Appeal from the Order Entered July 25, 2012 In the Court of Common Pleas of Erie County Civil Division at No(s): 12901-09
BEFORE: BENDER, GANTMAN AND OLSON, JJ.
Appellant, R.S. Enterprises, LLC, appeals from the order entered on July 25, 2012, granting Linda Banohashim's post-trial motion for a new trial on damages and denying Appellant's request for post-trial relief. We vacate in part and remand.
On June 29, 2009, Linda Banohashim ("Ms. Banohashim") filed a complaint against Appellant, sounding in negligence. As Ms. Banohashim averred, at the time of her accident, she was leasing an apartment at Appellant's 65 East Main Street, North East, Pennsylvania, property. Ms. Banohashim's Complaint, 6/29/09, at ¶¶ 2-4. According to Ms. Banohashim, on December 9, 2007, she was walking down the rear stairs of the property when she stepped on "a wedge [that was] missing from one of the concrete [stairs]." Id. at ¶ 7. Ms. Banohashim averred that she then tripped, fell, and sustained serious injuries. Id. at ¶¶ 8-9.
After her accident, Ms. Banohashim brought suit against Appellant and claimed that Appellant was negligent for (among other things): "permitting the steps to be and remain in an unsafe, dangerous, and hazardous condition;" "failing to exercise ordinary care in the maintenance of the steps;" "failing to warn or otherwise notify [Ms. Banohashim] of the dangerous and/or defective conditions on the steps;" and, "failing to supervise or instruct [the] work of employees, servants, subcontractors, and/or agents as to the proper procedure to avoid creating a dangerous and/or defective condition on the steps." Id. at ¶ 11.
On December 22, 2011, Ms. Banohashim filed her pre-trial statement and declared that she intended to call civil engineer Ronald W. Eck, P.E., Ph.D. as an expert witness at trial. Within Dr. Eck's expert report, Dr. Eck opined: Ms. Banohashim's injuries were consistent with her version of the events; the steps in question were purposefully designed to have a "wedge" cut into the concrete – to accommodate the outlet of a drain pipe – but this design "was neither reasonable nor prudent;" the steps, as they existed, were "defective and dangerous;" given the faulty design, Appellant should have either painted the area around the wedge "yellow or white to contrast it with the surrounding concrete" or installed a handrail over the wedge "to highlight the location of the discontinuity and to make it difficult for pedestrians to reach the area;" and, Appellant "failed to use reasonable care [and did not] follow prudent practices relative to the inspection and maintenance of the defectively designed and constructed steps." Expert Report of Ronald W. Eck, P.E., Ph.D., dated October 11, 2010, at 1-9.
Prior to trial, Appellant filed a motion in limine to preclude the testimony of Dr. Eck. In relevant part, Appellant claimed that Dr. Eck should not be permitted to testify as to any "design defects" in the stairs, as Ms. Banohashim did not claim that the stairs were negligently designed. Appellant's Motion In Limine, 1/13/12, at 7. Further, Appellant claimed that Dr. Eck should be precluded from testifying as to "issues involving foreseeability, causation[, ] and damages." Id. at 9. The trial court denied Appellant's motion in limine on the morning of trial.
Following jury selection, trial began. During trial, Ms. Banohashim testified that, at the time of her December 9, 2007 accident, she had been living in Apartment 18 of 65 East Main Street, North East, Pennsylvania, for approximately four years. N.T. Trial, 6/12/12, at 57-58. Ms. Banohashim further testified that, at the time of the accident: she was "very familiar with the property;" she was aware of the fact that, in the rear of the apartment complex, "wedges" were cut out of some of the concrete steps to accommodate drain pipes; she knew where the wedges were positioned; and, she normally avoided walking "down the middle" of the steps, where the wedges were located. Id. at 42-45 and 58.
Regarding the accident, Ms. Banohashim testified that at approximately 3:00 p.m. on December 9, 2007, she left her apartment through the rear-building exit and saw a young girl crying near the rear steps. Id. at 45-46. According to Ms. Banohashim, she walked over to the girl and comforted her. Ms. Banohashim testified that, after comforting the young girl:
I went to walk down the steps from there and I forgot about the drains being in between the apartment and the steps. . . . I started walking, I stepped down . . . and just stepped right into [the drainage wedge with] . . . [m]y left foot.
Id. at 47.
As Ms. Banohashim testified, when she stepped into the wedge, she immediately broke her left ankle. Id. at 48. This caused Ms. Banohashim to fall and land on her back. Id. According to Ms. Banohashim:
[when I was] on my back[, ] . . . I  leaned up and looked, and my foot was turned outwards at a really odd, horrible angle that it was impossible to be in. And I could see the drain and it was ...