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Eisenberry v. Shaw Brothers

August 11, 2010

ROBERT EISENBERRY, PLAINTIFF
v.
SHAW BROTHERS, L.L.C.; SHAW BROTHERS DONKEY BALL, L.L.C., TIMOTHY E. SHAW AND KIM M. SKERPON, DEFENDANTS



The opinion of the court was delivered by: Mannion, M.J.

MEMORANDUM AND ORDER*fn1

Pending before the court is defendant Skerpon's renewed motion for judgment as a matter of law filed pursuant to Fed.R.Civ.P. 50(b). (Doc. No. 72).

By way of relevant procedural background, on July 15, 2008, the plaintiff filed the instant personal injury action based upon diversity jurisdiction naming as defendants Shaw Brothers Donkey Ball, L.L.C.; Timothy E. Shaw d/b/a Shaw Brothers Donkey Ball Co.; and William Skerpon. (Doc. No. 1). An amended complaint was filed on September 17, 2008, substituting Kim Skerpon for William Skerpon as a defendant. (Doc. No. 4).Answers to the amended complaint and cross-claims were filed by defendant Skerpon and the Shaw defendants on October 14, 2008, (Doc. No. 8), and November 17, 2008, (Doc. No. 9), respectively.

Separate motions for summary judgment were filed on behalf of the Shaw defendants and defendant Skerpon, both of which were denied by order dated January 15, 2010. (Doc. No. 46). As a result, on February 8, 2010, the matter proceeded to a jury trial on the issue of liability only. At the close of the plaintiff's case, the defendants made motions for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a), which were denied. A jury ultimately found in favor of the plaintiff, finding the Shaw defendants 40% negligent, defendant Skerpon 30% negligent, and the plaintiff 30% negligent. Judgment was entered accordingly on February 10, 2010.

On March 22, 2010, defendant Skerpon filed the instant renewed motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b). (Doc. No. 72). A brief in support of the motion was filed on the same day. (Doc. No. 74). The plaintiff filed a brief in opposition to defendant Skerpon's motion on April 6, 2010. (Doc. No. 76).

Rule 50(b) of the Federal Rules of Civil Procedure provides that a party may file a renewed motion for judgment as a matter of law following the completion of a jury trial. In considering such a motion, the court may: (1) allow judgment on the verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. Fed.R.Civ.P. 50(b).

Judgment as a matter of law is rendered pursuant to Rule 50 when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149 (2000)(citing Fed.R.Civ.P. 50(a)). The court is to review all of the evidence in the record and draw all reasonable inferences in favor of the nonmoving party. Id. at 150. However, when reviewing the record, the court may not make credibility determinations or weigh the evidence. Id. Judgment may be directed when the facts are sufficiently clear such that the law requires a particular result. Weisgram v. Marley Co., 528 U.S. 440, 448 (2000).

The standard for reviewing the grant or denial of pre-verdict and post-verdict motions for judgment as a matter of law is identical. As such, in ruling on a post-trial motion, the court should not base its conclusions, in whole or in part, on the jury's determinations or attempt to apply or refute particular findings of the jury. See Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007)(jury findings are not germane to legal analysis of renewed motion for judgment as a matter of law))(citations omitted).

In the instant motion, defendant Skerpon argues that, while the plaintiff proceeded on a theory that defendant Skerpon was required to inspect the premises at issue, the plaintiff introduced no evidence to support this theory and failed to present any evidence which would indicate that she was obligated to inspect, care for or maintain the premises. Defendant Skerpon argues that she is entitled to judgment as a matter of law because she is an out of possession landlord who retained no control over the premises where the incident occurred and that she was not obligated to maintain or repair the premises.

The court previously set forth the law with respect to out of possession landlords:

Under Pennsylvania law, landlords out of possession generally are not liable for injuries suffered by third parties on the leased property. Dinio v. Goshorn, 270 A.2d 303 (Pa. 1969); Dorsey v. Continental Assoc., 591 A.2d 716, 718 (Pa.Super. 1991), appeal denied, 612 A.2d 985 (Pa. 1992). However, there are a number of exceptions to this general rule. Pennsylvania courts have enunciated the following exceptions to the general rule of non-liability applicable to out of possession landlords:

A landlord out of possession may incur liability: (1) if he has reserved control over a defective portion of the demised premises, (citations omitted), (2) if the demised premises are so dangerously constructed that the premises are a nuisance per se, (citations omitted), (3) if the lessor has knowledge of a dangerous condition existing on the demised premises at the time of transferring possession and fails to disclose the condition to the lessee, (citations omitted), (4) if the landlord leases the property for a purpose involving the admission of the public and he neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee, (citations omitted), (5) if the lessor undertakes to repair the demised premises and negligently makes the repairs, (citations omitted), or (6) if the lessor fails to make repairs after having been given notice of and a reasonable opportunity to remedy a dangerous condition existing on the leased premises, (citations omitted). Dorsey v. Continental, 591 A.2d at 718-19 (1991), Henze v. Texaco, Inc., 352 Pa.Super 538, 508 A.2d 1200, 1202 (1986). (Doc. No. 46, pp. 13-14).

In the instant case, the court found that exceptions 1 and 6 were relevant. Although defendant Skerpon argues that no evidence was introduced that she reserved any control over any portion of the barn, as noted by the court in ruling on defendant Skerpon's initial Rule 50 motion, there was testimony presented at the trial by defendant Shaw which indicated that there was a written lease in effect which provided that defendant Skerpon would be responsible for major repairs, including replacement or repair of the floor of the barn. (See Attached Transcript, pp. 76-81). Defendant Shaw indicated that he would be responsible for more minor repairs such as the replacement or repair of individual boards in the floor. (Id.). Moreover, in reviewing the testimony, defendant Skerpon herself testified that, pursuant to the provisions of the written lease, she maintained the right to inspect the premises, a right which she admittedly never exercised. (Id. at pp. 61-63). In light of the testimony presented that defendant Skerpon maintained some control over the premises pursuant to the written lease which was in effect, it was proper to present the issue of whether defendant Skerpon was an out of possession landlord to the jury. Therefore, defendant Skerpon's renewed motion for judgment as a matter of law will be denied with respect to this claim.

Further, although defendant Skerpon argues that there was no evidence presented of any notice of a dangerous condition at the barn, the court previously noted that photographic evidence presented on direct examination exhibited both structural defects as well as defects in individual floor boards. The court noted that, pursuant to the photographic evidence, one driving by the barn, without even having to go inside, would be placed on notice concerning the condition of ...


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