Appeal from the Judgment entered on March 24, 1987, in the Court of Common Pleas of Delaware County, Civil Division, at No. 83-2544.
Audrey L. Jacobsen, Philadelphia, for appellant.
Mark C. Schultz, Norristown, for appellee.
Cavanaugh, Beck and Hester, JJ. Cavanaugh, J., concurs in the result.
[ 374 Pa. Super. Page 124]
Plaintiff/appellee John Berman sued defendant/appellant Radnor Rolls, Inc. for personal injuries he sustained while skating at appellant's rink. The jury returned a verdict in favor of plaintiff Berman in the sum of $463,000 but found only 60% of the causal negligence attributable to defendant Radnor Rolls. The trial court molded the verdict by reducing it to $277,800 in accordance with the jury's finding that Berman was 40% contributorily negligent, and assessed delay damages in the amount of $76,395 for a total verdict of $354,195. Appellant Radnor Rolls filed motions for post-trial relief, which were dismissed by the court. This timely appeal followed.
The relevant facts in this case are as follows. On March 26, 1981, John Berman accompanied a group of friends to the Radnor Rolls skating rink. Berman testified that before this occasion he had roller-skated only one other time. Upon arriving at the rink, he rented skates and began skating away from the main rink in an area which was identified as a beginners' area. Berman testified that he skated in the beginners' area for approximately ten to fifteen minutes and then began skating on the main rink. After he had skated around the rink several times, he was bumped by another skater and lost his balance. As a result of losing his balance, Berman was unable to make the turn necessary to remain on the rink. Instead, while trying to regain his balance, he skated through a sixty feet wide opening in the railing which surrounds the rink and went onto a carpeted area adjoining the rink. The opening in the railing through which Berman skated is intended for use by skaters as an entrance to and exit from the rink surface. Berman stated that once he had left the rink surface and was on the adjoining carpeted area, he regained his balance but continued moving at a "reasonable speed." Berman testified that as he moved away from the rink, the floor dropped approximately six inches to a lower level (hereinafter referred to as the drop-off) and he again lost his balance and began heading in the direction of the vending
[ 374 Pa. Super. Page 125]
machine area, located approximately fifty feet from the skating area. Berman testified that he regained his balance again and intended to reach out for a vending machine in order to stop himself. However, as he reached for one of the machines, Berman struck his head against a cabinet or shelf which protruded beyond the machines and upon which rested a microwave oven. Berman's head was cut, causing him to bleed, but he was not hospitalized nor did he seek any immediate medical attention.
The next day, Berman's family went to his brother's house for dinner, but Berman, feeling ill, did not accompany them. When the family returned from the dinner, they found Berman on all fours on the floor of his bedroom. Berman's father testified that his son was crawling around the floor making grunting noises and saying only that he couldn't see and thought he was blind. Berman was taken to Lankenau Hospital. His father testified that when he and Berman's mother were permitted to see him, Berman merely stared into space and did not respond when spoken to. Berman's condition improved the following day, but he remained in the hospital for four days before being released. Berman's difficulties continued even after leaving the hospital. Berman's family testified that he had difficulty understanding or recalling things that were said to him. Berman's brother, who owned a landscaping business where Berman had been employed as a laborer, stated that before his head injury Berman had been a reliable worker. Following the accident, Berman developed a weakness on one side of his body and could no longer perform his work. His brother then switched Berman to sales. Berman proved to be extremely unreliable and failed repeatedly to keep appointments with prospective customers. At trial, Berman's expert witnesses testified that he was suffering from mild organic brain dysfunction, with the result that he had and would continue to have problems with memory and learning.
Appellant Radnor Rolls raises five contentions of error, which we consider seriatim. We find that the trial court
[ 374 Pa. Super. Page 126]
committed no error, and affirm the judgment entered below.
Appellant first claims that the trial court erred in refusing to grant its motion for judgment n.o.v. On appeal, we will reverse the trial court's denial of judgment n.o.v. if we find an abuse of discretion or an error of law which controlled the outcome of the case. Timbrook v. Foremost Ins. Co., 324 Pa. Super. 384, 471 A.2d 891 (1984). We consider the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the verdict winner. Northwest Savings Assoc. v. Distler, 354 Pa. Super. 187, 511 A.2d 824 (1986).
Appellant presents three arguments in favor of its request for judgment n.o.v. The first two relate to appellant's contention that it owed no duty to appellee and the third relates to appellant's contention that appellee failed to show causation. First, appellant argues that the aspects of the rink's design that appellee alleges were defective and caused his accident -- the six-inch drop-off between the carpeted area adjacent to the skating floor and the lower level of the rink concourse, the sixty feet wide opening in the rink railing, and the layout of the vending machine area -- were "known" or "obvious" hazards against which a landowner has no duty to protect his business invitees. In making this "no duty" claim, appellant asserts that rollerskating is one of those activities so generally known to be dangerous that the owner of the premises in which the activity occurs is considered to owe no duty to protect the participant from its hazards. Thus, appellant argues that it is clear as a matter of law that appellee failed to establish a prima facie case against appellant because he failed to establish the existence of a duty and that judgment n.o.v. in appellant's favor is, therefore, appropriate. This argument centers on one form or corollary of the principle of assumption of risk. See Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).
[ 374 Pa. Super. Page 127]
Appellant also argues that judgment n.o.v. is appropriate because it is clear as a matter of law that appellee failed to establish the existence of a duty on the part of appellant because this type of accident was unforeseeable.
Lastly, appellant asserts appellee failed to establish the additional necessary element of proximate (or legal) causation.
We will consider the substance of only one of these arguments in support of the entry of judgment n.o.v., i.e., that which goes to causation, because we conclude that appellant has waived its arguments that appellee failed as a matter of law to establish the element of duty.
The source of appellant's waiver of its duty theories is found both in its conduct at trial and in its post-trial motions and brief in support thereof. During trial, appellant did not proceed on the theory that it was entitled to judgment as a matter of law on any assumption of the risk or duty theory. For example, appellant moved for a directed verdict on only one theory. It sought a directed verdict on the ground that appellee had failed to submit sufficient evidence of proximate causation to warrant submission of the case to the jury. Appellant did not move for either a compulsory non-suit or directed verdict on the ground that appellee had failed to establish the existence of a duty.
Of even greater significance is the fact that nowhere in appellant's post-trial motions or supporting brief is there any reference to the theory that appellant did not owe a duty to appellee because of the unforeseeability of this type of accident and that appellant was thus entitled to judgment n.o.v. on that ground.
Moreover, although appellant's post-trial motions do allege error in the trial court's refusal to charge the jury on its assumption of risk theories, nowhere does appellant argue that the trial court should have decided as a matter of law that appellant had no duty under an assumption of the risk analysis, thus entitling it to judgment n.o.v. on that ground. Appellant's sole argument was that the issue of
[ 374 Pa. Super. Page 128]
assumption of risk should have been submitted to the jury. If that indeed was error on the part of the trial court, which we find it was not, appellant would be entitled only to a new trial which included a charge on the assumption of risk theory. It would not be entitled to judgment n.o.v.
In this regard, we find a close analogy between this case and the case of Scarborough by Scarborough v. Lewis, 359 Pa. Super. 57, 518 A.2d 563 (1986). In Scarborough, one of the appellants attempted to argue on appeal that the trial court had erred in refusing the entry of judgment n.o.v. on the same two grounds asserted in the instant case, i.e., appellees' failure to establish a prima facie case of negligence by failing to show both the existence of a duty and of proximate causation. The court refused to consider whether the element of duty had been shown because appellant failed to present argument in its post-trial brief on this issue. Id., 359 Pa. Superior Ct. at 62-63, 518 A.2d at 566. In so deciding, the court provided the following authorities, which will also suffice to support our conclusion in the case sub judice:
See generally Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974); Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); see also Commonwealth v. Dessus, 262 Pa. Super. 443, 396 A.2d 1254 (1978) (issue abandoned when not briefed for lower court but raised on appeal as an afterthought); Schneider v. Albert Einstein Medical Center, 257 Pa. Super. 348, 390 A.2d 1271 (1978) (issue waived when raised in post-trial motions but not briefed or argued before trial court); Commonwealth v. Prisznyak, 306 Pa. Super. 137, 452 A.2d 253 (1982) (failure to brief or argue issues raised in post-verdict motions results in waiver of issues on appeal); Equipment Finance v. Toth, 328 Pa. Super. 351, 476 A.2d 1366 (1984) (failure to argue or brief issues raised in post-trial motions results in waiver of issues and would not form basis of appeal to reviewing court); Bell v. City of Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1985) (issue not argued in brief filed in trial court was not preserved for appellate review); Cherry v. Willer,
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Pa. Super. 58, 463 A.2d 1082 (1983); Richardson v. LaBuz, 81 Pa. Commw. 436, 474 A.2d 1181 (1984).
Id. at n. 3. See also Bryant v. Girard Bank, 358 Pa. Super. 335, 517 A.2d 968 (1986) (failure to raise in post-trial motions and/or brief in support thereof grounds for judgment n.o.v. results in waiver of those issues on appeal).
We further note, as did the Scarborough court, that the trial court opinion does not address either of the arguments appellant now raises in support of entry of judgment n.o.v. based on a failure to establish the duty element. As the Scarborough court also found, we conclude that this resulted from appellant's failure to raise these contentions to the trial court, thus depriving the trial court of the opportunity to consider them and depriving us of the trial court's analysis thereof. Id.
Appellant's properly preserved argument in support of entry of judgment n.o.v. rests on the contention that appellee failed to establish that his injuries were proximately or legally caused by any dereliction by appellant. The gravamen of appellant's argument is that since appellee testified that he regained his balance after having confronted both the rink exit and the six-inch drop-off but continued to skate toward the vending machine area, intending to stop himself there, none of the alleged defects in the construction of appellant's property caused appellee's injuries. Rather, appellant argues that appellee's own conduct in continuing to skate toward the vending area was the legal cause of his injuries.
In considering this argument, we are mindful not only of our limited standard of review set forth above, but also that the issue of proximate causation "is normally a question of fact for the jury; the question is to be removed from the jury's consideration only where it is clear that reasonable minds could not differ on the issue." Hamil v. Bashline, 481 Pa. 256, 266, 392 ...