FERGUSON v. PATHMARK et al

Filing 44

MEMORANDUM. SIGNED BY HONORABLE JOHN R. PADOVA ON 12/16/2013. 12/16/2013 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BARBARA FERGUSON
v.
THE GREAT ATLANTIC & PACIFIC
TEA CO., INC., ET AL.

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CIVIL ACTION

NO. 13-778

MEMORANDUM
Padova, J.

December 16, 2013

Plaintiff Barbara Ferguson was injured when she tripped over a box that was being used to
prop open an office door at a Pathmark supermarket. She brought this negligence action against
Defendants The Great Atlantic & Pacific Tea Co., Inc. and Pathmark Stores, Inc., alleging that
Defendants had created and maintained a dangerous condition. On July 17, 2013, a jury returned
a verdict in favor of Ms. Ferguson and found her to have suffered $834,703.33 in damages.
Defendants have now filed a Motion for Judgment Notwithstanding the Verdict or, in the
Alternative, a Motion for Post-Trial Relief in the form of a New Trial or Remittitur. For the
following reasons, we deny the Motion in its entirety.
I. BACKGROUND
On January 24, 2011, Ms. Ferguson, who was 68 years old, visited a Pathmark supermarket
in her capacity as a sales representative for General Mills. (N.T. 7/16/13 at 47-49.) In the course
of her work that day, she went to a back office of the Pathmark store, called the “scan office.” (Id.
at 49.) The door of the scan office was propped open with a white printer paper box, which was
filled with white paper.1 (Id. at 102-04, 114-115; see also Trial Ex. P-2.) When Ms. Ferguson
exited the office after conducting her business there, her left leg hit the box and she fell to the
1

Although the record does not appear to contain the precise dimensions of the box,
Defendants state in their Motion that the box “was approximately 1’ x 1 ½’ wide and
approximately 1’ high.” (Defs.’ Mot. ¶ 12.)

ground. (N.T. 7/16/13 at 52-53.) She fractured her shoulder in four places and also fractured her
kneecap. (Bonner Dep. Tr. at 15-16, 24.) She subsequently had major surgery on her shoulder.
(Id. at 16-17.) As a result of her injuries from the fall, Ms. Ferguson can no longer work or drive,
and she continues to suffer from persistent pain in her shoulder. (Id. at 15, 23, 28.)
The jury returned a verdict in favor of Ms. Ferguson on her negligence claim. It found
Defendants to be 95% causally negligent and Ms. Ferguson to be 5% causally negligent. The jury
further found the dollar amount of Ms. Ferguson’s damage to be $834,703.33. We molded the
verdict to account for the parties’ relative causal negligence, and entered judgment in Ms.
Ferguson’s favor in the amount of $792,968.16. Defendants previously moved for judgment as a
matter of law at the close of the Plaintiff's evidence and moved again at the end of the trial, and
they now move pursuant to Federal Rule of Civil Procedure 50(b) for judgment as a matter of law
or, in the alternative, for either a new trial or remittitur pursuant to Federal Rule of Civil Procedure
59.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 50(b) governs the renewal of a motion for judgment as a

matter of law. Fed. R. Civ. P. 50(b). It provides in pertinent part as follows:
No later than 28 days after the entry of judgment . . . the movant may file a
renewed motion for judgment as a matter of law and may include an
alternative . . . request for a new trial under Rule 59. In ruling on a
renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Id. The United States Court of Appeals for the Third Circuit has instructed that “judgment as a
2

matter of law should be granted sparingly.” Eshelman v. Agere Systems, Inc., 554 F.3d 426, 433
(3d Cir. 2009). Indeed, we are to grant a Rule 50(b) motion “only if, viewing the evidence in the
light most favorable to the nonmovant and giving it the advantage of every fair and reasonable
inference,” we find that “there is insufficient evidence from which a jury reasonably could find
liability.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 n.8 (3d Cir. 2009). Evidence is
insufficient for this purpose “where ‘the record is critically deficient of the minimum quantum of
evidence’ in support of the verdict.” Eshelman, 554 F.3d at 433 (quoting Gomez v. Allegheny
Health Servs., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995)). “In determining whether the evidence is
sufficient to sustain liability, [we] may not weigh the evidence, determine the credibility of
witnesses, or substitute [our] version of the facts for the jury’s version.” Fowler, 587 F.3d at 213
n.8 (citing Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir. 1992)).
Federal Rule of Civil Procedure 59 governs motions for new trials. Fed. R. Civ. P. 59. It
provides, in relevant part, as follows:
The court may, on motion, grant a new trial on all or some of the
issues – and to any party – as follows:
(A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court . . . .
Fed. R. Civ. P. 59(a)(1). Pursuant to this rule, we may, “in the exercise of discretion, . . . grant a
new trial if, inter alia, the jury’s verdict was against the weight of the evidence, or if substantial
errors occurred in the admission or exclusion of evidence or in the charge to the jury.’” Shrey v.
Kontz, Civ. A. No. 10-1420, 2013 WL 5961092, at *12 (M.D. Pa. Nov. 7, 2013) (quoting Kidd v.
Commonwealth of Pa., Bureau of Liquor Control Enforcement, Civ. A. No. 97-5577, 2001 WL
1159770, at *1 (E.D. Pa. Aug 21, 2001)). Our “latitude in ruling on [a] motion [for a new trial] is
3

especially broad when the grounds asserted in the motion concern matters that initially rested
within [our] discretion.” Jacobson ex rel. Jacobson v. BMW of N. America, LLC, 376 F. App’x
261, 264 (3d Cir. 2010) (citing Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993)).
“When the basis for the motion is an alleged error on the part of the court, such as an error in jury
instructions or evidentiary rulings, [we] must first determine whether an error was made, i.e.,
‘whether, taken as a whole, the instruction properly apprised the jury of the issues and the
applicable law.’” Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., Civ. A. No. 09-290, 2013
WL 5332108, at *15 (W.D. Pa. Sept. 23, 2013) (quoting Donlin v. Philips Lighting N. Am. Corp.,
581 F.3d 73, 78 (3d Cir. 2009)). “If there was an error, the court must then determine ‘whether
that error was so prejudicial that refusal to grant a new trial would be inconsistent with substantial
justice.’” Id. (quoting Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600, 601 (E.D. Pa.
1989)).
Our discretion to grant a new trial is more limited when the asserted ground is that the
verdict is against the weight of the evidence. In that instance, we may only grant a new trial
“‘when the record shows that the jury’s verdict resulted in a miscarriage of justice or where the
verdict, on the record, cries out to be overturned or shocks our conscience.’” Grazier ex rel.
White v. City of Philadelphia, 328 F.3d 120, 128 (3d Cir. 2003) (quoting Williamson v. Consol.
Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)). Moreover, where, as here, “the subject matter of
the litigation is simple and within a layman’s understanding, [we are] given less freedom to
scrutinize the jury’s verdict than in a case that deals with complex factual determinations . . . .”
Williamson, 926 F.2d at 1352. In reviewing a motion for a new trial, we must “view[] the record
evidence in the light most favorable to . . . the verdict winner, and draw[] all reasonable inferences
4

in his favor.” Pitts v. Delaware, 646 F.3d 151, 155 (3d Cir. 2011).
III.

DISCUSSION
In seeking both judgment notwithstanding the verdict pursuant to Rule 50 and a new trial

pursuant to Rule 59, Defendants argue that the evidence at trial was legally insufficient to support
a finding that they were negligent and that, even if it were sufficient to support a negligence
finding, the evidence was not sufficient to support a finding that Ms. Ferguson herself was less
than 51% negligent. Defendants also seek a new trial pursuant to Rule 59 on the grounds that (1)
we erred in admitting certain expert testimony, and (2) the jury instruction regarding the duty a
possessor of land owes to invitees was confusing. Finally, Defendants seek remittitur pursuant to
Rule 59(e). We reject all of these arguments.
A.

Sufficiency of the Evidence
1.

Defendants’ negligence

Defendants argue that they are entitled to judgment notwithstanding the verdict or a new
trial because the trial evidence unequivocally established that the box on which Ms. Ferguson
tripped was a “known and obvious” danger and, under Pennsylvania law, a defendant cannot be
found negligent for a danger that is “known and obvious.” However, Defendants’ argument not
only ignores the record evidence that supports a reasonable conclusion that the box on which Ms.
Ferguson tripped was not “known and obvious,” but is also grounded on a misstatement of
Pennsylvania law, which, under certain circumstances, imposes liability even where a danger is
known and obvious.
Under Pennsylvania law concerning business visitors, “possessors of land owe a duty to
protect invitees from foreseeable harm.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983)
5

(citation omitted). A possessor of land is subject to liability to a visitor if he (1) knows or has
reason to know that a condition on the land poses an unreasonable risk of harm to invitees, (2)
should expect that visitors will not discover or realize the danger, or will fail to protect themselves
against the danger, and (3) fails to exercise reasonable care to protect visitors from the danger. Id.
(citing Restatement (Second) of Torts § 343). As a corollary to this rule of liability, “‘[a]
possessor of land is not liable to his invitees for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious to them unless the possessor should
anticipate the harm despite such knowledge or obviousness.’” Id. at 124 (quoting Restatement
(Second) of Torts § 343A) (additional citations omitted). “A danger is deemed to be ‘obvious’
when ‘both the condition and the risk are apparent to and would be recognized by a reasonable
man, in the position of the visitor, exercising normal perception, intelligence and judgment.’” Id.
at 123-24 (quoting Restatement (Second) of Torts § 343A cmt. b). “For a danger to be ‘known,’ it
must ‘not only be known to exist, but . . . also be recognized that it is dangerous and the probability
and gravity of the threatened harm must be appreciated.’”2 Id. at 124 (alteration in original)
(quoting Restatement (Second) of Torts § 343A cmt. b).
Here, Defendants argue that the dangerous condition that the box created was “obvious”
because the box was in plain sight, and was not hidden around a corner, covered or concealed.
They rely on evidence admitted at trial that Ms. Ferguson had to travel approximately fifteen feet
down a straight hallway to reach the scan office; that the box was on the floor and “jutted out” into
the hall; and that Ms. Ferguson had no difficulty entering the scan office.

(Defs.’ Mot. ¶ 49.)

Defendants ignore, however, the ample evidence at trial from which a jury could conclude that the
2

We instructed the jury at trial as to these definitions of “known” and “obvious.” (N.T.
7/17/13 at 24.)
6

dangerous condition created by the box was not “known and obvious.” Not only did Ms.
Ferguson testify that she did not see the box on her way into the pricing office (N.T. 7/16/13 at 49),
but, in addition, there was evidence that there was a lack of color contrast between the box and the
floor, because both were white. (N.T. 7/15/13 at 51; N.T. 7/16/13 at 114-15.) Indeed, the
photographs on which Defendants relied at trial made clear that the white box was camouflaged by
the white flooring. (See, e.g., Trial Ex. P2.) Furthermore, as is apparent from the photographs,
the box was well below eye level and intruded upon the walkway from the office into the hallway.
(See id.) Accordingly, viewing the evidence and inferences in the light most favorable to Ms.
Ferguson, we find that the jury could have reasonably concluded that neither the box nor the risk it
posed would be apparent to, and recognized by, a reasonable visitor exercising normal perception,
intelligence and judgment. The jury also could have reasonably concluded that Ms. Ferguson did
not know that any danger existed. Thus, the jury could have reasonably concluded that the danger
that the box posed was neither known nor obvious, and we reject Defendants’ assertions to the
contrary.
Moreover, even assuming for the sake of argument that the only reasonable conclusion that
a jury could have drawn from the trial evidence was that the dangerous condition was “known and
obvious,” we reject Defendants’ argument that they could not be found liable for that known and
obvious condition. As the Pennsylvania Supreme Court made clear in Carrender, a “‘possessor of
land is not liable to his invitees for physical harm caused to them by any activity or condition on
the land whose danger is known or obvious to them, unless the possessor should anticipate the
harm despite such knowledge or obviousness.” 469 A.2d at 124 (quoting Restatement (Second)
of Torts § 343A) (emphasis added); see also Pa. Suggested Standard Jury Instructions (Civil) §
7

18.40 (“An [owner][occupier] of land is liable to invitees for any harm that the [owner][occupier]
should have anticipated, regardless of whether the danger is known or obvious.”). Thus, the law
is clear that a possessor of land will be liable to invitees for known and obvious dangers if it should
have anticipated the harm in spite of the known and obvious nature of the danger. Here,
Defendants ignore that they may be liable for a known or obvious condition if they should have
anticipated the harm, and thus do not address whether there is evidence on the record regarding
whether they should have anticipated Ms. Ferguson’s harm. Accordingly, even if no reasonable
jury could have concluded that the danger was not known and obvious, Defendants have not
established that they should be relieved of liability under Pennsylvania law.
For the above reasons, we deny Defendants’ Motion to the extent that it seeks judgment
notwithstanding the verdict or a new trial on the ground that the box was a known and obvious
danger.
2.

Ms. Ferguson’s comparative negligence

Defendants argue that, even if the evidence was sufficient to support a finding that they
were negligent, they are entitled to judgment notwithstanding the verdict or a new trial because the
evidence does not support the jury’s conclusion that Ms. Ferguson herself was less than 51%
negligent. According to Defendants, the evidence at trial demonstrated that Ms. Ferguson’s “own
negligence was the sole cause of her injuries.” (Defs.’ Mot. ¶ 62.) However, Defendants ignore
the significant trial evidence that supports the jury’s conclusions that Defendants were 95%
causally negligent and that Ms. Ferguson’s causal negligence was just 5%.
Among the evidence on which the jury could have reasonably based its conclusion
regarding Defendants’ causal negligence is the following. The manager of the Pathmark store,
8

Joseph Dougherty, testified at trial that, upon assuming a management role at Pathmark, he
received no specific fall prevention training. (N.T. 7/15/13 at 35.) He also testified that the store
in which Ms. Ferguson fell was supposed to have a safety committee, but did not. (Id. at 35-36.)
Mr. Dougherty nevertheless understood that a box placed on a floor in a walkway could be a
tripping hazard, and that aisles and walkways in the store should therefore be free of obstacles and
clutter. (Id. at 25-26.) At the same time, Mr. Dougherty knew that it was common practice for
store employees to use a box to prop open the door of the scan office. (Id. at 27.) He rationalized
this practice by explaining that the door’s automatic closing device would cause the door to swing
shut and lock if it was not propped open, and that the store had a limited number of keys that could
open the door, so that propping open the door was simply more convenient. (Id. at 27.) On the
other hand, Mr. Dougherty admitted that Defendants could have held the door open with small
rubber door stopper, which they could have purchased from a store such as Home Depot or
Lowe’s. (Id. at 33.)
In contrast, there was little evidence at trial on which to assess causal negligence against
Ms. Ferguson. Among other things, Ms. Ferguson testified that this was the first time that she had
been in this particular Pathmark store, and she denied that she was working on her “handheld”
rather than looking where she was going when she was walking out of the scan office. (N.T.
7/16/13 at 76, 79.) Defendants insist that Ms. Ferguson either saw the box upon entering the scan
office, because the approach to that office was a fifteen-foot straight hallway, or was negligent in
failing to see the box. However, Ms. Ferguson testified that she did not notice the box (id. at 49),
and the jury could have reasonably found that Ms. Ferguson was not negligent in failing to see the
box given its low height and white color against the white flooring.
9

Viewing the evidence and inferences in the light most favorable to Ms. Ferguson, we
conclude that Defendants have failed to establish that the evidence did not support the jury’s
determination that Ms. Ferguson was less than 51% negligent or that this determination was
against the weight of the evidence. We further conclude that Defendants have failed to establish
that “the record is critically deficient of the minimum quantum of evidence’ in support of the
verdict,” Eshelman, 554 F.3d at 433 (quotation omitted), that “‘the jury’s verdict resulted in a
miscarriage of justice,’” or that “the verdict . . . cries out to be overturned or shocks our
conscience.” Grazier, 328 F.3d at 128 (quotation omitted). Consequently, we deny Defendants’
Motion insofar as it requests judgment in its favor or a new trial due to the alleged insufficiency of
the evidence concerning the extent of Ms. Ferguson’s negligence.
B.

Expert Testimony

Defendants argue that they are entitled to a new trial pursuant to Rule 59 because we
erroneously permitted Mr. Alex Balian, Plaintiff’s retail safety expert, to offer opinions regarding
the danger posed by the box at issue, and to testify regarding “acceptable” standards in the retail
industry. In their view, this testimony violated a July 11, 2013 pretrial order we issued that
limited the scope of Mr. Balian’s testimony, and was also inadmissible as both unreliable and
unnecessary.
1.

Background

Prior to trial, Mr. Balian prepared two expert reports in which he opined that the box on
which Ms. Ferguson fell was a “tripping hazard” because it obstructed the pathway out of the scan
office and because it was “low profile.” Defendants filed a pre-trial Motion in Limine, seeking to
preclude Mr. Balian‘s report and testimony pursuant to Federal Rule of Evidence 702 and Daubert
10

v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993). We granted the Motion in part and denied it in
part in a July 11, 2013 Order. Specifically, we denied the Motion insofar as it sought to prohibit
Mr. Balian from testifying regarding safety studies and standards of care in the supermarket
industry, but granted it insofar as it sought to preclude him from opining that the box on which Ms.
Ferguson fell was a “tripping hazard.” (7/11/13 Order at 1.) We explained in a footnote that Mr.
Balian’s opinion that the box was a tripping hazard because it obstructed the doorway was
unnecessary because the jury could use its own common sense and common experience to
determine whether the box obstructed the doorway. (Id. at 2 n.1.) We further explained that Mr.
Balian’s opinion that the box was a tripping hazard because it was a low profile object was
inadmissible because his expert report disclosed no identifiable methodology that he had utilized
in reaching and rendering that opinion. (Id.)
On July 12, 2013, the parties took Mr. Balian’s deposition by video to be played at trial.
During the deposition, defense counsel objected to several questions, contending that Plaintiff’s
counsel was eliciting testimony that violated the terms of our July 11, 2013 Order. Defendants
brought these objections to our attention before Plaintiff’s counsel played the video deposition for
the jury. As a result, we ruled on the objections and, when Plaintiff’s counsel played Mr. Balian’s
videotaped testimony for the jury, he included only portions that we had found to be permissible
under our Order.3
3

Neither Defendants nor Ms. Ferguson have submitted an accurate recitation of the
testimony that was played for the jury. Most notably, although our review of the audio recording
of the trial establishes that the following excerpt was not played, they both mistakenly believe that
it was:
Well, the term “low profile,” basically, and I said earlier, anything
below your knees is the general rule. . . . Customers, when they
don’t expect to have anything in the aisle at that level, that becomes
11

Mr. Balian testified in pertinent part at trial that the “number one” cause of injury in the
supermarket industry are falls after slipping or tripping. (Balian Dep. Tr. at 23.) According to
Mr. Balian, the consensus in the supermarket industry is that walkways and pathways should be
“kept free and clear of any obstruction” in order to prevent trips and falls. (Id. at 25.) Mr. Balian
testified that it is understood in the industry that trips are caused by protruding objects that are
“below the line of sight” and unexpected in a pathway. (Id. at 24.) Mr. Balian further testified
that the “rule of thumb” in the industry is that anything that is “below the knee” is “below eye
level.” (Id. at 28.) As shorthand, he referred to objects that met this criteria as “low-profile
objects.” (Id.) Mr. Balian also testified that there is neither a consensus nor a school of thought
in the retail or supermarket industry that placing a low profile obstacle in a walkway, and
expecting customers or invitees to see the obstacle, is an “acceptable” way to prevent trips and
falls. (Id. at 37-38.)
2.

Admissibility of testimony

Defendants contend that Mr. Balian’s testimony violated the restrictions that we imposed
in our pretrial Order insofar as he testified that the box at issue was a tripping hazard and expressed
opinions as to “acceptable” standards in the retail industry. They also argue that the testimony
was inadmissible because it was unreliable and unnecessary. We reject these arguments.
First, contrary to Defendants’ assertion, and consistent with our Order, we did not permit
Plaintiff to play any testimony by Mr. Balian offering the opinion that the box at issue was a

low profile. And if you want an actual general guideline, below
your knees. . . . But when you’re in the marketplace, that’s not an
expectation. So, consequently, these items that I mentioned, since
there are not expectations, can be low profile and can be overlooked.
(Balian Dep. Tr. at 32-33.)
12

“tripping hazard.” Defendants maintain that Mr. Balian testified that “a box like the one at issue
in this case could qualify as a low-profile object and, thus, a tripping hazard” (Defs.’ Mem. at 9),
but, in fact, no such testimony was shown to the jury. Indeed, at no time during the portion of Mr.
Balian’s testimony that was played for the jury did Mr. Balian testify that the box at issue was low
profile or did he use the phrase “tripping hazard.”4 We therefore find no merit in Defendants’
assertion that we permitted Ms. Ferguson to violate the terms of our Order by presenting testimony
from Mr. Balian that the box at issue was a “tripping hazard.”
Second, Defendants are simply incorrect in their contention that Mr. Balian’s testimony
violated the terms of our pretrial Order insofar as he testified that Defendants’ conduct was not an
“acceptable” standard in the retail industry.

(Defs.’ Mem. at 9.)

In connection with this

contention, Defendants focus on the following questions and answers that were played for the jury
at trial:
Q: Mr. Balian, when it comes to industry standards, can you tell
us, is there any consensus in the retail store industry or supermarket
industry that an acceptable measure for preventing trips and falls is
for a retail store to place a low profile obstacle in a walkway and
then to simply rely or assume that workers or customers will see it
and, therefore, not trip over the hazard?
A. Not that I’m aware of, no.
Q: Have you ever heard of such a standard or consensus in the
industry?
4

In one portion of Mr. Balian’s deposition that was played for the jury, Plaintiff’s counsel
used the phrase “tripping hazard.” (Balian Dep. Tr. at 30-31 (“Mr. Balian, you mentioned a
couple of times low profile objects. And I think at one point, you referred to below the knee.
Why is that issue important when it comes to objects that can be tripping hazards in retail
stores?”).) However, Mr. Balian’s answer to that question was not played for the jury. Rather,
the jury heard defense counsel’s videotaped objection to the question, then the videotape was
paused, and the videotaped deposition resumed at page 37, line 22, with a new question from Ms.
Ferguson’s counsel.
13

A: I have not, no.
Q: Are you aware of any school of thought, in the retail store
industry or the government agencies that police that industry, that a
store or company’s placing a low profile obstacle in a walkway and
then relying on a worker or customer or any pedestrian simply to see
it is an acceptable way to prevent falls?
A: I have never heard of anything of that nature, no.
(Balian Tr. Dep. at 37-38.) According to Defendants, this testimony was couched as fact
testimony regarding industry standards, but actually amounted to impermissible opinion testimony
that Defendants were negligent, in violation of our July 11, 2013 Order. However, this testimony
is nothing more than industry standards testimony, which we explicitly permitted in our July 11,
2013 Order. We therefore find Defendants’ argument that admission of this testimony violated
our pretrial order limiting Mr. Balian’s testimony to be meritless.
We also reject Defendants’ contentions that we erred in permitting Ms. Ferguson to play
for the jury Mr. Balian’s video deposition testimony that (1) industry standards recognize that low
profile objects, in general, can cause trips and falls, and (2) it is not an acceptable practice in the
industry to place a low profile object in a walkway and to expect visitors to see it. Defendants
essentially assert that the former testimony violates Federal Rule of Evidence 702 and Daubert
because it is speculative and not based on any methodology, and that the latter testimony
impermissibly expressed an opinion as to Defendant’s negligence. However, we conclude that
we did not err in permitting Mr. Balian to testify that, in the supermarket industry, there is an
understanding that low profile objects can cause trip and falls.

This testimony is neither

speculative nor based on insufficient methodology; rather, it is a statement of industry consensus,
which is grounded on years of experience in maintaining retail spaces that are safe for workers and
14

visitors.5 In addition, we find no merit in Defendants’ contention that Mr. Balian’s testimony
regarding industry standards amounted to testimony that Defendants were negligent, as he never
expressed an opinion as to whether the box in this case intruded on a walkway, was “low profile,”
or otherwise violated the industry standards about which he testified.
We further note that, in order to establish their entitlement to a new trial based on trial court
error, Defendants must establish that the purported “error was so prejudicial that refusal to grant a
new trial would be inconsistent with substantial justice.” Carnegie Mellon Univ., 2013 WL
5332108, at *15 (quotation omitted). Defendants have not established that any such prejudice
resulted from Mr. Balian’s testimony. This was not a complex case in which the jury had to place
great reliance on an expert’s opinion. The facts were simple and clear and, separate and apart
from Mr. Balian’s testimony, the danger that Defendants created by using a box as a doorstop was
readily apparent. We therefore reject any contention that substantial justice was compromised by
the admission of Mr. Balian’s testimony. For the above reasons, we deny Defendants’ request for
a new trial insofar as it is grounded on alleged error in admitting Mr. Balian’s testimony.
C.

Jury Charge

Defendants contend that they are entitled to a new trial because we erroneously gave a
“somewhat convoluted” charge regarding the duty that possessors of land owe to invitees. (Defs.’
Mem at 11.) The parties agreed, prior to trial, that we should use Pennsylvania Suggested
Standard Jury Instruction § 18.40, which provides as follows:
An [owner][occupier] of land is required to use reasonable care in
the maintenance and use of the land, and to protect invitees from
foreseeable harm. An [owner][occupier] of land is also required to
5

In fact, even the store manager, Mr. Dougherty, testified at trial that the presence of a box
in a walkway is a tripping hazard, which increases the likelihood of falls. (N.T. 7/15/13 at 25-26.)
15

[inspect] the premises and to discover dangerous conditions. An
[owner][occupier] of land is liable for harm caused by invitees by a
condition on the land if:
1. the [owner][occupier] knows or by using reasonable
care would discover the condition, and should realize that it
involves an unreasonable risk of harm, and
2. the [owner][occupier] should expect that the invitees
will not discover or realize the danger or will fail to protect
themselves against it, and
3. the [owner][occupier] fails to use reasonable care to
protect invitees against the danger.
An [owner][occupier] of land is subject to liability to invitees for
any harm that the [owner][occupier] should have anticipated,
regardless of whether the danger is known or obvious. (N.T. 7/17/13
at 23-24.)
(Jt. Proposed Pt. for Charge No. 19 (quoting Pa. Suggested Standard Jury Instructions (Civil) §
18.40).)

However, Defendants subsequently requested at trial that we give what they term a

“prohibitive” charge, and instruct the jury that “‘[a] possessor of land is not liable to his invitees
for physical harm caused to them by any activity or condition on the land whose danger is known
or obvious to them unless the possessor should anticipate the harm despite such knowledge or
obviousness.’” (Defs.’ Proposed Point for Charge No. 3 (quoting Carrender, 469 A.2d 123).)
In our instructions to the jury, we used the Pennsylvania Standard Jury Instruction, but modified
the final paragraph to better reflect the requirements set forth in the three subparagraphs and
instructed the jury as follows:
A possessor of land is subject to liability to invitees for any harm
that the possessor should have anticipated, regardless of whether the
danger is known or obvious, provided that the possessor should
have expected that invitees would fail to discover or realize the
danger or would fail to protect themselves against the danger.
16

(N.T. 7/17/13 at 23-24.)
Where a movant seeks a new trial based on an alleged legal error in the jury instructions,
we must consider “whether, taken as a whole, the instruction properly apprised the jury of the
issues and the applicable law.” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir.
2009) (citation omitted). We have “‘substantial discretion with respect to specific wording of
jury instructions and need not give [a] proposed instruction if essential points are covered by those
that are given.’” Grazier, 328 F.3d at 127 (alteration in original) (quoting Douglas v. Owens, 50
F.3d 1226, 1233 (3d Cir. 1995)). We abuse our discretion only “if the instruction was capable of
confusing and thereby misleading the jury.” Id. at 126 (quoting United States v. Fischbach &
Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984)).
Here, Defendants do not contend that our instruction was an incorrect statement of the
law. Rather, they only argue that the added language was “confusing with respect to whether a
Plaintiff could recover if the jury found that the danger associated with her injury was known and
obvious.” (Defs.’ Mem. at 11.) We conclude that the charge we gave was a clear and accurate
statement of Pennsylvania law and properly instructed the jury as to the circumstances in which
they could find Defendants liable even if the dangerous condition was known and obvious. We
therefore deny Defendants’ Motion insofar as it requests a new trial based on the assertion that we
gave an improper jury charge.
D.

Remittitur

Defendants argue that they are entitled to remittitur because the jury verdict was “grossly
excessive in light of the facts and evidence adduced at trial” and, thus, “shocks the conscience and
sense of justice.” (Defs.’ Mem at 12-13.) Specifically, they assert that the jury’s total damages
17

award of $834,703.33 included $650,000 in noneconomic damages,6 and argue that this amount of
noneconomic damages was unreasonable under the circumstances.
A remittitur “is a substitution of the court’s judgment for that of the jury regarding the
appropriate award of damages.” Cortez v. Trans Union LLC, 617 F.3d 688, 716 (3d Cir. 2010)
(quoting Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1331 (11th Cir. 1999)). It is
a “well established . . . device employed when the trial judge finds that a decision of the jury is
clearly unsupported and/or excessive.” Cortez, 617 F.3d 688, 715-16 (3d Cir. 2010) (quoting
Spence v. Bd. of Educ. of Christiana Sch. Dist., 806 F.2d 1198, 1201 (3d Cir. 1986)). Whether to
grant a remittitur is a matter within the trial court’s sound discretion. Evans v. Port Auth. of New
York and New Jersey, 273 F.3d 346, 354 (3d Cir. 2001) (citing Spence, 806 F.2d at 1200).
Indeed, the trial judge “‘is in the best position to evaluate the evidence presented and determine
whether or not the jury has come to a rationally based conclusion.’” Id. (quoting Spence, 806
F.2d at 1201)). In reviewing an allegedly excessive jury award, the district court should “‘make a
detailed appraisal of the evidence bearing on damages.’” Rivera v. Virgin Islands Hous. Auth.,
854 F.2d 24, 27 (3d Cir. 1988) (quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159
(1968)). The Court of Appeals will reverse a trial court order denying remittitur and will grant a
new trial “‘only if the verdict is so grossly excessive as to shock the judicial conscience.’” Id. at
27 (quoting Gumbs v. Pueblo Int’l, Inc., 823 F.2d 768, 771 (3d Cir. 1987)).
While the jury’s noneconomic damages award of $650,000 in this case is certainly
generous, it is neither unreasonable nor irrational given the trial evidence regarding Ms.
Ferguson’s damages. The evidence at trial established that, at the time of Ms. Ferguson’s fall, she
6

Ms. Ferguson’s total medical expenses were $90,906.75, and her income loss was
$93,769.58. (N.T. 7/17/13 at 9.) Thus, the remainder of the damages award reflected
noneconomic damages.
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was 68 years old. (N.T. 7/16/13 at 47.) She worked three days a week and wanted to continue to
work as long as she could. (Id. at 41, 48.) According to her daughter, Ms. Ferguson “loved her
job,” and it “gave her a reason to get up and . . . do what she did every day.” (Id. at 84.) Ms.
Ferguson resided at the time of her fall, and resides now, with her boyfriend of close to 25 years,
and he testified at trial that, prior to her accident, Ms. Ferguson not only drove, but also did “just
about everything” around the house, including the cooking, cleaning and laundry. (Id. at 33-34).
When Ms. Ferguson tripped over the box at Pathmark, she fractured both her right shoulder
and her left knee, with her shoulder taking the brunt of her fall. (Id. at 52-55, 72; Bonner Dep. Tr.
at 15- 16.) She testified that the pain in her shoulder was “so ungodly bad” that it was “worse than
natural childbirth.” (N.T. 7/16/13, at 56.) She was immediately hospitalized, and shortly
thereafter had major surgery on her shoulder. (Id. at 55-56.) The shoulder fracture was a
“complex,” four-part fracture and, in surgery, the doctors took out a part of her bone and replaced
it with a steel piece. (Bonner Dep. Tr. at 16-17.) Following surgery, Ms. Ferguson had
“difficulties with ambulation and self-care activities” and spent at least three weeks in a
rehabilitation facility.

(N.T. 7/16/13 at 56-57; Bonner Dep. Tr. at 18.) Thereafter, in 2011 and

2012, Ms. Ferguson had 178 physical therapy appointments to address her shoulder injury. (N.T.
7/16/13 at 6-7.) Although the pain in her injured knee ended in July 2011, Plaintiff still has
limited mobility in her right arm, and has pain in her right shoulder every day. (Id. at 62-64, 71.)
In essence, the accident “left [her] with serious restrictive range of motion and persistent severe
pain,” such that she cannot raise her right arm above shoulder height. (Bonner Dep. Tr. at 21-22.)
Due to her limited shoulder mobility and related pain, Ms. Ferguson can no longer work or
drive, no longer does laundry or cleans the house, and no longer lifts pots or pans with her right
19

arm. (Id. at 23-24, 28, 50-51; N.T. 7/16/13 at 34-35, 57.) She relies on either her boyfriend or
her sister to take her shopping. (N.T. 7/16/13 at 36.) Because she no longer drives herself, Ms.
Ferguson sees her daughter less frequently than she did before her fall. (Id. at 81-82.) She also
rarely makes it to her grandsons’ sporting events, which she used to “always” attend. (Id. at 81.)
According to Ms. Ferguson’s daughter, she is “kind of recluse.” (Id.) Ms. Ferguson testified
that she no longer has her independence and is “at the mercy of everyone else.” (Id. at 64-65.)
She still takes a nighttime sleeping aid to help her to sleep on some nights, and still takes Percocet
for the continuing pain in her shoulder. (N.T. 7/16/13 at 36, 43; Bonner Dep. Tr. at 15.) Ms.
Ferguson’s medical expert testified that her injury is permanent and her prognosis is poor.
(Bonner Dep. Tr. at 23, 27-28.) In his view, her condition will likely deteriorate as she gets older
and she will have to continue with home therapy in order to lessen that deterioration. (Id. at 28.)
At Plaintiff’s request, we instructed the jury regarding Ms. Ferguson’s life expectancy in
connection with the calculation of damages. Specifically, we instructed the jury that, according to
statistics compiled by the United States Department of Health and Human Services, Ms. Ferguson
had a life expectancy of 16.6 years. (N.T. 7/17/13 at 28). Given this life expectancy and the
evidence regarding the impact of Ms. Ferguson’s injuries on her life, we do not find the jury’s
damages award to be unreasonable or irrational.

It certainly does not “shock the judicial

conscience.” Rivera, 854 F.2d at 27. We therefore deny Defendants’ Motion insofar as it seeks
remittitur.

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IV.

CONCLUSION
For the reasons set forth above, we deny Defendants’ Motion in its entirety.

appropriate order follows.

BY THE COURT:
/s/ John R. Padova, J.

John R. Padova, J.

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An