Musnuff v. City of Philadelphia

639 A.2d 1322, 163 Pa. Commw. 120, 1994 Pa. Commw. LEXIS 144
CourtCommonwealth Court of Pennsylvania
DecidedMarch 31, 1994
StatusPublished
Cited by2 cases

This text of 639 A.2d 1322 (Musnuff v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Musnuff v. City of Philadelphia, 639 A.2d 1322, 163 Pa. Commw. 120, 1994 Pa. Commw. LEXIS 144 (Pa. Ct. App. 1994).

Opinion

NEWMAN, Judge.

Charles Musnuff (Musnuff) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) denying his motion for new trial. For the reasons which follow, we affirm.

Musnuff was injured on January 29, 1984, while ice skating at an outdoor skating rink owned and operated by the City of Philadelphia (City). On January 10, 1985, Musnuff filed a complaint against the City alleging that the City was negligent in, inter alia, failing to maintain the surface of the ice in a condition reasonably suited for ice skating, permitting a hazardous defect or hole in the ice to exist, and failing to make a reasonable inspection. Musnuff further alleged that as a direct result of the City’s negligence, one of his skates struck a defect or hole in the ice surface which caused him to fall and to sustain serious injuries.

The City filed an answer and new matter, asserting immunity under what is commonly referred to as the Political Subdivision Tort Claims Act (Act)1, assumption of the risk, and comparative and/or contributory negligence on the part of Musnuff.

A jury trial commenced and both parties presented evidence as to the condition of the [1323]*1323ice at the time of the incident, supervision of skaters by City employees, and the “hole” which allegedly caused Musnuff to fall. The jury returned a verdict in favor of the City. Specifically, the jury found that the City was negligent, but that this negligence was not a substantial factor in bringing about Mus-nuffs harm.2

Musnuff filed a motion for post-trial relief seeking a new trial. In his motion, Musnuff asserted that the trial court erred in instructing the jury on the issue of causation. Mus-nuff further asserted that the trial court erred in omitting a proposed jury instruction on the issue of concurrent causes, and the trial court erred in explaining the law under Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). By order dated January 29,1993, the trial court denied Musnuffs motion.

On appeal to this court, the following issues are presented: (1) whether the trial court erred in instructing the jury on the issue of causation; (2) whether the trial court erred in discussing the issue of assumption of the risk in its opinion denying Musnuffs motion for a new trial when the issue was not raised by the parties; and (3) whether the trial court erred in failing to grant judgment notwithstanding the verdict (JNOV).3

With respect to the first issue, Mus-nuff asserts that the jury, having found negligence, clearly would have found that negligence to be a substantial factor had it not been for the trial court’s incorrect instructions. Specifically, Musnuff asserts that the trial court erred in failing to charge the jury in accordance with Musnuffs proposed point for charge eighteen (18) concerning concurrent causes, and that the trial court’s charge on the issue of causation was not in accordance with our Supreme Court’s decision in Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992).

A trial court may reject a party’s requested point for charge so long as its charge is a complete and accurate statement of the relevant law. Volponi v. Borough of Bristol, 122 Pa.Commonwealth Ct. 192, 551 A.2d 657 (1988), petition for allowance of appeal denied, 522 Pa. 626, 564 A.2d 918 (1989). In determining whether jury instructions given by a trial court constitute reversible error, this court must review the charge in its entirety and determine whether those instructions have caused prejudicial error. Sacco v. City of Scranton, 115 Pa.Commonwealth Ct. 512, 540 A.2d 1370 (1988), petition for allowance of appeal denied, 524 Pa. 601, 568 A.2d 1251 (1989).

Musnuff asserts that the jury was entitled to be charged that so long as the City’s negligence was a substantial factor in causing the injuries, the City is liable. Therefore, Musnuff contends that the trial court committed reversible error in failing to charge the jury in accordance with his proposed point for charge eighteen (18), which provided as follows:

Where the negligent conduct of a defendant combines with other circumstances and other forces to cause the harm suffered by the plaintiff, the defendant is responsible for the harm, if its negligent conduct was a substantial contributing factor in bringing about the harm, even if the harm would have occurred without it.

Reproduced Record (R.R.) at 496a (Emphasis added).

[1324]*1324What Musnuffs argument seems to ignore, however, is the fact that the jury in this case answered, “No”, to the question, “Was the negligence of the City a substantial factor in bringing about the Plaintiffs injuries?” R.R. at 437a-438a. Thus, even under Musnuffs proposed charge, having found that the City’s negligence was not a substantial factor in bringing about Musnuffs injuries, the jury could not have found the City liable. Accordingly, the trial court’s failure to charge the jury in accordance with proposed jury instruction eighteen (18) was not prejudicial to Musnuff and cannot be considered reversible error. See Sacco (appellant’s alleged error in the trial court’s instruction to the jury regarding comparative negligence was harmless, in light of the fact that the jury never reached the question of appellant’s comparative negligence.)

Musnuff next asserts that the trial court committed reversible error in refusing to charge the jury on the issue of causation in accordance with the Supreme Court’s decision in Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992). The issue presented in Crowell was whether third-party non-criminal negligence could preclude joint-tortfeasor liability from being imposed on a governmental unit. The Supreme Court held that “the governmental unit can be subject to liability despite the presence of an additional tortfeasor if the governmental unit’s actions would be sufficient to preclude it from obtaining indemnity from another for injuries rendered to a third person.” 531 Pa. at 407, 613 A.2d at 1184.

While discussing the proposed points for charge with the trial court, Musnuffs counsel stated, “Plaintiff has not placed nor had [sic] defendant placed any evidence into this record to suggest to the jury that it was the act of a third party [that caused Musnuffs injuries]” R.R. at 300a. Counsel continued, stating, “There was testimony as to the figure skaters, but we did not suggest to the jury that the point of the ease was that someone else caused the defect.” Id.

Moreover, we note that in his reply brief Musnuff states, “In [this] case the negligence of the City was not merely imputed or constructive. There was no other responsible party. If there had been, assuredly the City would have raised this defense.... Rather, the operative negligence was of the City’s own employees who did not maintain and monitor the ice.” Appellant’s Reply Brief at 7.

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639 A.2d 1322, 163 Pa. Commw. 120, 1994 Pa. Commw. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musnuff-v-city-of-philadelphia-pacommwct-1994.