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Barbara and John Zaprala v. Usi Services Group

March 20, 2013


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


Presently before the Court are Plaintiffs' Motion for a New Trial (Doc. 58) and Defendant's Response in Opposition thereto (Doc. 59). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Plaintiffs' motion will be denied.


Plaintiffs Barbara and John Zaprala ("Plaintiffs" or the "Zapralas"), husband and wife, brought this suit against Defendant USI Services, Inc. ("Defendant" or "USI") for personal injuries sustained by Barbara Zaprala. Barbara Zaprala was employed at the Macy's store in King of Prussia Mall in King of Prussia, Pennsylvania. On March 10, 2007, Barbara Zaprala was leaving her work station at Macy's and going home for the evening. At approximately 6:15 pm, Barbara Zaprala was walking inside the store toward the "Nautica entrance"*fn1 of the store when she slipped and fell. Barbara Zaprala alleged she fell because the tile floor was wet with a "slick spot," although no slick spot was ever identified by Plaintiff. Barbara Zaprala sustained injuries to her left knee and left hand. The injuries she received to her left knee later required surgery for knee replacement. The surgery caused complications, which included an infection and a pulmonary embolism.

USI is an independent contractor that was under contract (the "Janitorial Contract") with Macy's to provide housekeeping services. The Janitorial Contract also provided that one porter be on duty at the time of the alleged incident. Barbara Zaprala asserted a claim against USI for negligence. John Zaprala asserted a claim against USI for loss of consortium. Jurisdiction was based on diversity of citizenship.

Plaintiffs' theory of the case was as follows. Plaintiffs alleged that on March 7, 2007, three days before the accident, an inch and a half of snow fell on the top level of the Macy's store parking garage and on the domed plexiglass roof of a walkway outside of the Nautica entrance. Plaintiffs claimed that between March 7, 2007 and March 10, 2007, temperatures were either below freezing or a little above freezing. Plaintiffs claimed that on March 10, 2007, temperatures reached 62 degrees and the snow began to melt. This allegedly caused Macy's customers to track melting snow from outside into Macy's, which ultimately resulted in Barbara Zaprala's slip and fall. Plaintiffs argued that because Barbara Zaprala was a business invitee on the Macy's premises, USI had a duty to inspect and warn her of dangerous conditions. Conversely, USI argued that its contract with Macy's was to provide specific janitorial services at the store. USI maintained that its duties did not include patrolling Macy's to detect slippery conditions, and that Macy's personnel had not requested that USI provide any services in the area of Barbara Zaprala's fall. Thus, USI claimed it owed no duty to Barbara Zaprala because it had no actual or constructive notice of the alleged slippery condition, and in fact no slippery condition existed.

A six day jury trial was held from February 3, 2011 to February 9, 2011. On February 9, 2011, the jury returned a verdict in favor of USI, finding that it had not been negligent. Plaintiffs timely filed the instant motion for new trial.


Federal Rule of Civil Procedure 59(a) governs a motion for a new trial after a jury verdict. A court may grant a new trial 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). A court may grant a new trial on the grounds of: (1) improper admission or exclusion of evidence; (2) improper instructions to the jury; (3) newly discovered evidence exists that would likely have altered the outcome of the trial; (4) improper conduct by an attorney or the court unfairly influenced the verdict; (5) the jury's verdict is against the clear weight of the evidence; or (6) the verdict is so grossly excessive or inadequate as to shock the conscience. See Goodman v. Pennsylvania Tpk. Comm'n, 293 F.3d 655, 676 (3d Cir. 2002) (citingBecker v. ARCO Chem. Co., 207 F.3d 176, 180 (3d Cir.2000)); Am. Bd. of Internal Med. v. Von Muller, 10-CV-2680, 2012 WL 2740852 (E.D. Pa. July 9, 2012); Suarez v. Mattingly, 212 F. Supp. 2d 350, 352 (D.N.J. 2002); Davis v. Gen. Acc. Ins. Co. of Am., 153 F. Supp. 2d 598, 599-600 (E.D. Pa. 2001); Griffiths v. Cigna Corp., 857 F.Supp. 399, 410--11 (E.D.Pa.1994), aff'd,60 F.3d 814 (3d Cir.1995) (unpublished table decision). Determining whether to grant a new trial is within the sound discretion of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980); Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1017 (3d Cir.1995).


Plaintiffs raise eight assignments of trial court error which, they claim, entitle them to post-trial relief. Plaintiffs' arguments fall into three categories of the aforementioned grounds for granting a motion for a new trial: (1) improper admission or exclusion of evidence; (2) improper instructions to the jury; and (3) the jury's verdict was against the clear weight of evidence. The Court will address each of Plaintiffs' claims categorically.

A. Improper Admission or Exclusion of Evidence

1. The Court Properly Excluded Photographs of Snowfalls on December 26, 2010 and January 18, 2011 Plaintiffs first argue that the Court should have permitted the use of photographs of the snowfalls of December 26, 2010 and January 18, 2011. Plaintiffs contend that they attempted to introduce these photographs for the purpose of demonstrating the mechanics of how an accumulation of water inside the Nautica entrance of the Macy's store occurred and in order to assist the jury in understanding Plaintiff's theory of the accident. In support of their argument, Plaintiffs rely primarily on Russo v. Mazda Motor Corp., CIV. A. 89-7995, 1992 WL 309630 (E.D. Pa. Oct. 19, 1992), which held that photographs can be admissible to demonstrate mechanical principles as testified to by a party's expert, in order to represent the theory proposed by that expert. The Russo court reasoned as follows:

The general rule is that items offered for purposes of illustration and clarification, such as photographs, are admissible if they are "sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact. Whether the admission of a particular exhibit will in fact be helpful, or will instead tend to confuse or mislead the trier, is a matter commonly viewed to be within the sound discretion of the trial court." 2 John W. Strong, et al., McCormick on Evidence § 212, at 9--10 (4th ed.1992) [hereinafter McCormick on Evidence]. When confronted with photographs, films, and videotapes of experiments or demonstrations that purport to replicate actual events, courts require the party seeking to admit the evidence to prove that the experiment or demonstration was conducted under substantially similar circumstances as the actual event. Id. § 214, at 19--20; Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981).


On the other hand, when a party seeks to introduce photographs, films, and videotapes of experiments or demonstrations, not as a re-creation or representation of how an accident actually happened, but instead to illustrate general principles of physics, for example, courts do not impose the substantial similarity requirement. 2 McCormick on Evidence, supra, § 214, at 20. In these situations dissimilarities between experimental and actual conditions affect the weight of the evidence, not its admissibility. Szeliga v. General Motors Corp., 726 F.2d 566, 567 (1st Cir.1984).

Id. at *1-2. Based on this discussion, the Russo court found that the photographs at issue in that case fell into the latter category. Accordingly, the court found that the substantial similarity requirement did not apply and the photographs could be admitted. Plaintiffs, likening their case to Russo, claim that their architectural expert, Len McCuen, would have used the photographs to assist his testimony regarding what he observed about the snowfalls and how the snow reacted to the architectural structures outside the Nautica entrance of Macy's.

The Court rejects this argument. The purpose of the substantial similarity requirement, as discussed in the Russo opinion, "is to prevent admission of evidence that tends to mislead and perhaps confuse the jury and cause it 'to return a verdict which is based upon conclusions of fact that are contrary to what actually happened.'" Id. at *2 (quoting Jackson v. Fletcher, 647 F.2d. at 1028.) The photographs here were taken three to four years after the incident in question, and do not depict weather conditions that were present on the day of the incident. As such, Plaintiffs cannot satisfy the substantial similarity requirement and therefore attempt to argue that the photographs were intended to be "illustrative" of the "mechanical principles" of snow accumulation. However, this "mechanics" argument ignores the fact that Plaintiffs were permitted to offer numerous other non-snow covered photographs of the pedestrian bridge and its arch-glass cover. In addition, Plaintiffs' expert, Mr. McCuen, testified to (1) the walkway's architectural features, (2) the occurrence of snowfall several days earlier, and (3) how the snow would have accumulated and eventually melted off the glass canopy. The Court finds that Plaintiffs' expert, with the assistance of other photographs, was able to testify to the mechanical principles involved and thereby present Plaintiffs' theory of the case.

Conversely, the probative value of the photographs taken on December 26, 2010 and January 18, 2011 was vastly outweighed by the danger of unfair prejudice and confusion of the jury, as well as being a waste of time. Fed. R. Evid. 403. The jury did not need the assistance of these particular photographs in envisioning what snow on a roof would have looked like. The photographs were therefore prejudicial and misleading because they created the impression that they depicted the condition of the pedestrian bridge on the day of the incident (even though there was no evidence of snow cover on this date) and were a waste of time because they were being offered to show what other photographs and testimony had already established - i.e., snow could fall on the sloped glass roof and subsequently fall or melt off. The Court discerns no error in the exclusion these photographs.

2. The Court Properly Admitted the Testimony of Barry Golub Regarding the Course of Dealings between USI and Macy's

The Zapralas next assert that the Court should not have admitted the testimony of Barry Golub, USI's chief financial officer, concerning the course of dealings between USI and Macy's. Plaintiffs aver that the contract between Macy's and USI was unambiguous, and therefore the admission of Golub's testimony constituted extrinsic evidence that was improperly admitted. The Court previously denied Plaintiffs' motion in limine to bar Mr. Golub's testimony (Doc. 40), and will now address this issue once again.

Under Pennsylvania law, it is "firmly settled" that "the intent of the parties to a written contract is contained in the writing itself." Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624

A.2d 638, 642 (1993) (citing Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982)). "'Where the intention of the parties is clear, there is no need to resort to extrinsic aids or evidence'"; instead, the meaning of a clear and unequivocal written contract "'must be determined by its contents alone.'" Steuart, 444 A.2d at 661 (quoting East Crossroads Ctr., Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865, 866 (1965)). "[W]here language is clear and unambiguous, the focus of interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended." Id. (emphasis in original). "Clear contractual terms that are capable of one reasonable interpretation must be given effect without reference to matters outside the contract." Krizovensky, 624 A.2d at 642. However, "[w]here the contract terms are ambiguous and susceptible of more than one reasonable interpretation, . the court is free to receive extrinsic evidence, i.e., parol evidence, to resolve the ambiguity." Id. A contract will be found to be ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction.

Id. (citingZ & L Lumber Co. of Atlasburg v. Nordquist, 348 Pa.Super. 580, 585-86, 502 A.2d 697, 700 (1985)); see also Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Investments, 951 F.2d 1399 (3d Cir. 1991).

Accordingly, the question before the Court, in ruling on Plaintiffs' motion in limine, was whether the language of the contract was clear and unambiguous on its face. The Court found that it was not. Plaintiffs' motion cited only the most general provisions of the Janitorial Contract. (See Doc. 40 at 8-9) (citing "Janitorial Contract" at ¶¶ 1, 3, 5, 13, 21, Attachment A, & Attachment C.) The Court did not believe that any of these provisions clearly and unambiguously addressed the question of whether USI was required to patrol entryways for spills. Further, as USI now argues,*fn2 the only clearly delineated cleaning duties addressed in the Janitorial Contract are those set out in Attachment A ("Specifications").*fn3 The "Specifications" indicate that during store hours USI's staff was required to "mop all stains and spills, especially coffee and drink spills" in areas of the store such as "retail hard surfaces," "alterations," and the "beauty salon." (Id.) But with respect to "entrances," there is no similar requirement that USI "mop all stains and spills." (Id.) Thus, neither the Specifications nor ...

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