J-A21003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA A. KETCHUM AND JEFFREY A.                       IN THE SUPERIOR COURT OF
KETCHUM, H/W,                                              PENNSYLVANIA

                            Appellants

                       v.

GIANT FOOD STORES LLC,

                            Appellee                       No. 379 EDA 2014


            Appeal from the Judgment Entered December 17, 2013
             In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): June Term, 2012 No. 002302


BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED SEPTEMBER 30, 2014




judgment entered on a jury verdict in favor of Giant Food Stores, LLC



       The Ketchums commenced a negligence action against Giant seeking

to recover damages for injuries they sustained on June 22, 2010, after she

allegedly slipped and fell on some candles while shopping in the frozen food

section    of   a   Giant-operated       grocery   store   located   in   Morrisville,



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Pennsylvania.1 Trial Court Opinion 12/17/13, at 1-2. Mr. Ketchum asserted

a loss of consortium. The case proceeded to a jury trial on August 19, 2013.

Evidence was presented to the jury that, in order to prevent boxes of

candles from being inadvertently knocked to the floor, the boxes have a

center hole that slides onto a metal rod that is curved up to prevent them

from sliding from the display. N.T., 8/19/13, at 63. Furthermore, Giant had

a procedure in place whereby an employee would inspect the entire store

once every hour for any obstacles, spills, or debris.        Id. at 33.    At

approximately 2:17 p.m., a Giant employee completed an inspection of the

aisle where Mrs. Ketchum fell and found no hazards.       Id. at 47.   It was

reported that Mrs. Ketchum fell in aisle seventeen at approximately 2:30

p.m. Id

employees created the condition that led to the accident, or that anyone had

notified an employee of the spill.

       The Ketchums submitted a proposed point for charge regarding the

liability of a property owner that was based on New Jersey Model Civil Jury

Charge 520F(11). The court declined to give the proposed instruction based

on New Jersey law and, instead, instructed the jury in accordance with



____________________________________________


1
   There was a dispute at trial as to what caused Mrs. Ketchum to fall. She
testified that she slipped on a box of candles; the store manager described it
as loose candles. N.T., 8/19/13, at 108-09.



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              As an owner of property, an owner of property is required
       to use reasonable care in the maintenance and use of its
       property and to protect invitees from foreseeable harm. The
       owner of a property is also required to inspect the premises and
       to discover dangerous conditions. The owner of property is
       liable for harm caused to invitees by a condition on his property
       if the owner knows or, by using reasonable care, would discover
       the condition and should realize that it involves an unreasonable
       risk of harm, and the owner should expect that the invitees will
       not discover or realize the danger or will fail to protect
       themselves against it, and the owner fails to use reasonable care
       to protect the invitees against the danger. An owner of property
       is liable to invitees for any harm that the owner should have
       anticipated, regardless of whether the danger is known or
       obvious.

N.T., 8/21/13, at 17.2       The jury returned a unanimous verdict in favor of

Giant.

       The Ketchums filed a timely post-trial motion for a new trial pursuant

to Pa.R.C.P. 227.1, alleging that it was error for the trial court to refuse to

instruct the jury in accordance with New Jersey Model Civil Jury Charge

                                               -Trial Relief ¶ 14.   Following denial of

their motion, they filed this appeal, renewing their challenge to the jury

instruction:

       Whether the Trial Court committed an error of law and/or
       abused its discretion when the Trial Court chose to charge the


       Ketchums] to prove that [Giant] had notice of the dangerous

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2

18.40.    The only difference is that the trial court substituted the word




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      [Giant] aware of the danger to shoppers, like [Mrs. Ketchum].



      Initially, we note our standard of review of a tr

motion for a new trial.

      We will reverse a trial court's decision to deny a motion for a
      new trial only if the trial court abused its discretion. We must
      review the court's alleged mistake and determine whether the
      court erred and, if so, whether the error resulted in prejudice
      necessitating a new trial. If the alleged mistake concerned an
      error of law, we will scrutinize for legal error.         Once we
      determine whether an error occurred, we must then determine
      whether the trial court abused its discretion in ruling on the
      request for a new trial. An abuse of discretion exists when the
      trial court has rendered a judgment that is manifestly
      unreasonable, arbitrary, or capricious, has failed to apply the
      law, or was motivated by partiality, prejudice, bias, or ill will.

Potochnick v. Perry, 861 A.2d 277, 281-2 (Pa.Super. 2004) (quoting

Stalsitz v. Allentown Hospital, 814 A.2d 766, 771 (Pa.Super. 2002)).

      The Ketchums argue that Pa.SSJI (Civ.) 18.40 was incorrectly given to

the jury because it required them to prove that Giant had actual or



argue that New Jersey Model Civil Jury Charge 520F(11), which does not

require proof of actual or constructive notice in situations where the mode of

operation creates danger, should have been given to the jury.        Id. at 9.



dangerous, the burden of proof shifts to the store operator to prove that its

employees acted reasonably.     Id. at 12.   Thus, they contend that it was


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error for the trial court to deny the proposed point for charge based on New



       When jury instructions are challenged on appeal, the principles

governing our review are as follows:

       In examining jury instructions, our scope of review is limited to
       determining whether the trial court committed a clear abuse of
       discretion or error of law controlling the outcome of the case.
       Error in a charge is sufficient ground for a new trial if the charge
       as a whole is inadequate or not clear or has a tendency to
       mislead or confuse rather than clarify a material issue. Error will
       be found where the jury was probably [misled] by what the trial
       judge charged or where there was an omission in the charge. A
       charge will be found adequate unless the issues are not made
       clear to the jury or the jury was palpably misled by what the trial
       judge said or unless there is an omission in the charge which
       amounts to a fundamental error. In reviewing a trial court's
       charge to the jury[,] we must look to the charge in its entirety.
       Because this is a question of law, this Court's review is plenary.

Passarello v. Grumbine, 87 A.3d 285, 296-297 (Pa. 2014) (quoting

Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70

(Pa. 2006) (citations, quotation marks, and ellipses omitted)).

       The Ketchums wisely do not argue that New Jersey law governs

herein.3    Instead, the thrust of their argument appears to be that New

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3
  Pennsylvania applies the significant relationship test in determining what
substantive law applies in a tort action. In an action for personal injuries,
the law of the state where the injury occurred generally supplies the
applicable substantive law unless another state has a more significant
relationship to the occurrence and the parties. See Flamer v. N.J. Transit
Bus Operations, 607 A.2d 260, 264 (Pa.Super. 1992). The trial court
properly concluded that Pennsylvania had the most significant contacts since
the injury occurred in Pennsylvania, the Ketchums are Pennsylvania
(Footnote Continued Next Page)


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Jersey law adopted in Wollerman v. Grand Union Stores, Inc., 47 N.J.

426, 221 A.2d 513 (N.J. 1966), and which does not require a plaintiff to



be the law of Pennsylvania.          The mode-of-operation rule was incorporated

                        odel civil charges, specifically, 5.20F(11), which provides

as follows:

      5.20F(11) DUTY OWED-CONDITION OF PREMISES
      Notice Not Required When Mode of Operation Creates Danger

      A proprietor of business premises has the duty to provide a
      reasonably safe place for his/her customers. If you find that the
      premises were in a hazardous condition, whether caused by

      you find that said hazardous condition was likely to result from
                                                         business was
      conducted, and if you find that defendant failed to take
      reasonable measures to prevent the hazardous condition from
      arising or failed to take reasonable measures to discover and
      correct such hazardous condition, then defendant is liable to
      plaintiff. In these circumstances defendant would be liable even
      if defendant and his/her employees did not have actual or
      constructive knowledge of the particular unsafe condition, which
      caused the accident and injury.

New Jersey Model Jury Instruction 5.20F(11).            In Nisivoccia v. Glass

Gardens, Inc., 818 A.2d 314, 317 (N.J. 2003), the Supreme Court of New




                       _______________________
(Footnote Continued)

residents, and Giant, a Delaware corporation, is authorized to conduct, and
does conduct business in Pennsylvania. There are no contacts with New
Jersey.



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submitting evi

      We find no error herein since Nisivoccia and the proposed jury




plaintiff of the burden of proving actual or constructive notice of the danger.

      Under Pennsylvania law, the nature of the duty of a property owner

depends on the relationship between the parties at the time of the injury.

Estate of Swift by Swift v. Northeastern Hosp. of Phila., 690 A.2d 719

(Pa.Super. 1997). A business invitee is owed the highest standard of care



purpose directly or indirectly connected with business dealings with the

possessor                 Id. at 722-23. Giant admitted that Mrs. Ketchum

was a business invitee on the date of the incident, and that she was owed

the standard of care for a business invitee. See Answer ¶ 5. In Carrender

v. Fitterer, 469 A.2d 120, 123 (Pa. 1983), our Supreme Court reiterated

that the level of care owed to business invitees is derived from § 343 of the

Restatement (Second) of Torts:

      A party is subject to liability for physical harm caused to an
      invitee only if: he knows of or reasonably should have known of
      the condition and the condition involves an unreasonable risk of
      harm, he should expect that the invitee will not realize it or will
      fail to protect themselves against it, and the party fails to
      exercise reasonable care to protect the invitees against the
      danger.


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Restatement (Second) of Torts § 343.       Additionally, the burden is on the

plaintiff to prove that the premises owner knew or with the exercise of

reasonable care would have known of the harmful condition or was

responsible for creating the harmful condition:

      [I]f the harmful transitory condition is traceable to the possessor
      or his agent's acts, (that is, a condition created by the possessor
      or those under his authority), then the plaintiff need not prove
      any notice in order to hold the possessor accountable for the
      resulting harm. In a related context, where the condition is one
      which the owner knows has frequently recurred, the jury may
      properly find that the owner had actual notice of the condition,
      thereby obviating additional proof by the invitee that the owner
      had constructive notice of it. Where, however, the evidence
      indicates that the transitory condition is traceable to persons
      other than those for whom the owner is, strictly speaking,
      ordinarily accountable, the jury may not consider the owner's
      ultimate liability in the absence of other evidence which tends to
      prove that the owner had actual notice of the condition or that
      the condition existed for such a length of time that in the
      exercise of reasonable care the owner should have known of it.

Myers v. Penn Traffic Co., 606 A.2d 926, 929 (Pa.Super. 1992) (quoting

Moultrey v. Great Atlantic & Pacific Tea Co., 422 A.2d 593, 596

(Pa.Super. 1980)).



regularly inspected the area where Mrs. Ketchum fell, and on the day in

question, it was inspected about thirteen minutes before the incident. N.T.,

8/19/13, at 47. There was no evidence adduced that Giant or its employees

created the harmful condition, i.e., put the candles on the floor, or that they

knew of the condition.   Thus, the Ketchums could not prevail unless they




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proved that Giant or its employees, with the exercise of reasonable care,

should have known of the condition. The jury did not so find.

      We note that the Pennsylvania Suggested Jury Instructions have not

been adopted as binding law by our Supreme Court.            Jeter v. Owens-

Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa.Super. 1998). However,

the jury instruction given by the trial court in this case, which was modeled

on the standard instruction, correctly stated Pennsylvania law regarding the

law applicable in premises liability negligence cases involving harm to a

business invitee.   Furthermore, beyond the legal content, we do not find

Pa.SSJI (Civ.) 18.40 to be unclear or confusing to a jury.

      Given that the court properly instructed the jury in accordance with

Pennsylvania law, we find no error.

      Judgment affirmed.

      Judge Ott joins the Memorandum.

      Judge Strassburger files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2014




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