Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MAHOLLAND v. BIRD ET AL. (09/23/74)

decided: September 23, 1974.

MAHOLLAND, APPELLANT,
v.
BIRD ET AL.



Appeal from judgment of Court of Common Pleas of Chester County, May T., 1970, No. 75, in case of Robert Maholland v. Frank E. Bird, Jr. and Esther S. Bird, Gritz Pools, Inc. and Henry Gritz.

COUNSEL

Lawrence M. Aglow, for appellant.

Ross A. Unruh, with him William J. Gallagher, and MacElree, Platt, Harvey & Gallagher, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 230 Pa. Super. Page 432]

Appellant contends that the trial court erroneously excluded the proffered testimony of appellant's expert.

On July 26, 1969, appellant, plaintiff below, attended a social outing held at appellees' home, celebrating the end of the season of the Downingtown Little League. The appellant was the father of one of the boys in the league. Appellant was seriously injured when he struck some portion of the appellees' swimming pool while executing a dive from the diving board.

Appellant brought an action in trespass in the Court of Common Pleas in Chester County. The action for personal injuries was based on the theory that the appellees maintained a hazardous condition on their property.

[ 230 Pa. Super. Page 433]

At trial, an expert witness testified on behalf of appellant. The witness had extensive experience in consulting colleges and others in the design of athletic facilities, in teaching water safety, and in running swimming facilities. The expert, based on personal observations, gave a detailed description of the swimming pool in which appellant sustained his injury. Objection was raised, however, when counsel for appellant asked the witness ". . . are you able to form an opinion concerning the safety of the construction of this pool or any of its parts?" An offer of proof was made at side bar.*fn1 The court disallowed the question because it called for a conclusion which the jury was equally capable of forming and which went to the ultimate issue in the case.

The jury returned a verdict for the defendants. The present appeal followed the trial judge's denial of appellant's motion for a new trial.

[ 230 Pa. Super. Page 434]

The law governing expert testimony is well settled in Pennsylvania. "Phenomena and situations which are matters of common knowledge, may not be made the subject for expert testimony." Collins v. Zediker, 421 Pa. 52, 53, 218 A.2d 776 (1966). Whenever "descriptive language is adequate to convey to the jury the precise facts upon which it can apply its experience" (Huck-Gerhardt Co. v. Kendall, 189 Pa. Superior Ct. 126, 149 A.2d 169 (1959)), the resolution of those facts is within the province of the jury and expert testimony on the subject is inadmissible. Collins, supra, at 53-54; Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873 (1952). The rationale for such a rule is found in Justice Musmanno's caveat: "Jurors are humans and are ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.