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RICHARD SPEER AND JOYCE SPEER v. JANE BARRY AND THOMAS BARRY (11/22/85)

filed: November 22, 1985.

RICHARD SPEER AND JOYCE SPEER, HIS WIFE, APPELLEES,
v.
JANE BARRY AND THOMAS BARRY, APPELLANTS, V. ROBERT W. JOHNS, APPELLEE



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 80-29380.

COUNSEL

Charles Kirshner, Pittsburgh, for appellants.

John L. Elash, Pittsburgh, for Speer, appellees.

Ira C. Houck, Jr., Pittsburgh, for Johns, appellee.

Wieand, Cirillo and Johnson, JJ. Johnson, J., files a dissenting opinion.

Author: Wieand

[ 349 Pa. Super. Page 368]

Richard Speer and Joyce Speer, husband and wife, were tenants residing in one of the apartments of a duplex owned by Jane Barry in the City of Pittsburgh. On September 15, 1980, Richard Speer was injured when his foot broke through a board on the front porch used incommon by all tenants. He and his wife commenced an action against Jane Barry to recover damages for the injuries sustained as a result of his fall. Barry caused to be joined as an additional defendant an independent contractor, Robert W. Johns, who at the landlord's request had made repairs to another part of the porch on September 11, 1980, four days prior to Speer's fall. The action was tried before a jury which returned a verdict in favor of the Speers and against Jane Barry alone for $38,695. Post-trial motions were dismissed, and judgment was entered on the verdict. This appeal followed in which the appellant, Jane Barry, argues that trial errors compel a new trial. We disagree and affirm the judgment.

[ 349 Pa. Super. Page 369]

The first argument advanced by appellant is that the trial court erred when it required defense counsel to make an opening statement after the plaintiffs' evidence had been presented and denied his request to make an opening statement following the opening statement by plaintiffs' counsel. The right to present argument to the jury is part of a party's constitutional right to be represented by an attorney in civil cases, and a court may not deny a party's counsel the right to make an opening statement to the jury. Nestor v. George, 354 Pa. 19, 25, 46 A.2d 469, 473 (1946); Turley v. Hennis Freight Lines, Inc., 263 Pa. Super. 523, 532, 398 A.2d 699, 704 (1979). Pa.R.C.P. 223(a)(3), however, suggests that there is discretion in the trial court to regulate addresses by counsel to the jury; and so long as no clear abuse of discretion appears and no right of due process has been violated, the court's exercise of discretion will not be reversed. 8 Std.Pa.Prac. Conduct of Trial § 48:13 (1982).

In earlier years, it was customary for the defense to make an opening statement to the jury at the conclusion of the plaintiff's evidence. In more recent years, it has become the custom that defense counsel be permitted to determine whether to open to the jury at the conclusion of the opening by plaintiff's counsel or at the conclusion of plaintiff's evidence. This is the better practice and is generally followed by trial courts in this Commonwealth. In this case, however, appellant has failed to demonstrate that she was prejudiced because her counsel was required to make an opening statement at the conclusion of plaintiffs' evidence. Prejudice will not be presumed; and in the absence thereof, we will not reverse the trial court's exercise of discretion.

The trial court instructed the jury that appellant could be found liable on one of two theories. First, the trial court said, "she is liable if she, by the exercise of reasonable care, could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe." (N.T. 1/12-13/84, at 59.) Second, the trial judge charged, appellant should be found liable for any negligence committed by the independent contractor in repairing the

[ 349 Pa. Super. Page 370]

    porch. (N.T. 1/12-13/84, at 59.) Appellant argues on appeal that it was error to instruct the jury that the owner was vicariously liable for negligent ...


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