Kearton v. Quaker City Auctioneers Inc.

3 Pa. D. & C.5th 60
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedDecember 19, 2007
Docketno. 3463
StatusPublished

This text of 3 Pa. D. & C.5th 60 (Kearton v. Quaker City Auctioneers Inc.) 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
Kearton v. Quaker City Auctioneers Inc., 3 Pa. D. & C.5th 60 (Pa. Super. Ct. 2007).

Opinion

PAPALINI, J,

Plaintiff Jack G. Kearton filed an appeal for post-trial relief and for new trial on damages.

Defendant Quaker City Auctioneers filed an appeal for post-trial relief in the form of a judgment n.o.v.

Plaintiff Kearton and defendant Quaker City Auctioneers have each filed an appeal of our order of September 27, 2007, denying their motions for post-trial relief.

[62]*62I. FACTS

[On February 23,2007, an involuntary directed verdict granted in favor of additional defendants, Gloria M. Satriale, trustee of estate of French Creek Millwork and the estate of French Creek Millwork Inc.]

On August 27, 2003, plaintiff attended a bankruptcy auction being held to liquidate the personal property of French Creek Millwork located at 735 Fox Chase in Coatesville. The auction was being conducted by defendant Quaker City within an industrial warehouse which French Creek had leased to be the site of its operations. While standing in an aisle way, plaintiff was hit by an object on the back of the left knee. Plaintiff testified that he had no idea what struck him or why.

Plaintiff called two witnesses to establish liability. Plaintiff called his ex-girlfriend, Maria Press, and his former business partner, Ed Brigante.

Ms. Press testified that she saw three or four 12-foot long poles clearly visible leaning in a comer of the wall. There were approximately 15 to 20 people in the area. After standing in the vicinity of the poles for some time, she observed a gentleman go into the area where the poles were situated and moments later, one of them fell and bounced off the floor and into the back of plaintiff’s left knee.

Mr. Brigante testified that he also observed these poles leaning against the wall. The rods were not an item tagged for auction sale. After about five to 10 minutes in the area, Mr. Brigante was struck on the left wrist from behind by a falling rod. The rod then deflected off of him and struck plaintiff on the back of the left knee. He observed someone moving away from the area where the rod was immediately after the incident.

[63]*63II. PROCEDURAL HISTORY

(1) Plaintiff Kearton brought suit against the defendant Quaker City as a result of his lower back and knee injuries sustained after plaintiff was hit in the back of his left leg from a rod that fell over while plaintiff was attending a bankruptcy auction on August 27, 2003.

(2) Plaintiff filed suit on March 30,2005, alleging that defendant was liable for failing to maintain the premises on which the auction was being held.

(3) Trial commenced on February 9, 2007, and a jury verdict for plaintiff and against defendant in the amount of $47,119.55 was returned on February 23, 2007.

(4) Plaintiff now seeks post-trial relief and a new trial as to damages.

(5) Plaintiff filed amotion for delay damages, pursuant to Pennsylvania Rule of Civil Procedure 238 in the amount of $2,931.

(6) Defendant moved for directed verdict at the close of the evidence, which was denied. Pa.R.C.P. §226(b).

(7) Defendant filed a post-trial motion and seeks a judgment n.o.v. arguing that, based on the facts presented at trial, plaintiff should not recover.

(8) Plaintiff Kearton and defendant Quaker City Auctioneers have each filed an appeal of our order of September 27,2007, denying their motions for post-trial relief.

III. ISSUES

A. Plaintiff Kearton Raises the Following Issues on Appeal

(1) The court erred by requiring that question no. 4 of the jury instructions be worded as it was, specifically as [64]*64to whether the left total knee replacement surgery “was caused” by this incident.

(2) The issue for the jury was not whether this incident “caused” plaintiff’s left total knee replacement; rather, the issue was whether this incident was “a factual cause” of plaintiff’s left knee replacement since plaintiff’s left knee was arthritic and would have needed a total knee replacement within two years of the time of this incident had the accident not happened.

(3) The court erred in not submitting the following proposed jury verdict question no. 5, which asked “do you find that Mr. Kearton was required to undergo left total knee replacement surgery sooner than he otherwise may have had to because of this incident?”

(4) The court erred by not charging the jury on plaintiff’s proposed points for charge nos. 8 and 9, as to legal liability for aggravation of a pre-existing condition.

(5) The jury’s award of $47,119.55 was manifestly against the weight of the evidence because plaintiff suffered a herniated disc in his back, radiating pain, and need for significant treatment.

B. Defendant Quaker City Auctioneers Raises the Following Issues on Appeal

(1) In order to impose liability on a possessor of land, a plaintiff must present evidence tending to prove that the possessor deviated from some “standard of care.”

(2) There was no evidence presented at trial that defendant Quaker City created a dangerous condition, or likewise, that it knew or should have known of any dangerous condition.

(3) Plaintiff presented two liability witnesses at trial, and they admitted to not knowing why the rod fell over.

[65]*65(4) In the absence of any evidence as to what caused the pole to fall, the jury was left to speculate as to why it may have done so, and moreover, to speculate about how Quaker City may have breached any duty owed.

IV. DISCUSSION

A. Plaintiff’s Appeal for New Trial on Damages

1. Wording of the Jury Verdict Sheet — Question No. 4

Plaintiff’s appeal that he is entitled to a new trial on damages should be denied because his objections to the wording of the jury verdict sheet have been waived for failure to make timely objections. Plaintiff contends that we erred in requiring that question no. 4 be worded as it was, specifically as to whether the left total knee replacement surgery “was caused” by this incident, and that the plaintiff objected to this wording. Plaintiff argues that the issue for the jury was not whether this incident “caused” plaintiff’s left knee replacement; rather, the issue was whether this incident was “a factual cause” of plaintiff’s need for knee replacement surgery. Plaintiff states that this distinction in wording was critically important given that plaintiff’s left knee was arthritic (and yet completely functional prior to this incident, as admitted by defendant’s medical expert), but would in all likelihood eventually need to be replaced at some point in the future.

It is “axiomatic that, in order to preserve an issue for review, litigants must make timely and specific objections during trial and raise the issue in post-trial motions.” Harman ex rel. Harman v. Borah, 562 Pa. 455, 471, 756 A.2d 1116, 1124 (2004). The reason timely and specific [66]*66objections at trials are necessary is to provide the trial court with an opportunity to correct any alleged trial error at the earliest opportunity. Id.

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Bluebook (online)
3 Pa. D. & C.5th 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kearton-v-quaker-city-auctioneers-inc-pactcomplphilad-2007.