Wade Clark Mulcahy LLP

The phrase “watch your step!” has new meaning when it comes to jury instructions.  At least that’s what the plaintiff, Donna Kaminski, found out in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/04/Kaminki-Case.pdf">Kaminski v. Sosmetal Products, Inc., et al.</a></em><span><em> </em></span>(Pa. Commw. Ct. 2019) when she filed a negligence suit against the defendant property owners. The Commonwealth Court of Pennsylvania decided the case following the plaintiff’s appeal of her post-trial motions after the trial court ruled against her.

Plaintiff tripped and sustained injuries while walking on a public sidewalk that abutted the Defendants’ property.  As a result, Kaminski sued Sosmetal Products, Inc. and the trustees, who are the property owners.  In her complaint, Kaminski argued that “a dangerous, negligent and/or defective condition, existed on [D]efendants’ premises and sidewalk . . . and [D]efendants knew or should have known of the existence.”  Ultimately, the defendants admitted to responsibility for the sidewalk and its upkeep.  Despite this fact, after asking clarifying questions, the jury decided in favor of the defendants.  The decision ultimately came down to three jury instructions that were given.

Following the trial court decision, plaintiff filed an appeal arguing that only one jury instruction, Pa. SSJI (Civ) 18.80, should have been given.  This instruction basically says that those who have the obligation to maintain a sidewalk that abuts their property have a duty to keep the sidewalk “reasonably safe” and to avoid “unreasonable risk of harm to pedestrians who properly use the sidewalk.”  The other two instructions dealt with the classification of a pedestrian walking on a public sidewalk (invitee, licensee, or trespasser) and the duty of care for a licensee, respectively.  In this appeal, the plaintiff had to demonstrate that the court below had made an error of law or abused its discretion.  Plaintiff disagreed with the fact that she was considered a licensee and felt that this instruction unfairly influenced the jury.

The court disagreed with the plaintiff’s assertions.  First, it contended that it has been well-established under Pennsylvania case law that those who use public sidewalks in the manner of Kaminski’s case are considered licensees, citing <em>Alexander v. City of Meadville</em>, 61 A.3d 218, 221-22 (Pa. Super. 2012).  Additionally, the court stated that Restatement Section 342 clearly outlines how licensees, such as the plaintiff, are to be treated by the property owners in regards to a duty of care.  Ultimately, the court felt that it would be inappropriate to allow for Pa. SSJI (Civ) 18.80 to be read to the jury without the other two instructions.  Therefore, the lower court did not act in error.

The bottom line is that plaintiffs cannot dictate the inclusion or exclusion of jury instructions in negligence cases just to suit their arguments and they cannot ignore case law that has clearly established a specific position that may not suit their case.    The trial court did not abuse its discretion by including all three jury instructions -- contrary to plaintiff's argument on appeal.  Thanks to Gabi Outlaw for her contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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