from the Judgment Entered October 4, 2018 In the Court of
Common Pleas of Philadelphia County Civil Division at No(s):
BEFORE: MURRAY, J., STRASSBURGER, J. [*] , and PELLEGRINI, J.
Eagles, LLC and Eagles Stadium Operator, LLC (collectively,
Appellants) appeal from the judgment entered in favor of
Appellee Patrick Pearson (Pearson) following a jury trial.
For the reasons that follow, we vacate the judgment, reverse
the order denying Appellants' motion for judgment
notwithstanding the verdict, and remand for entry of judgment
in favor of Appellants.
trial summarized the facts as follows:
On December 14, 2014, [Pearson], who was a Dallas Cowboys
fan, went with his lifelong friend, Stanley Milligan, to the
Eagles-Cowboys game. Notes of Testimony (N.T.) 5/22/18 at
152, 99-100. The game took place at Lincoln Financial Field,
which is managed by [A]ppellants. Answer to Complaint dated
January 9, 2017. Appellants had entered into a contract with
defendant [Executive Services Management Inc. (Apex)] to
provide security for the stadium.
During the game, [Pearson] wore a 5X dark black Dallas
Cowboys [Troy Aikman] No. 8 jersey to the Eagles-Dallas
Cowboys game in question. [Pearson] and Mr. Milligan watched
the game until halftime, when they went to the restroom. Once
in the restroom, which was crowded, they got into line to use
the urinals. When [Pearson] walked into the bathroom, the
Eagles fans were taunting the Cowboys fans, calling them
things like "a -hole" and "losers." In
response, [Pearson] told the Eagles fans to "get a ring
and we'll talk," referring to the winning of a Super
Bowl ring. [Pearson] was behind Mr. Milligan in line for the
urinal. Once they were close to the urinal, Mr. Milligan
heard someone behind him yell, "Shut the F-up."
[Pearson] believed this statement was directed towards him,
and, when he turned around, he saw a tall, white kid who
smelled of alcohol. Mr. Milligan heard the phrase again,
uttered closer to him.
Mr. Milligan began using the urinal, during which he heard a
scuffle to the side. Someone had walked up to [Pearson],
grabbed the Dallas Cowboys knitted cap from [Pearson]'s
head and threw it in a urinal near Mr. Milligan. When Mr.
Milligan turned to see the cause of the commotion, he no
longer saw [Pearson]. [Pearson] testified that the young man
who yelled at him had lunged at him, that he put his hands
up, and somehow ended up on the floor. Mr. Milligan pushed
through the crowd to find
[Pearson] surrounded, on the floor, with four or five people
holding him down, twisting his leg, and choking him. The man
who had said "shut the F-up" may have been
underneath [Pearson] at one point during the struggle, though
Mr. Milligan did not see him. [Pearson] described one of the
men, whom Mr. Milligan grabbed, as an "older white man
in his mid 40s." The men attacking [Pearson] ran off
when someone yelled "security," or that security
was coming. Mr. Milligan and another individual picked
[Pearson] up and stood guard. When [Pearson] stood up, he
noticed his right foot was turned at a 90-degree angle.
Eventually, a defendant Apex employee, who had been summoned
by one of the game attendants, entered the restroom; he asked
[Pearson] if he could stand but was unable to locate the
attackers. At approximately 10:05 PM, defendant Apex called
for medical personnel to be dispatched to the bathroom.
Medical personnel was dispatched at 10:07 PM and was on the
scene in the bathroom at 10:09 PM. Security placed [Pearson]
in a wheelchair and took him to the security booth where he
was treated for a "possible right ankle fracture."
Defendant Apex was unable to locate the men who attacked
[Pearson]. Defendant Apex did not call the police until 10:20
PM. No defendants ever provided police with any security
footage concerning the attack.
[Pearson] was taken to Methodist Hospital via ambulance at
10:37 p.m. He subsequently underwent two surgeries at
Einstein Hospital. He had two rods and 10 pins placed in his
right leg. After 90 days with a cast on his right leg,
[Pearson] underwent physical therapy. He now walks with a
limp and has pain in his right leg.
Trial Court Opinion, 3/13/19, at 2-4 (record citations
August 2, 2016, Pearson commenced this personal injury action
against Appellants and Apex. Following preliminary objections,
Pearson filed amended complaints on September 2 and October
11, 2016. Pearson raised allegations of negligence against
Appellants and Apex relating to their security program at the
stadium, which he claimed caused his injury. On October 21,
2016, Appellants filed an answer with new matter. On December
4, 2017, Appellants filed motions for summary judgment, which
the trial court denied on February 1, 2018.
trial court summarized the remaining procedural history:
On May 25, 2018, following a jury trial before this [c]ourt,
the jury returned a verdict for [Pearson.] . . . The jury
found that [Appellants'] and [Apex's] negligence were
a factual cause of [Pearson]'s harm. Specifically, the
jury found that [A]ppellants' causal negligence was 50%,
 Apex's causal negligence was 30%, and [Pearson]'s
own causal negligence was 20%. The jury awarded [Pearson]
$700, 000 in damages.
On May 30, 2018, [Pearson] filed a post-trial motion
requesting that this [c]ourt grant delay damages against all
defendants. On June 4, 2018,  Apex, as well as
[A]ppellants, filed post-trial motions[, including a motion
for judgment notwithstanding the verdict].
As to [Pearson]'s motion for delay damages, on June 19,
2018, [A]ppellants filed a response seeking to limit the
amount granted to [Pearson] in delay damages, and on June 20,
2018,  Apex did as well. On July 1, 2018, [Pearson] filed a
response in support of seeking greater delay damages from 
Apex, and on July 8, 2018, [Pearson] filed the same response
concerning [A]ppellants. On July 11, 2018, this [c]ourt
granted [Pearson] delay damages in the amount of $10, 897.30
as to [A]ppellants and $6, 156.16 as to  Apex.
As to [A]ppellants' post-trial motions, on June 11, 2018,
[Pearson] responded in opposition to [A]ppellants'
post-trial motions. On September 28, 2018, this [c]ourt
[A]ppellants post-trial motions, and judgment was entered
accordingly. This timely appeal followed.
Id. at 1-2 (footnotes omitted).
appeal, Appellants present the following issues for review:
A. ARE [APPELLANTS] ENTITLED TO THE ENTRY OF A JUDGMENT
N.O.V. DUE TO [PEARSON]'S FAILURE TO MEET HIS BURDEN OF
PROVING A DUTY, A BREACH OF ANY DUTY OR THE REQUISITE ELEMENT
OF CAUSATION OR, IN THE ALTERNATIVE, ARE [APPELLANTS]
ENTITLED TO A NEW TRIAL BASED ON THE WEIGHT OF THE EVIDENCE?
B. ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE TRIAL
COURT'S HARMFUL, PREJUDICIAL ERROR IN REFUSING TO ALLOW
DEFENSE COUNSEL TO IMPEACH [PEARSON] WITH HIS PRIOR
DEPOSITION TESTIMONY CONCERNING THE SUDDEN NATURE OF THE
C. ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE TRIAL
COURT'S HARMFUL, PREJUDICIAL ERROR IN ALLOWING NUMEROUS
REFERENCES TO INSURANCE TO BE HEARD BY THE JURY?
D. ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE TRIAL
COURT'S HARMFUL, PREJUDICIAL ERROR IN CHARGING THE JURY
WITH STANDARD JURY INSTRUCTION 18.120, AND NOT IN ACCORDANCE
WITH THE SUPREME COURT'S DECISION, IN Feld v.
Merriam, OR THIS COURT'S DECISION, IN Reason v.
Kathryn's Korner Thrift Shop, CONCERNING THE DUTY
OWED BY [APPELLANTS] TO [PEARSON]?
E. ARE [APPELLANTS] ENTITLED TO A NEW TRIAL DUE TO THE TRIAL
COURT'S HARMFUL, PREJUDICIAL ERROR IN REFUSING TO RULE
UPON THE ISSUE OF WHETHER THE JURY WOULD BE CHARGED WITH
COMPARATIVE NEGLIGENCE AND WHETHER THE ISSUE WOULD BE
SUBMITTED TO THE JURY UNTIL AFTER THE CLOSING ARGUMENTS TOOK
Appellants' Brief at 4-5.
their first issue, Appellants argue that the trial court
erred in denying their motion for judgment notwithstanding
the verdict (judgment n.o.v. or JNOV). We recognize the
following standard of review:
We will reverse a trial court's grant or denial of a
judgment notwithstanding the verdict only when we find an
abuse of discretion or an error of law that controlled the
outcome of the case. Further, the standard of review for an
appellate court is the same as that for a trial court.
There are two bases upon which a judgment [notwithstanding
the verdict] can be entered; one, the movant is entitled to
judgment as a matter of law and/or two, the evidence is such
that no two reasonable minds could disagree that the outcome
should have been rendered in favor of the movant. With the
first, the court reviews the record and concludes that, even
with all factual inferences decided adverse to the movant,
the law nonetheless requires a verdict in his favor. Whereas
with the second, the court reviews the evidentiary record and
concludes that the evidence was such that a verdict for the
movant was beyond peradventure.
United Envtl. Grp., Inc. v. GKK McKnight, LP, 176
A.3d 946, 959 (Pa. Super. 2017) (quoting Shiflett v.
Lehigh Valley Health Network, Inc., 174 A.3d 1066, 1081
(Pa. Super. 2017)).
assert that they are entitled to judgment notwithstanding the
verdict based on their contention that Pearson "failed
to set forth a prima facie case of negligence
against [Appellants]." Appellants' Brief at 17.
Specifically, Appellants contend that Pearson failed to prove
that Appellants were negligent in implementing their security
program and thus, Pearson could not demonstrate that
Appellants breached a duty that caused his injury.
case alleging negligence, the plaintiff has the burden to
prove the following four elements: "1. [a] duty or
obligation recognized by law[, ] 2.[a] breach of the duty[, ]
3. [c]ausal connection between the actor's breach of the
duty and the resulting injury[, and] 4. [a]ctual loss or
damage suffered by complainant." Wilson v. PECO
Energy Co., 61 A.3d 229, 232 (Pa. Super. 2012) (quoting
Cooper v. Frankford Health Care System, Inc., 960
A.2d 134, 140 n.2 (Pa. Super. 2008) (citation omitted).
"[I]t is incumbent on a plaintiff to establish a causal
connection between defendant's conduct, and it must be
shown to have been the proximate cause of plaintiff's
injury." Lux v. Gerald E. Ort Trucking, Inc.,
887 A.2d 1281, 1286 (Pa. Super. 2005) (quotations and
duty owed to a business invitee is the highest duty owed to
any entrant upon land. The landowner is under an affirmative
duty to protect a business visitor not only against known
dangers but also against those which might be discovered with
reasonable care." Truax v. Roulhac, 126 A.3d
991, 997 (Pa. Super. 2015) (en banc) (quotations and
citation omitted). This Court has explained:
In determining the scope of duty property owners owe to
business invitees, we have relied on Restatement (Second) of
Torts § 343, which provides:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land, if but
only if, he:
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
See Neve v. Insalaco's, 771 A.2d 786, 790 (Pa.
Super. 2001) (quoting Restatement (Second) of Torts §
An invitee must demonstrate that the proprietor deviated from
its duty of reasonable care owed under the circumstances.
Id. at 791. Thus, the particular duty owed to a
business invitee must be determined on a case-by-case basis.
. . .
Campisi v. Acme Markets, Inc., 915 A.2d 117, 119-20
(Pa. Super. 2006) (some citations omitted).
argue that the trial court erred in concluding that they
deviated from the duty of reasonable care owed to Pearson
under the circumstances by not having security personnel
stationed in the stadium restrooms on the basis that it was
foreseeable that altercations could take place in the
bathrooms. Appellants assert, "[t]he mere fact that
there was not a guard placed in the bathrooms to monitor the
patrons in no way established any negligence with regard to
the program of security actually offered."
Appellants' Brief at 21. Appellants contend that Pearson
"cannot meet his burden of proving negligence by
claiming that he would not have been injured if a different
program of security was provided, i.e., an extra
security guard stationed inside the bathroom."
Id. (emphasis in original).
support of this argument, Appellants rely on our Supreme
Court's decision in Feld v. Merriam, 485 A.2d
742 (Pa. 1984). In Feld, the plaintiffs had just
returned to their assigned parking space in the parking
garage of their apartment complex when three armed
individuals assaulted them and held them at gunpoint.
Id. at 744. The plaintiffs sued the owners of the
apartment complex, "alleging a duty of protection owed
by the landlord, the breach of the duty, and injuries
resulting therefrom." Id. at 744-45. The jury
returned a verdict in favor of the plaintiffs and this Court
appeal to the Supreme Court, "[t]he threshold question
is whether a landlord has any duty to protect tenants from
the foreseeable criminal acts of third persons, and if so,
under what circumstances." Id. at 745. ...