Mizenko v. McDonald's Restaurants of Pennsylvania, Inc.

25 Pa. D. & C.5th 477, 2012 Pa. Dist. & Cnty. Dec. LEXIS 221
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedApril 19, 2012
DocketNo. 08-0574
StatusPublished

This text of 25 Pa. D. & C.5th 477 (Mizenko v. McDonald's Restaurants of Pennsylvania, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mizenko v. McDonald's Restaurants of Pennsylvania, Inc., 25 Pa. D. & C.5th 477, 2012 Pa. Dist. & Cnty. Dec. LEXIS 221 (Pa. Super. Ct. 2012).

Opinion

NANOVIC, PJ,

Before us is plaintiff’s post-trial motion following a jury verdict in favor of defendant. In his motion, plaintiff claims we erred in what we instructed the jury (i.e., the standard of care applicable to children) and in what we failed to [479]*479instruct (i.e., spoliation), and further erred in excluding expert testimony which plaintiff sought to present and in denying plaintiff’s request to call certain former employees of defendant as of cross-examination. Each of these issues will be discussed in the order advanced by plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

On October 30, 2005, the plaintiff, Eugene Mizenko (“Mizenko”), and his friend, Stephen O’Firer, pulled into the parking lot of a McDonald’s restaurant located along Blakeslee Boulevard in Lehighton, Carbon County, Pennsylvania, to ask directions to a destination they were going to in neighboring Schuylkill County. Both were driving motorcycles. After receiving directions from a patron at McDonald’s, and while driving through the parking lot the same way they had entered, Mizenko hit his brakes and fell to the ground, sustaining injuries. According to Mizenko, the cause of his fall was a wet greasy substance, like black ice, on the surface of the parking lot, which caused him to skid and lose control.

Shortly before the accident, Charles Shafer (“Shafer”), an employee of McDonald’s, had emptied the contents of a shop vac onto the lot near the area where Mizenko fell. In dispute among other issues was whether Shafer knew or should have known the contents of the shop vac, which contained not only dirty water and rocks, but also grease. The shop vac was used to clean the floors at the restaurant, including, at times, cleaning grease around the cooking areas. Also in dispute was whether [480]*480Mizenko’s conduct contributed to his fall. According to McDonald’s, based upon a deposition later given by O’Firer, after receiving the patron’s directions, Mizenko gunned the engine of his motorcycle, accelerated through the parking lot, and had to suddenly stop to avoid hitting another vehicle exiting a parking space.

As a result of the accident, Mizenko filed a civil action in the Court of Common Pleas of Philadelphia County on June 29, 2006. In his complaint, Mizenko alleged negligence and recklessness against the defendant, McDonald’s Restaurant of Pennsylvania, Inc. (“McDonald’s”), and sought compensatory, as well as punitive damages.1 On January 09, 2007, McDonald’s filed an answer with new matter, which denied all material averments of the complaint, and alleged, among other defenses, comparative negligence. Mizenko replied to the new matter on January 29, 2007.

Several months later, on June 13, 2007, McDonald’s filed a petition to transfer venue based on forum non conveniens. McDonald’s request was granted by order dated July 30, 2007, with the transfer to this court being completed on March 10, 2008.

A jury trial began on February 7, 2011, and ended on February 18, 2011, when a verdict was rendered in favor of McDonald’s and against Mizenko.2 On February [481]*48125, 2011, Mizenko filed the instant post-trial motion, seeking judgment notwithstanding the verdict and a new trial.3 For the reasons which follow, we deny Mizenko’s motion in full.

DISCUSSION

We begin with our standard of review. In Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000), our Supreme Court explained that

[tjhere is a two-step process that a trial court must follow when responding to a request for new trial. First, the trial court must decide whether one or more mistakes occurred at trial. These mistakes might involve factual, legal, or discretionary matters. Second, if the trial court concludes that a mistake (or mistakes) occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. The Harmless Error Doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has [482]*482suffered prejudice from the mistake.

Id. at 1122 (citations omitted). With this standard in mind, we address each of Mizenko’s claimed errors.

A. Child Standard of Care

Mizenko argues first that we erred in charging the jury under Pennsylvania Suggested Standard Instruction 3.12 (now numbered as 13.130), the standard of care applicable to children, in evaluating Shafer’s conduct.

Shafer was 17 years old at the time of the accident. In judging his conduct, McDonald’s requested that we instruct the jury on the standard of care applicable to children, which we did over Mizenko’s objection. (N.T. 02/17/11, pp. 139-40).

On this issue, the instruction given was as follows:

In this case, you are concerned with the care taken or not taken by Charles Shafer, who was 17 years old at the time of the accident. The law does not hold children to the same standard of care as adults. A child is required to exercise the ordinary care appropriate for a child. Specifically, he or she is held to that measure of care that other children of the same age, experience, capacity, and development would ordinarily exercise under similar circumstances.
In applying this standard, the law has placed children of different ages in different categories. Once a child has reached the age of 14, the law presumes that he or she has the capacity to appreciate danger and to exercise [483]*483care. With respect to a child 14 years of age or over, and Mr. Shafer was 17 years old, the law puts upon him or her the burden of showing lack of intelligence, prudence, foresight, or restraint such as is usual in those of his or her age.

(N.T. 2/17/11, pp. 168-9).4 This instruction was accompanied by the following instruction on vicarious liability:

In this case, it is admitted that Charles Shafer was at the time of the occurrence acting as an employee of McDonald’s and was engaged in furthering the interest, activities and affairs or business of McDonald’s. McDonald’s is liable for the negligence or recklessness of its employees occurring while the employee is acting in the course and within the scope of his employment.
Therefore, if you find Charles Shafer was either negligent or reckless in emptying the contents of the shop vac onto McDonald’s parking lot, then you must also find McDonald’s to have been equally negligent or reckless.

(N.T. 02/17/11, pp. 171-2).

[484]*484Mizenko argues that, as a corporation, McDonald’s should not reap the benefit of a child standard forjudging conduct for which it can be held responsible.

This echoes Mizenko’s argument at the time of trial that the intent of instruction 13.130 is to protect a child from liability under an adult standard, not to provide a shield to a corporate defendant who has hired a child. (N.T. 02/17/11, pp. 142-43, 208-209).

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Bluebook (online)
25 Pa. D. & C.5th 477, 2012 Pa. Dist. & Cnty. Dec. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mizenko-v-mcdonalds-restaurants-of-pennsylvania-inc-pactcomplcarbon-2012.