Gustison v. Ted Smith Floor Products, Inc.

679 A.2d 1304, 451 Pa. Super. 442, 1996 Pa. Super. LEXIS 2135
CourtSuperior Court of Pennsylvania
DecidedJuly 15, 1996
StatusPublished
Cited by5 cases

This text of 679 A.2d 1304 (Gustison v. Ted Smith Floor Products, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gustison v. Ted Smith Floor Products, Inc., 679 A.2d 1304, 451 Pa. Super. 442, 1996 Pa. Super. LEXIS 2135 (Pa. Ct. App. 1996).

Opinion

MONTEMURO, Judge*:

This appeal lies from a judgment in favor of the defendants in a personal injury case.

On July 26, 1990, Ruby Gustison tripped and fell on a public sidewalk in West Reading, Pennsylvania. The sidewalk abutted two commercial properties: Gerald Rapp’s insurance agency, (Gerald Rapp d/b/a/ State Farm Insurance Company) and A to Z Vacuum Cleaners, which leased the property from Ted Smith Floor Products, Inc. At or near the property line, the sidewalk consisted of two adjoining slabs of concrete, of which one was approximately two and one-half inches higher than the other. Appellants Ruby and Robert Gustison instituted a negligence action against Ted Smith Floor Products, Inc., A to Z Vacuum Cleaners and Gerald Rapp, claiming that Mrs. Gustison caught her foot on the elevated slab, and that the ensuing fall caused severe and permanent injuries to her back and hand necessitating three surgeries and extensive treatment. State Farm Insurance Company was also named as defendant under a theory of respondeat superior.

Prior to submitting the case to the jury, the trial court entered a nonsuit in favor of State Farm. The jury found no negligence on the part of Ted Smith Floor Products and A to Z, and despite concluding that Rapp was negligent, determined that his negligence was not a substantial factor in causing Ruby Gustison’s injuries. We affirm.

Appellant raises eleven issues on appeal which we will address seriatim, albeit not in the order presented:

1. Did the trial court err in curtailing plaintiffs cross-examination of defendants’ medical expert concerning his disagreement with the opinions of plaintiffs treating physician?
2. Did the trial court err in permitting defendants’ medical expert to read into the record hearsay opinions, where the expert used such hearsay information solely to bolster his own testimony and acted as a mere conduit of extrajudicial sources?
3. Did the trial court err in refusing to permit the rebuttal testimony of Edgar Lloyd, M.D.?
4. Did the trial court err in denying plaintiffs treating orthopedic physician the opportunity to testify?
5. Did the trial court err in refusing to give the requested standard jury instruction on prior conditions, set forth at Pa. SSJI (Civ) Section 6.30?
6. Did the trial court err in refusing to give the requested standard jury instruction on concurring causes, set forth at Pa. SSJI (Civ) Sections 3.26, 3.27 and 3.29?
7. Did the Trial Court err in instructing the jury that the defective condition causing the plaintiffs injuries must have existed on property owned or occupied by only one of the defendants, and that if plaintiff could prove to the jury upon whose property the condition existed, then the jury could find that defendant, and only that defendant, causally negligent, contrary to Pa. SSJI (Civ) Section 3.26?
8. Did the trial court err in refusing to permit plaintiff’s medical experts to state their disagreement with the opinions given by defendants’ expert concerning the extent of the plaintiffs injuries and their causal relationship to the accident?
9. Did the trial court err in its distribution of peremptory challenges by granting the plaintiffs a total of only four peremptory challenges, contrary to Pa.R.C.P. 221, while granting the defendants a total or twelve peremptory challenges?
10. Did the trial court err in excluding the testimony of a contractor who repaired the sidewalk on which plaintiff fell, thereby denying plaintiffs the opportunity to present evidence establishing ownership and control of the specific area where plaintiff was injured, responsibility for repairing such area, and the feasibility of prior repairs to such area, where such responsibility and feasibility had been specifically denied by defendants in answers to plaintiffs’ requests for admission?
Retired Justice assigned to Superior Court.
[1308]*130811. Did the trial court err in granting a nonsuit in favor of Defendant State Farm, where there was substantial evidence in the record from which a jury could find State Farm legally responsible for the acts or omissions of its agent, Defendant Gerald Rapp?

Our standard of review in determining whether a trial court erred in denying a new trial is whether the court committed an error of law controlling the outcome of the case, or a comparable abuse of discretion when the ruling turns on the weight of the evidence. Wasserman v. Fifth & Reed Hosp., 442 Pa.Super. 563, 575-76, 660 A.2d 600, 607 (1995).

Appellants’ first issue concerns their ability to cross-examine Dr. Ellis Friedman, the defendants’ expert witness. Like all the expert medical testimony in the case, Dr. Friedman’s testimony, the only evidence presented by the defense, was delivered via videotape. A transcript of the testimony was also entered into evidence. Appellants claim that the trial court improperly curtailed their cross-examination of Dr. Friedman concerning his disagreement with Appellants’ experts, his failure to mention that Mrs. Gustison had two chipped teeth, and how much compensation he received for testifying.

The scope and manner of cross-examination are within the trial court’s discretion, and that discretion will not be disturbed absent its abuse or an error of law. Commonwealth v. Wilson, 538 Pa. 485, 506, 649 A.2d 435, 445 (1994), cert. denied, — U.S.-, 116 S.Ct. 145, 133 L.Ed.2d 91 (1995). In presenting their claims, Appellants refer to page numbers of the transcript of Dr. Friedman’s videotaped testimony, which shows handwritten “X”s crossing out portions of the testimony. These are, presumably, the portions excised from the videotape at the trial court’s behest and kept from the jury. However, there is nothing, no indication on the transcript itself and none in Appellants’ Brief, to indicate the legal reason for the deletion, or any objection on Appellant’s part at the time which would have elicited the trial court’s explanation for its rulings. Appellants argue that no such specific objections were necessary because the trial court gave them an automatic exception to any adverse decision. However, it is clear that the trial court offered this expedient for the limited purpose of avoiding interruptions while defense counsel read into the record rulings on a motion in limine. The trial court did not intend that Appellants could avoid noting their exceptions on the record throughout the entire trial. In fact, a review of the trial transcript demonstrates that the parties made objections at trial.

The docket reveals that a pre-trial conference was held on February 23, 1993, when, we may surmise, the evidentiary matters now complained of were resolved. However, there is no transcript of that hearing in the official record. It is Appellants’ burden to provide a sufficient record to guide the appellate court in its examination of the issues raised. Appellants’ failure to provide such a record and argument for the instant claim substantially hinders our ability to address this issue, which is, accordingly, waived. See Pa.R.A.P. 2117(c), 2119; Smith v. Penbridge Assocs., Inc.,

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Bluebook (online)
679 A.2d 1304, 451 Pa. Super. 442, 1996 Pa. Super. LEXIS 2135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gustison-v-ted-smith-floor-products-inc-pasuperct-1996.