store.[5]

       Upon entering the GetGo, McCallister began arguing with Ms.
       Stogden about being banned from the store. Stapas testified
       that he had nothing to do with the argument and that he had no
       prior issues with McCallister.   McCallister exhibited signs of
       intoxication. Stapas stepped toward McCallister in an effort to
       calm the situation. He said he was concerned about trying to
       protect the female workers from McCallister. Ms. Stogden also
       walked around the counter and told McCallister to leave the store
       and escorted him out the door.

       Stapas followed McCallister outside where the situation
       escalated. Although Giant Eagle has a policy that employees
       should remain in the store in this type of situation, both workers
____________________________________________


4
  The transcript reflects that Stapas walked over to the far side of the
counter and stood while talking with Ms. Stogden. Notes of Testimony
(“N.T.”), Trial, 11/10/14, at 167-71.
5
 McCallister was banned from the store for pulling away from a gas pump
with the nozzle still attached. As of the date of the incident, the gas pumps
had been removed from the store. N.T., 11/10/14, at 210, 249-50.



                                           -4-
J-A20016-16


     came outside causing the situation to escalate. McCallister was
     screaming obscenities at the female workers as they continued
     to argue with each other. Stapas tried to separate McCallister
     and the female workers and to calm the situation. There were
     no security guards working at the store.

     Stapas followed McCallister to his vehicle while the two men
     were arguing and tried to get him to leave.        Stapas was
     concerned that he would be attacked by McCallister and the
     other male individual who arrived with McCallister. A physical
     fight ensued between Stapas and McCallister in the parking lot
     which then escalated to McCallister pulling out a gun and
     shooting Stapas four (4) times at approximately 1:30 a.m.
     McCallister had the gun on his person and did not retrieve it
     from his car.

     Stapas was admitted to Mercy Hospital on July 18, 2007 and was
     discharged on August 4, 2007. Stapas returned to work . . .
     about two weeks after he was released from the hospital,
     missing a total of six (6) weeks of work. He continued to work
     various jobs and eventually attended a class on working in the
     natural gas industry and is now employed by Patterson-Drilling
     UTI.

     Stapas has scarring from the bullets themselves, and from the
     surgical procedures necessary to remove the bullets. Stapas
     also experiences daily stomach pain which is aggravated at his
     job and when doing strenuous activity. Stapas is regularly
     concerned about losing his job if he is unable to push through
     the pain.

Id. at 2-4 (unnumbered) (citations to trial transcripts omitted). Our review

of the record confirms that the trial court has fairly summarized the

procedural history and factual background.

     Giant Eagle presents five issues for this Court’s consideration:

     I.    Whether Giant Eagle properly preserved its right to seek a
           new trial based on the jury’s evident partiality against
           Giant Eagle and violation of their oaths when they awarded
           $1.3 million for future wage loss that Stapas conceded he
           was not entitled to recover?

                                    -5-
J-A20016-16



      II.     Whether the jury’s evident partiality and violation of their
              oaths when they awarded $1.3 million for indisputable
              non-existent future wage loss undermines the entire
              verdict warranting a new trial for Giant Eagle?

      III.    Whether Giant Eagle also is entitled to a new trial because
              the trial court informed the jury that they must consider
              Stapas a business invitee to whom the highest duty of care
              is owed despite ample evidence in the record permitting
              the jury to find that Stapas was a mere licensee?

      IV.     Whether the [t]rial [c]ourt erred in refusing to grant Giant
              Eagle a mistrial after the jury heard improper evidence
              regarding (a) Giant Eagle’s subsequent remedial
              measures; (b) Stapas’ alleged lack of health insurance;
              and (c) Stapas’ use of a demonstrative exhibit that
              contained unsupported references to “sexual gestures”
              allegedly made by the shooter to a Giant Eagle employee
              before the incident?

      V.      Whether Giant Eagle is entitled to JNOV based on Stapas’
              assumption of the risk of harm resulting from voluntarily
              leaving the safety of the store to pursue his attacker
              which, in turn, led to his participation in a fight that he
              escalated by throwing the first punch?

Appellant’s Brief at 5.

      As reflected in the issues as presented, Giant Eagle contends the trial

court improperly denied its request for a new trial.           This Court has

recognized:

      [T]he standard of review of the denial of a motion for a new trial
      is not different than the grant of a new trial. Livelsberger v.
      Kreider, 743 A.2d 494 (Pa. Super. 1999).

            Our standard of review in denying a motion for a new trial
            is to decide whether the trial court committed an error of
            law which controlled the outcome of the case or committed
            an abuse of discretion. A new trial will be granted on the
            grounds that the verdict is against the weight of the

                                      -6-
J-A20016-16


         evidence where the verdict is so contrary to the evidence it
         shocks one’s sense of justice. An appellant is not entitled
         to a new trial where the evidence is conflicting and the
         finder of fact could have decided either way.

Cangemi ex rel. Estate of Cangemi v. Cone, 774 A.2d 1262, 1265 (Pa.

Super. 2001) (citations omitted).         Further, “[i]f the verdict bears a

reasonable resemblance to the proven damages, it is not the function of the

court to substitute its judgment for the jury’s.”          Rettger v. UPMC

Shadyside, 991 A.2d 915, 934 (Pa. Super. 2010) (quoting Kiser v.

Schulte, 648 A.2d 1, 4 (Pa. 1994)). “Nevertheless, where the jury’s verdict

is so contrary to the evidence as to ‘shock one’s sense of justice’ a new trial

should be awarded.” Id. (quotations omitted).

      In Rettger, this Court reiterated that “[w]hen faced with . . .

uncontroverted   evidence,   a   jury’s   verdict   must   bear   a   reasonable

resemblance to the proven damages.” Id. (quoting Kiser, 648 A.2d at 6).

Moreover, as our Supreme Court recognized in Carroll v. Avallone, 939

A.2d 872 (Pa. 2007):

      The concept of Kiser, that the verdict must bear a relation to
      the evidence, is in tension with the notion that a jury may reject
      any evidence offered, even if uncontroverted; a jury is not
      obliged to believe or disbelieve any evidence presented at trial,
      including an expert’s opinion. However, a jury’s verdict cannot
      be based on whim or caprice, hence the holding in Kiser.

      Thus, if there is no argument or opposition on a particular point,
      the jury may not be free to disregard such information.

Id. at 875.




                                     -7-
J-A20016-16


      Because Giant Eagle’s first two issues are interrelated, we shall

address them together.     Giant Eagle asserts that it preserved its right to

seek a new trial in its post-trial motion. Giant Eagle further contends it is

entitled to a new trial because the jury’s award of $1,300,000 for future

wage loss was completely unsupported by the record and undermined the

entire verdict.

      In his closing argument to the jury, counsel for Giant Eagle addressed

the issue of wage loss, stating:

      [If you get to the point that you are considering damages,] Giant
      Eagle would . . . be responsible for whatever wage loss [Stapas]
      suffered as a result of this, and you heard that he missed
      approximately six weeks of work and he was making eight to ten
      dollars an hour at that point in time, and if the math is correct,
      somewhere between $2,500 and $3,000 which Giant Eagle
      would say it is responsible for at that point in time.

N.T., 11/17/14, at 804. At the conclusion of Giant Eagle’s closing argument,

Stapas’ counsel addressed the jury.       With respect to lost wages, counsel

explained:

      [T]o be quite frank with you, the Judge will give you the
      numbers, but the damage – the easy parts of this are the wages
      and the past and future medical. You know, the wages are –
      and I find this difficult to believe, but this kid crawled out of that
      bed and went back to the job at [the restaurant] to wash dishes
      six weeks after this shooting. Okay. I think that speaks the
      world of this kid, because we all know people, especially with
      litigation involved, that would have laid on the couch till this day
      and probably would be coming to you people and asking you for
      a lifetime of wages.

      I don’t know whether this kid’s going to [be] able to keep doing
      this job. I know with a tenth-grade education he’s going to have
      a hard time finding a job that pays him the twenty-five dollars

                                      -8-
J-A20016-16


       an hour he’s making now.[6] But, folks, that is dirty, laborious
       work. And his stomach is not holding up well. Okay. And
       whether or not he can put up with this long enough, I don’t
       know. But he’s not sitting here asking you for, you know, 6 –
       700,000 in wages for the rest of his life, because he’s going to
       fight through this.

       I just hope he’s right. And we spent a lot of time on this, but he
       better be right, because if he goes down because of his stomach
       and he can’t go up and do a job that involves his hands, he’s
       going to be in more trouble than he is now. But that’s a decision
       we made. And the Judge will give you the numbers of the past
       and present wage loss. It’s small. It’s six weeks of eight or nine
       dollars an hours, and it’s not much.

Id. at 836.

       In its charge to the jury, the trial court instructed, in relevant part:

       If you find that [Giant Eagle] is liable to [Stapas], you must then
       find an amount of money damages which you believe will fairly
       and adequately compensate [Stapas] for all the physical and
       financial injuries he has sustained as a result of the incident.
       The amount which you award today must compensate [Stapas]
       completely for damages sustained in the past, as well as damage
       [Stapas] will sustain in the future.

       The damages recoverable by [Stapas] in this case and the items
       that go to make them up, each of which I will discuss with you
       separately, are as follows:    A, past and future pain and
       suffering; B, embarrassment and humiliation; C, medical
       expenses; D, loss of the enjoyment and pleasure of life; and E,
       disfigurement.

       In the event you find in favor of [Stapas], you will add these
       sums of damage together and return your verdict in a single
       lump sum.


____________________________________________


6
 Stapas testified that he ultimately received his GED.         N.T., 11/10/14, at
86.



                                           -9-
J-A20016-16


Id. at 848.      For reasons not apparent from the record, the trial court

instructed the jury on past and future medical expenses but did not mention

wage loss. Id. at 848-50.

      The jury was presented a verdict slip and was asked to answer six

interrogatories, i.e., was Giant Eagle negligent; was Giant Eagle’s negligence

a factual cause of harm to Stapas; was Stapas negligent; was Stapas’

negligence a factual cause of harm; what percentage of causal negligence is

attributable to each party; and what damages did Stapas sustain?

      In the sixth interrogatory on the verdict slip, the jury was asked to:

      State the amount of damages, if any, sustained by the Plaintiff
      as a result of the accident (occurrence), without regard to and
      without reduction by the percentage of causal negligence, if any,
      that you have attributed to the Plaintiff, including the items
      listed below. In the event that you find in favor of Plaintiff, you
      will add the sums of damage together and return your verdict in
      a single, lump sum.

Jury Verdict Form, Question 6.

      Listed below the instructions for Question 6 were five categories of

damages followed by the word “Total” and a line for the total amount of

damages awarded. The jury completed the form and, despite the fact the

only line provided for a number appeared next to the word “Total,”

handwrote information (appearing below in bolded italics) next to the

damages categories as follows:

   a. Scarring           liposuction $3000

   b. Wage loss          past $3000, future $1,300,000


                                    - 10 -
J-A20016-16


  c. Past and future medical expenses          past $30,000 future 0

  d. Past, present and future pain and suffering         $500,000

  e. loss of life’s pleasures      $250,000

Total: $2,086,000_

Id.

      When the jury returned with its verdict, the tipstaff read from the

verdict slip. When the tipstaff came to question six, the following exchange

took place:

      TIPSTAFF: Question No. 6. Should I read the whole - -

      THE COURT: Yes.

      TIPSTAFF:    Scarring: Liposuction, 3,000.        Wage loss: Past:
      3,000.

      THE COURT: Just read the lump sum.

      TIPSTAFF: Okay. 3,000, and future: 1,300,000. Past and
      future medical expenses: 30,000 past. Future, zero. Past,
      present and future pain and suffering: 500,000.

      THE COURT: Just the total.

      TIPSTAFF: Total? I’m sorry. $2,086,000. Signed by the jury
      foreman.

      THE COURT: Any questions?

      [COUNSEL FOR GIANT EAGLE]: Poll the jury, please?

      THE COURT: Poll the jury. When your number’s called, please
      stand up.

N.T., 11/17/14, at 863.         The tipstaff polled the jurors and each juror

indicated the verdict was his or hers.     When the trial court asked if there

                                      - 11 -
J-A20016-16


were any questions, counsel for Giant Eagle responded, “None.” Id. at 864.

The trial court directed some closing remarks to the jury, thanked them, and

dismissed them. Id. at 865-66.

      In its first issue, Giant Eagle contends it properly preserved its right to

seek a new trial based on the jury’s partiality, evidenced by its lost wages

award.   In its November 2, 2015 opinion, the trial court determined the

issue was waived for failure to raise it prior to dismissal of the jury. Trial

Court Opinion, 11/2/15, at 5. The trial court explained:

             [T]his case was submitted to the jury for a general verdict.
      The jury verdict slip was drafted by and agreed to by counsel for
      all parties, including counsel for Giant Eagle. The verdict sheet
      jointly submitted by the parties was given to the jury without
      objection by any party’s counsel, including counsel for Giant
      Eagle. The jury returned a general verdict in favor of Stapas and
      against Giant Eagle in the amount of $2,086,000, which was
      later molded by this [c]ourt pursuant to the percentage
      apportionment of fault directed by the jury. Since Giant Eagle
      agreed to submit this case to a jury for a general verdict, it
      cannot itemize and attack certain components of the jury’s
      award.

            [I]n attacking the jury’s award, Giant Eagle relies on
      handwritten notations in the margin of the jury slip as a basis for
      arguing that certain components of the damage award were
      inappropriate. By failing to raise this objection before the jury
      panel was dismissed, however, Giant Eagle waived the issue.
      See Picca v. Kriner, 645 A.2d 868, 871 (Pa. 1994).

             When the jury returned its verdict, counsel for Giant Eagle
      did not assert that the jury’s damage award was improper, did
      not request the jury be sent back for further deliberations on the
      issue, and made no objection of any kind to the verdict. Giant
      Eagle instead polled the jury and the jury was dismissed. If
      counsel for Giant Eagle had raised an objection at the time the
      jury slip was read, this [c]ourt could have asked the jury to
      clarify its verdict, including its handwritten notations in the

                                     - 12 -
J-A20016-16


      margin. Since the jury was dismissed without inquiry, this
      [c]ourt cannot speculate as to what the jury intended, and this
      [c]ourt would have accepted the total damage award as a
      general verdict in favor of Stapas. The jury’s verdict . . . bears a
      reasonable relation to Stapas’ proven damages. Stapas was
      fully compensated for his past medical expenses and lost wages,
      and for past and future pain and suffering as well as scarring and
      loss of life’s pleasures. As such, the jury award should stand.

Id. at 5-6.

      The trial court categorized the verdict as a “general verdict.” Id. at 5.

Giant Eagle counters that the verdict was a “special verdict.”       Appellant’s

Brief at 14. In fact, the verdict was a general verdict with special findings.

As our Supreme Court explained in Fritz v. Wright, 907 A.2d 1083 (Pa.

2006):

      In Pennsylvania, verdicts may be general, special, or general
      with special findings.fn See Fulforth v. Prudential Ins. Co. of
      Amer., 147 Pa. Super. 516, 24 A.2d 749 (1942). A general
      verdict is a finding by the jury in terms of the issue or issues
      referred to them and is, either wholly or in part, for the plaintiff
      or for the defendant.      Id. at 753; see also Black’s Law
      Dictionary (8th ed. 2004) (defining general verdict as a verdict
      “by which the jury finds in favor of one party or the other”).
      Thus, when a trial judge requires only a general verdict slip, a
      jury will be call upon only to find “for plaintiff in the amount of
      . . .” or “for defendant.” No other substance will appear on the
      general verdict slip.

      In contrast, when the trial court exercises its discretion to
      employ a general verdict with special findings . . . , the analytical
      subparts of the jury’s process will be set forth in individual
      questions to be answered by the jury, and the answers thereto
      are always given in connection with the ultimate general verdict.
      See Fulforth, 24 A.2d at 753[.] . . . [S]hould the jury arrive at
      the last question, the slip's “bottom line” looks akin to the
      general verdict slip in that the amount of damages awarded to
      the plaintiff are specified.


                                     - 13 -
J-A20016-16


         fn
           A special verdict, which is not implicated in this case, is one in which
         the jury finds all material facts in the case, leaving the ultimate
         decision of the case on those facts to the court. See . . . Fulforth, 24
         A.2d at 753[.]

Id. at 1091-92 (some internal citations and footnote omitted).                        Further,

“when special findings are employed in connection with a general verdict,

the jury’s decision is the general verdict, not the answers to the individual

interrogatories[.]” Id. at 1092. “[I]n the usual case where special findings

are consistent with the general verdict, the special findings are considered

merely advisory.” Id. (citation omitted) (emphasis added).

      Here, the jury was directed to provide one lump sum indicating the

total damages awarded to Stapas. However, the jury instead assigned an

award of damages to each category listed on the verdict slip and took the

liberty of awarding $1.3 million for lost wages despite Stapas’ concession

that he was not seeking damages for future lost wages and despite a

complete lack of evidence to support such an award.

      The trial court suggested that if counsel had objected when the verdict

slip was read, the court “could have asked the jury to clarify its verdict,

including its handwritten notations in the margin.”                 Trial Court Opinion,

11/2/15, at 5.     Because the jury was dismissed without inquiry into the

notations on the verdict slip, the trial court determined the issue was

waived. Id. The trial court explained it could not “speculate as to what the

jury intended; and this [c]ourt would have accepted the total damage award

as a general verdict in favor of Stapas.” Id.


                                          - 14 -
J-A20016-16


       The trial court cites Picca v. Kriner, 645 A.2d 868, 871 (Pa. 1994), as

authority for concluding Giant Eagle’s issue was waived for lack of objection

before the jury was dismissed. As our Supreme Court noted in Criswell v.

King, 834 A.2d 505 (Pa. 2003), Picca held that a plaintiff who fails to object

to an ambiguous or flawed jury verdict before the jury is dismissed waives

the right to challenge the verdict in post-trial motions.     Id. at 508.    The

Supreme Court expressed its agreement with post-Picca decisions rendered

by this Court7 recognizing “that a claim challenging the weight of evidence is

not the type of claim that must be raised before the jury is discharged.

Rather, it is a claim which, by definition, ripens only after the verdict, and it

is properly preserved so long as it is raised in post-verdict motions.” Id. at

512. The Court concluded:

       We reaffirm that which was recognized in [City of Philadelphia,
       Police Dept. v. Gray, 633 A.2d 1090 (Pa. 1993)], i.e., that an
       inconsistent verdict provides grounds for objection and, if a party
       seeks relief upon grounds of verdict inconsistency, it must
       forward a timely, contemporaneous objection upon the rendering
       of the verdict. But a claim of verdict inconsistency is not the
       same complaint as a claim sounding in evidentiary weight. A
____________________________________________


7
  Id. at 511 (citing, inter alia, Hobbs v. Ryce, 769 A.2d 469, 472 n. 3 (Pa.
Super. 2001); King v. Pulaski, 710 A.2d 1200, 1204 (Pa. Super. 1998);
Lewis v. Evans, 690 A.2d 291, 293 (Pa. Super. 1997); Rozanc v. Urbany,
664 A.2d 619, 621-222 (Pa. Super. 1995) (Picca waiver rule inapplicable
where post-trial claim is not that the jury verdict was ambiguous or flawed,
but rather, that it was “contrary to the evidence admitted at trial”) (post-
trial motion alone is sufficient to preserve a claim that the verdict is against
the weight of the evidence where the verdict is not inconsistent or
ambiguous and/or where an objection and instruction to the jury would not
have eliminated the need for a new trial)).



                                          - 15 -
J-A20016-16


      verdict may be perfectly consistent and yet be a shock to the
      losing party, as well as a shock to the conscience of the jurist
      who oversaw the presentation of evidence.           Verdict-related
      claims arising from perceived evidentiary weight cannot be
      addressed and averted by resubmission to the same jury. Since
      the complaint cannot be redressed by the jury, there is no
      reason, under the principles animating [Dilliplaine v. Lehigh
      Valley Trust Co., 322 A.2d 114 (Pa. 1974)] and its progeny, to
      require an objection before the jury is discharged. Nor should a
      party be forced to litigate a claim of verdict inconsistency when
      in fact its true complaint sounds in evidentiary weight.

Id. at 513. As in Criswell, Giant Eagle did not assert that the jury’s verdict

was inconsistent or ambiguous.      Rather, Giant Eagle—like Criswell—filed a

timely post-verdict motion requesting a new trial because the jury’s

damages award “is not supported by sufficient competent evidence of

record, is against the weight of the evidence, is arbitrary, excessive and so

contrary to the evidence as to shock one’s sense of justice, and no two

reasonable minds could fail to agree that the award of future wage loss was

improper.” Giant Eagle’s Motion for Post-Trial Relief, 11/26/14, at 1. “Since

this request was, by definition, one which ripens only at the post-verdict

stage, . . . it was properly forwarded for the first time in a timely-filed post-

trial motion. See Pa. R.C.P. 227.1(b).” Crisswell, 834 A.2d at 513. We

find that Giant Eagle properly preserved its right to seek a new trial by filing

a timely post-trial motion contending the verdict was against the weight of

the evidence and shocked one’s sense of justice.

      The trial court suggests that the verdict “bears a reasonable relation to

Stapas’ proven damages.” Trial Court Opinion, 11/2/15, at 6. We cannot


                                     - 16 -
J-A20016-16


agree.   It is not lost on us that had the jury followed the trial court’s

instructions and returned a single sum verdict, we would not be able to

discern whether the jury awarded any part of that sum for future lost wages.

However, that is not the case. As reflected on the record, the jury clearly

allocated $1,300,000 for future lost wages that were unsupported by the

evidence and were specifically disclaimed by Stapas’ counsel. Although Lady

Justice is blindfolded, we will not don blinders to pretend the jury was within

its rights to award damages that were neither sought nor proven.        Again,

our Supreme Court instructed that “where special findings are consistent

with the general verdict, the special findings are considered merely

advisory.”    Fritz, 907 A.2d at 1092.       Here, unwittingly or not, the jury

provided special findings that revealed the special finding awarding future

lost wages was unsupported by the evidence presented at trial and,

therefore, inconsistent with the general verdict. Under these circumstances,

the special findings compel us to conclude that the verdict was against the

weight of the evidence and that the trial court abused its discretion by not

granting Giant Eagle a new trial. See Kiser, 648 A.2d at 3-4. Therefore,

because Giant Eagle preserved its challenge to the weight of the evidence in

its post-trial motion and because the award of future lost wages was

completely unsupported by the evidence, we vacate the judgment entered

on the verdict and award a new trial.




                                    - 17 -
J-A20016-16


      Having determined that the judgment must be vacated, we next

consider whether Giant Eagle is entitled to a new trial generally or one

limited to the issue of damages. Our Supreme Court has explained:

      The granting of a new trial limited to damages was not permitted
      under the common law. However, Pennsylvania and most other
      jurisdictions have adopted a rule permitting such limited new
      trials under certain specific circumstances. A new trial limited to
      the issue of damages will be granted where: (1) the issue of
      damages is not intertwined with the issue of liability; and (2)
      where the issue of liability has been fairly determined or is free
      from doubt.

Kiser, 648 A.2d at 7-8 (citations and quotation marks omitted).

      In Banohashim v. R.S. Enterprises, LLC, 77 A.3d 14 (Pa. Super.

2014), this Court noted:

      We have held that liability is “fairly determined” when “the court
      is convinced upon a review of the whole case that the jury [has]
      settled the issue as to responsibility fairly and upon sufficient
      evidence—so that dissociated from the other questions it ought
      to stand as the final adjudication of the rights of the parties.”
      Lambert v. PBI Indus., 244 Pa. Super. 118, 366 A.2d 944,
      956–957 (1976) (en banc) (quoting 58 Am.Jur.2d New Trial,
      § 27 (1971)).

Id. at 23 (brackets omitted).       Therefore, while we are charged with

reviewing the entire case, we shall specifically address Giant Eagle’s

remaining issues as part of that review and shall do so in the context of

determining whether Giant Eagle’s liability has been “fairly determined.”

      In its third issue, Giant Eagle contends the trial court erred as a matter

of law by instructing the jury that Stapas was a business invitee.          Giant

Eagle contends there was sufficient evidence to support a finding that Stapas



                                    - 18 -
J-A20016-16


was a licensee to whom Giant Eagle owed a lesser duty of care.              As this

Court has recognized:

     It is well-settled that “[t]he duty of a possessor of land toward a
     third party entering the land depends upon whether the entrant
     is a trespasser, licensee, or invitee.” Updyke v. BP Oil Co., 717
     A.2d 546, 549 (Pa. Super. 1998) (citation omitted). Generally,
     the determination of an entrant’s legal classification is one of
     fact for the jury. Palange v. City of Philadelphia, Law Dept.,
     433 Pa. Super. 373, 640 A.2d 1305, 1307 (1994), appeal
     denied, Palange v. Priori’s Bar & Restaurant, 542 Pa. 649,
     666 A.2d 1057 (1995). “Where the evidence is insufficient to
     support an issue, however, it may be appropriate for the court to
     remove that issue from the jury.” Id. (citation omitted).

Cresswell v. End, 831 A.2d 673, 675 (Pa. Super. 2003) (footnote omitted).

Further:

     The distinction between invitation and permission forms the
     basis for distinguishing an invitee from a licensee.

           Although invitation does not in itself establish the status of
           an invitee, it is essential to it. An invitation differs from
           mere permission in this: an invitation is conduct which
           justifies others in believing that the possessor desires
           them to enter the land; permission is conduct justifying
           others in believing that the possessor is willing that they
           shall enter if they so desire.

     Restatement (Second) of Torts § 332 cmt. b (1965) (cited with
     approval in Palange, 640 A.2d at 1308).

Id. at 676 (emphasis in original). Licensees include three types of persons:

     1. One whose presence upon the land is solely for his own
        purposes, in which the possessor has no interest, and to
        whom the privilege of entering is extended as a mere
        personal favor to the individual, whether by express or tacit
        consent or as a matter of general or local custom.




                                       - 19 -
J-A20016-16


     2. The members of the possessor's household, except boarders
        or paying guests and servants, who, as stated in § 332,
        Comments i and j, are invitees.

     3. Social guests. . . .

Restatement (Second) of Torts § 330 cmt h (1965).

     Giant Eagle argues that the record is “replete with evidence the jury

should have been permitted to consider to determine whether Stapas was a

licensee.” Appellants’ Brief at 26.     In support of its position, Giant Eagle

suggests that Stapas was a licensee who visited the GetGo to socialize with

the store clerks. Giant Eagle contends Stapas had a romantic interest in one

of the clerks and his conduct immediately preceding the shooting consisted

solely of conversing with a clerk rather than making a purchase. Giant Eagle

also claims support in the surveillance video footage from the minutes

before the shooting that shows Stapas leaning on the counter talking with

the clerk while she was working. Id.

      The cited instances are not reflective of the testimony generally and,

in fact, they skew it.   Stapas acknowledged he had been to GetGo many

times before the night of the shooting and “would go talk with [the clerks],

get my stuff, my pop and cigarettes.”            N.T. Trial, 11/10/14, at 169

(emphasis added).    When asked if he would sometimes “go and hang out

and just talk to them,” Stapas responded, “Yeah.”       Id.   However, on the

night of the shooting, he “was there to shop. I stopped and talked before

I bought anything.” Id. at 185 (emphasis added). He never got to the point


                                      - 20 -
J-A20016-16


of buying anything on the night in question but went there with that intent.

Id. at 192. Based on the surveillance video, Stapas was in the GetGo for

only two minutes before McCallister entered the store.          The shooting

occurred approximately two minutes later.

      The testimony supports the conclusion that Stapas was at the GetGo

on the night of the shooting as an invitee, i.e., as a customer that Giant

Eagle desired to enter the land for the purpose of buying goods, not as a

licensee Giant Eagle was willing to permit on the premises if Stapas so

desired. See Restatement (Second) of Torts § 330 cmt h (1965) and § 332

cmt b (1965). As the trial court recognized:

      Stapas entered the GetGo that night, the same way he had done
      many times before, with the intent of purchasing items. This is
      the very purpose for which the GetGo is held open to the public.
      The fact that Stapas was socializing for a few minutes with the
      night time clerks prior to making a purchase, people he knew by
      virtue of his past visits to the GetGo as a business invitee, does
      not change his status. There is simply no evidence of record
      that would support a finding that Stapas was anything but a
      business invitee and, thus, this [c]ourt properly refused to
      instruct the jury on the duty owed to a licensee.

Trial Court Opinion, 11/2/14, at 6-7.

      We find no error in the trial court’s determination that Stapas was an

invitee and for removing that issue from the jury.       Again, “[w]here the

evidence is insufficient to support an issue, [] it may be appropriate for the

court to remove that issue from the jury.” Palange, 640 A.2d at 1307. In

Palange, this Court determined that the trial court did not err in charging

the jury only on the duty owed to a licensee in a slip and fall case where the

                                    - 21 -
J-A20016-16


appellant used a sidewalk in front of a restaurant for her own purpose and

the restaurant neither encouraged nor desired such use. Id. at 1309. See

also Updyke, 717 A.2d at 549-50 (Pa. Super. 1998) (trial court did not err

charging jury that woman was a public invitee rather than a licensee when

she entered a combination gas station and convenience store to use a phone

after her car broke down); Juszczyzyn v. Taiwo, 113 A.3d 853, 856-58

(Pa. Super. 2015) (trial court did not err in determining police officer was a

licensee when assaulted by a lounge patron while responding to a

disturbance call); Cresswell, 831 A.2d at 677 (trial court did not err in

deciding as a matter of law that meter reader was a licensee when she fell

on the appellee’s property because meter reader was privileged to enter

property only by virtue of appellee’s permission and evidence was

insufficient to support a finding meter reader was an invitee). Giant Eagle’s

third issue fails.

      In its fourth issue, Giant Eagle asserts the trial court erred by refusing

to grant its mistrial requests regarding testimony elicited as a result of

tactics employed by Stapas’ counsel in three subject areas.       They include

subsequent remedial measures, Stapas’ alleged lack of health insurance, and

a demonstrative exhibit containing unsupported references to “sexual

gestures” made by the shooter to the GetGo clerks before the shooting. Our

standard for reviewing a trial court’s denial of a mistrial is abuse of




                                    - 22 -
J-A20016-16


discretion.   Commonwealth v. Lopez, 57 A.3d 74, 83 (Pa. Super. 2012)

(citation omitted).

      A mistrial is necessary only when the incident upon which the
      motion is based is of such a nature that its unavoidable effect is
      to deprive the defendant of a fair trial by preventing the jury
      from weighing and rendering a true verdict.         A mistrial is
      inappropriate where cautionary instructions are sufficient to
      overcome any potential prejudice.

Id. at 83-84 (citations and quotations omitted). To the extent Giant Eagle

challenges the trial court’s evidentiary rulings, this Court has recognized:

      [O]ur standard of review of a trial court’s decision to admit or
      exclude evidence is well-settled. When we review a trial court
      ruling on admission of evidence, we must acknowledge that
      decisions on admissibility are within the sound discretion of the
      trial court and will not be overturned absent an abuse of
      discretion or misapplication of law. In addition, for a ruling on
      evidence to constitute reversible error, it must have been
      harmful or prejudicial to the complaining party. An abuse of
      discretion is not merely an error of judgment, but if in reaching a
      conclusion the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will, as shown by the evidence or the
      record, discretion is abused.

Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008) (citation and

quotations omitted). “A party suffers prejudice when the trial court’s error

could have affected the verdict.” Schuenemann v. Dreemz, LLC, 34 A.3d

94, 101 (Pa. Super. 2011) (citation omitted).

      The trial court rejected Giant Eagle’s assertions regarding the

challenged testimony, stating:

      While improper remarks or tactics by counsel may sometimes
      warrant granting a new trial, this [c]ourt does not believe the
      tactics utilized by [Stapas’] counsel in this case rise to such

                                     - 23 -
J-A20016-16


      level. When considered in context, the [c]ourt did not find
      counsel[’s] remarks or tactics to be impermissible or beyond the
      scope of legitimate examination. Counsel’s remarks did not
      unduly appeal to the prejudice and sentiments of the jury and,
      even if they did, any possible error was cured when this [c]ourt
      instructed the jury not to allow sympathy or prejudice to play
      any part in their deliberations. The jury charge in this case was
      sufficient, under the circumstances, to cure any possible error.

Trial Court Opinion, 11/2/14, at 8.              We agree with the trial court’s

conclusions that the testimony, evidence, and “tactics” in question did not

warrant a new trial and were not harmful or prejudicial to Giant Eagle.

      Specifically, Giant Eagle’s first two claims regarding subsequent

remedial measures relate to an acknowledgement that Giant Eagle placed a

security guard in the store and created a safety committee after the

incident.      Pennsylvania Rule of Evidence 407 (Subsequent Remedial

Measures) provides:

      When, after an event, measures are taken by a party that would
      have made an earlier injury or harm less likely to occur,
      evidence of the subsequent measure is not admissible against
      that party to prove:
      .
          negligence;
      .
          culpable conduct;
      .
          a defect in a product of its design; or
      .
          a need for a warning or instruction.

      But the court may admit this evidence for another purpose such
      as impeachment or – if disputed – providing ownership, control,
      or the feasibility of the precautionary measure.

Pa.R.E. 407.


                                        - 24 -
J-A20016-16


      With regard to placing a security guard in the store, it is important to

note that Giant Eagle’s counsel objected to the question.            At a sidebar

discussion, the trial court sustained the objection and granted Giant Eagle’s

motion to strike.    See N.T., 11/10/14, at 223-24.          Giant Eagle did not

further request an instruction for the jury to disregard the question and no

instruction was given. We find neither abuse of discretion nor error of law

with respect to the trial court’s ruling.

      Regarding the formation of a safety committee, the exchange in

question took place on direct examination by Stapas’ counsel of a GetGo

supervisor called as a plaintiff’s witness as follows:

      QUESTION: Unrelated to this accident, you developed a safety
      committee later on in the years. Is that fair?

      ANSWER: Yes.

      QUESTION: That didn’t exist in ’07?

      ANSWER: They always had safety newsletters.             I don’t know
      what years they were developed.

      QUESTION: I said “safety committee.”

      ANSWER: Yeah, that’s part of the - -

            Counsel for       Giant   Eagle:    Objection,   Your     Honor.
            Subsequent.

            Stapas’ Counsel: It’s unrelated to this, Judge.         They say
            they didn’t do anything.

            The Court: (Indicating.)

            Stapas’ Counsel: Okay. One moment, Your Honor.


                                       - 25 -
J-A20016-16


N.T., 11/12/14, at 434.

       There was no further questioning about a safety committee and it is

not even clear whether or not there was a safety committee in 2007.

Further, as the quoted excerpt reflects, the trial court did not rule on the

objection raised by Giant Eagle’s counsel and counsel did not move to strike

or renew his objection before Stapas’ counsel moved on to another subject.

Nor did Giant Eagle’s counsel request a curative instruction or mistrial

relating to the issue of a safety committee. Therefore, there is no ruling for

us to review.8

       The third contested “subsequent remedial measures” issue stems from

re-direct examination of the Giant Eagle supervisor by Stapas’ counsel.

Counsel asked what the supervisor did in response to the shooting.        Id.,

11/13/14, at 502. The supervisor replied that she trains workers to be calm,

not follow people into the parking lot, not get loud, and not aggravate a

situation.   Id. at 502-03.       When asked if nothing had changed since the

shooting, counsel for Giant Eagle interjected, “Wait. Let -- ” The trial judge

instructed, “Answer, ma’am.” Id. at 503. The supervisor gave an answer

that can best be described as equivocal, stating, “I do what I did now and
____________________________________________


8
   Stapas suggests that the transcript’s reference to the trial court
“indicating,” might mean that the trial court gestured for counsel “to move
along.” Appellee’s Brief at 50. We will not speculate as to the meaning of
“indicating.” However, it is clear that Stapas’ counsel moved on to another
area of questioning.




                                          - 26 -
J-A20016-16


then, yes.”    Id. The re-direct examination continued and counsel for Giant

Eagle never registered an objection. Id. at 503-505. In light of the lack of

objection, no issue was raised before the trial court. Therefore, we will not

entertain it on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”); see

Agostinelli v. Edwards, 98 A.3d 695, 700 (Pa. Super. 2014). We find no

basis for relief based on any of Giant Eagle’s remedial measures arguments.9

       Giant Eagle next alleges the trial court erred by denying his request for

a mistrial after Stapas’ counsel elicited evidence regarding Stapas’ lack of

medical insurance. The only reference to insurance came in response to a

question on direct examination when Stapas was asked, “After you got out

of the hospital, you didn’t seek much treatment, did you?” N.T., 11/10/14,

at 146. Stapas responded that he did not seek much treatment “[b]ecause,

I mean, by the time I came close, I didn’t have any insurance.” Id. Counsel

for Giant Eagle objected and the trial court directed the response be

stricken. During sidebar discussion at the conclusion of direct examination,

Giant Eagle’s counsel moved for a mistrial. Id. at 155-56. The trial court

noted that the response had been stricken and discussed the possibility of

giving an instruction to the jury but did not make a decision at that point,

noting that “if it would happen to happen again, but hopefully it will not, but
____________________________________________


9
  We note Giant Eagle’s counsel did not request a mistrial in relation to any
of the subsequent remedial measures issues challenged in this appeal.



                                          - 27 -
J-A20016-16


if it does, that’s another story. Okay.” Id. at 157. Counsel for Giant Eagle

responded, “Okay.” Id.

      In Gatto v. Kisloff, 649 A.2d 996 (Pa. Super. 1994), this Court

observed:

      The general rule is that evidence of insurance is irrelevant and
      prejudicial and the presentation of such evidence justifies the
      grant of a mistrial. The mere mention of the word “insurance”,
      by itself, however, does not necessitate a new trial. Instead,
      there must be an indication that the party moving for a new trial
      was prejudiced in some way by the mention of the word
      “insurance.”

Id. at 998-99 (citations omitted).

      We agree with Stapas that the prohibition against the mention of

insurance generally applies to a defendant’s possession of liability insurance.

See Pa.R.E. 411.     We cannot agree with Giant Eagle’s contention that

Stapas’ alleged inability to pay for medical treatment was prejudicial to Giant

Eagle.   There was no suggestion that Stapas did not receive treatment

necessary for his recovery and the jury was instructed that Stapas was

entitled to recover his medical expenses from Giant Eagle if the jury found

Giant Eagle casually negligent for his injuries.   If anything, if Stapas had

medical insurance, indicating so would have been prejudicial to Stapas, not

Giant Eagle. However, Stapas testified he had no medical insurance and the

jury was instructed that he was entitled to recover medical expenses, which

the jury awarded.    Further, Giant Eagle’s counsel acknowledged he was

agreeable to the trial court’s “wait and see” approach, indicating a curative


                                     - 28 -
J-A20016-16


instruction could be given if the issue of insurance came up again.      It did

not, and counsel did not request an instruction. To the extent Giant Eagle

suggests counsel was appealing to the jury’s emotions by soliciting

information about Stapas’ lack of medical insurance, the trial court

instructed the jury that it was not to be influenced by anything other than

the law and the evidence of the case. N.T., 11/17/14, at 861. Accordingly,

we find no basis for relief relating to the mention of Stapas’ lack of medical

insurance.

      Giant Eagle also contends the trial court erred by denying his mistrial

request and allowing Stapas’ counsel to use a demonstrative exhibit that

contained “unsupported references to sexual gestures” made by the shooter

to one of the GetGo clerks before the shooting. While it is clear the clerk did

not testify that McCallister made sexual gestures to her, it is equally clear

that she testified that he was rude, disrespectful and called her names.

N.T., 11/13/14, at 274, 283. Further, when counsel for Giant Eagle objected

to the reference to “sexual gestures” in the exhibit, the trial court ordered

Stapas’ counsel to strike those references from the exhibit. Id. at 342. We

cannot agree that the passing reference to a “rude” and “disrespectful”

name-calling non-party’s “sexual gestures” resulted in any prejudice to Giant

Eagle. Cf. Poust v. Hylton, 940 A.2d 380 (Pa Super. 2007) (violation of

pre-trial order precluding counsel from using the word “cocaine” with respect

to a decedent resulted in prejudice warranting a new trial).


                                    - 29 -
J-A20016-16


         We find neither abuse of discretion nor misapplication of law in the

evidentiary rulings made by the trial court or in denying Giant Eagle’s

motions for mistrial, to the extent those motions were made. Further, we

find no resulting harm or prejudice to Giant Eagle. Giant Eagle’s fourth issue

fails.

         In its fifth and final issue, Giant Eagle contends it was entitled to a

JNOV based on Stapas’ assumption of risk. We cannot agree.

         This Court’s standard of review of a trial court’s denial of JNOV is as

follows:

         Appellate review of a denial of JNOV is quite narrow. We may
         reverse only in the event the trial court abused its discretion or
         committed an error of law that controlled the outcome of the
         case. Abuse of discretion occurs if the trial court renders a
         judgment that is manifestly unreasonable, arbitrary or
         capricious; that fails to apply the law; or that is motivated by
         partiality, prejudice, bias or ill will.

         When reviewing an appeal from the denial of a request for JNOV,
         the appellate court must view the evidence in the light most
         favorable to the verdict-winner and give him or her the benefit of
         every reasonable inference arising therefrom while rejecting all
         unfavorable testimony and inferences. . . . Thus, the grant of
         JNOV should only be entered in a clear case and any doubts
         must be resolved in favor of the verdict-winner[.]

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959,

967 (Pa. Super. 2015) (citations, quotation marks and brackets omitted).

         We first note Giant Eagle’s argument that the case “should have ended

with a nonsuit because no reasonable jury could have found against Giant

Eagle given the undisputed evidence establishing that Stapas pursued


                                       - 30 -
J-A20016-16


McCallister and assumed the risk of confronting and fighting him.”

Appellants’ Brief at 36.       However, the record reveals that at the close of

Stapas’ case, his counsel moved for a directed verdict as to Giant Eagle’s

negligence based on the testimony that Giant Eagle never “responded to the

Brandon McCallister incident.”        N.T., 11/14/14, at 643.   Counsel for Giant

Eagle responded:

       We would obviously deny that. I was going to move for a
       nonsuit on behalf of Giant Eagle due to they haven’t established
       any link between what happened and the shooting in question.
       However, the evidence in this case is such that there were
       responses by Giant Eagle to the incidents, and it would be
       inappropriate at this point in time to make any ruling in favor of
       [Stapas].

Id. The trial court responded, “Both denied.” Id. No other argument took

place relating to a motion for nonsuit and there is no indication on the record

that assumption of risk was even the basis of Giant Eagle’s nonsuit request.

       Giant Eagle is correct in recognizing that assumption of risk, while oft-

challenged, remains a viable defense “when a plaintiff voluntarily proceeds

to encounter a known risk.” Appellants’ Brief at 37 (citing Howell v. Clyde,

620 A.2d 1107, 1110 (Pa. 1993) (plurality)). 10 In Carrender v. Fitterer,

469 A.2d 120 (Pa. 1983), our Supreme Court held:

____________________________________________


10
   In its reply brief, Giant Eagle cites an unpublished memorandum opinion
of this Court in support of its contention that the demise of assumption of
risk in Pennsylvania has been greatly exaggerated. Appellants’ Reply Brief
at 22 n. 7. Had this been the only instance of Giant Eagle’s violation of the
prohibition against relying upon or citing an unpublished memoranda
(Footnote Continued Next Page)


                                          - 31 -
J-A20016-16


      A danger is deemed to be “obvious” when “both the condition
      and the risk are apparent to and would be recognized by a
      reasonable man, in the position of the visitor, exercising normal
      perception, intelligence, and judgment.” Restatement [(Second
      of Torts] § 343A comment b. For a danger to be “known,” it
      must “not only be known to exist, but . . . also be recognized
      that it is dangerous and the probability and gravity of the
      threatened harm must be appreciated.”         Id. Although the
      question of whether a danger was known or obvious is usually a
      question of fact for the jury, the question may be decided by the
      court where reasonable minds could not differ as to the
      conclusion. See Restatement, supra, § 328B comments c and d.

Id. at 123-24.

      Giant Eagle contends that no reasonable minds could disagree that

Stapas assumed the risk of being injured when he pursued and fought

McCallister. Appellants’ Brief at 38. We cannot agree.          As Stapas asserts,

there is no evidence Stapas was aware McCallister had a gun.            Appellee’s

Brief at 57.   Moreover, while characterized as a rude, disrespectful name-

caller, there was no evidence of prior violent acts on McCallister’s part or any

history of bad words or bad feelings between Stapas and McCallister before

the night of the shooting.         N.T., 11/10/14, at 101-04.   Therefore, Stapas

could not be said to have voluntarily encountered a known risk.




                       _______________________
(Footnote Continued)

decision of this Court, see 210 Pa. Code § 65.37, we might have chosen not
to mention it. However, because it is one of three unpublished decisions
relied upon or cited in Giant Eagle’s reply brief, we remind practitioners to
refrain from future instances of citation to unpublished memoranda
decisions.



                                           - 32 -
J-A20016-16


      Based on our review of the entire case, including a review of Giant

Eagle’s issues challenging liability, we are convinced that liability—attributing

73% to Giant Eagle and 27% to Stapas—has been “fairly determined,” i.e.,

that the jury has “settled the issue as to responsibility fairly and upon

sufficient evidence—so that dissociated from the other questions it ought to

stand as the final adjudication of the rights of the parties.” Banohashim,

77 A.3d at 23 (citations omitted).     Further, we find, as did our Supreme

Court in Kiser, that the issue of damages here is not intertwined with the

issue of liability. Giant Eagle had a “fair opportunity to litigate the issues of

negligence and contributory negligence[.]” Kiser, 648 A.2d at 8. The jury

found Giant Eagle negligent and Stapas contributorily negligent and

apportioned causal negligence accordingly. With regard to liability, we find

the jury’s decision was unambiguous and “free from doubt.” Id.        Therefore,

we find that Giant Eagle is entitled to a new trial limited to damages only.

      Judgment vacated. Case remanded for further proceedings consistent

with this Opinion. Jurisdiction relinquished.




                                     - 33 -
J-A20016-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




                          - 34 -
