Fullam v. Miller Bros.

33 Pa. D. & C.5th 101
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJuly 22, 2013
DocketNo. 00987
StatusPublished

This text of 33 Pa. D. & C.5th 101 (Fullam v. Miller Bros.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fullam v. Miller Bros., 33 Pa. D. & C.5th 101 (Pa. Super. Ct. 2013).

Opinion

SMITH, J.,

Procedural History

On February 8, 2010 the plaintiff filed a complaint for personal injuries sustained on February 19, 2008. A jury found the plaintiff 85% negligent and the defendant 15% negligent on October 4, 2012. Therefore, a verdict was entered in favor of the defendant.

Prior to trial, the plaintiff filed a motion in limine to preclude any reference to or evidence of Vicodin/narcotic medication consumption. The court granted the motion on October 1, 2012.1 On October 1, 2012, the plaintiff made an oral motion in limine to preclude evidence concerning how she obtained the names of her treating doctors, which was denied by the court.2 Plaintiff also made an oral motion in limine to preclude references to the fact that plaintiff injured her left foot (in this case, she injured her right foot) when she was 17, which was granted.3

Defense counsel sought to elicit testimony that the plaintiff had health insurance that would cover future medical expenses.4 The court denied this request.5 On cross, defense counsel asked the plaintiff whether her health insurance paid for her past medical expenses.6 Plaintiff’s counsel did not object.7 This court instructed the jury not to consider any comments made regarding [104]*104the fact that plaintiff may have had health insurance as evidence in the case.8

The court instructed the jury that the defendant had a duty of reasonable care rather than as an occupier to a public invitee. Plaintiff agreed general negligence was preferable to an instruction defining plaintiff as a licensee, but noted an objection.9 The court also instructed the jury that the plaintiff had a choice of ways, which plaintiff objected to.10 The plaintiff filed a timely post-trial motion on October 12, 2012.11 The motion was denied on November 30, 2012. This appeal follows.

Factual Flistory

On February 19,2008, plaintiff sustained injuries when she fell into a hole that was partially covered by a metal plate at the intersection of 34th and Market Streets.12 Plaintiff testified that she did not see the hole, and that it was located in the cross-walk where she was directed to walk.13 The defendant’s witnesses testified that plaintiff walked right into the clearly cordoned off construction zone despite signs that explicitly directed pedestrians where to walk.14 [105]*105The construction project was “enormous.”15 Plaintiff drove past the construction site every morning before work.16 Plaintiff saw the barrels, cones, and tape that were blocking pedestrians from crossing on Market Street and she saw the “sidewalk closed” sign directing pedestrians to a clear pathway.17 The only way to get into that area was to go over or under the caution tape.18 Although she was aware of and saw all the construction activity, she chose not to take an alternative route despite the fact that there were available alternative ways.19 The defendant’s witnesses testified that they followed all applicable safety standards to ensure the safety of the site.20 Hundreds or thousands of pedestrians had walked that intersection from 7:00 a.m. until noon when the Plaintiff fell on the date of the incident.21

Mr. Puglizse, a foreman for Miller Brothers, witnessed the plaintiff walk around the backhoe that was within the construction zone, climb over a pile of dirt and fall.22 When [106]*106the plaintiff fell, Mike Miller, Vice-President of Miller Brothers,23 and Mr. Puglizse came to her side to offer assistance. Plaintiff refused medical help and did not want an ambulance because she had a dentist appointment she did not want to miss.24 Miller and Puglizse testified that the plaintiff was disoriented, and that plaintiff told them she was on painkillers for her tooth.25 Plaintiff testified that she had only taken ibuprofen prior to the fall.26

Plaintiff’s husband picked her up from her dentist’s office and took her to the emergency room at Chestnut Hill Hospital.27 Plaintiff injured her right foot (a fifth metatarsal base fracture).28 She had one visit to a podiatrist at Chestnut Hill Hospital for the injury to her foot, but discontinued care with him because he was not [107]*107on her health insurance plan.29 Subsequently she saw Dr. Shannon at Penn-Presbyterian until August of 2008 when she reached maximum improvement.30 Although she felt initial improvement, after about a year her foot started to feel worse and she experienced difficulty walking distances and exerting pressure on it.31 Her attorney gave her a list of physician names, and she selected Dr. Schoenhaus.32 Dr. Shoenhaus treated the plaintiff and recommended future surgeiy.33 She had health insurance, which had paid her past medical bills with the exception of some out of pocket expenses such as co-pays.34

Discussion

I. Legal Standard

Plaintiff avers that a new trial is warranted because various errors took place during the course of trial. A new trial may be granted when “the verdict is against the weight of the evidence,” but “only where the verdict is so contrary to the evidence it shocks one’s sense of justice.”35 Additionally, “[t]he harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred [108]*108during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.”36

A. Motion to Preclude References to Plaintiff’s Prior Injuries

As a threshold matter, “remarks by counsel may constitute grounds for a mistrial,” however, “such remarks must be beyond correction by any admonition which the court may give the jury.”37 Furthermore, comments that counsel makes do not warrant a new trial when they were “neither inflammatory nor prejudicial.”38 There are occasions when counsel’s comments are beyond curative instruction and a mistrial is the only recourse to “obliterate the taint.”39

Plaintiff cites to Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007) and Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998) for the proposition that a violation of an order on a motion in limine is grounds for a mistrial and also for a new trial when raised in post-trial motion. In Poust, the court granted the appellant’s “motion in limine [109]

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Bluebook (online)
33 Pa. D. & C.5th 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fullam-v-miller-bros-pactcomplphilad-2013.