E. Pennock v. Kennett Consolidated S. D.
675 C.D. 2021
| Pa. Commw. Ct. | Apr 1, 2022Background
- At a 2015 high‑school graduation on Kennett Consolidated School District property, Pennock walked across a grassy slope from the parking lot and fell, suffering severe ankle fractures.
- Pennock wore backless slip‑on sandals; her husband later photographed a hole/depression in the grass where she fell.
- Pennock sued the District for negligence, alleging improper parking‑lot grading, erosion, a concealed hole, and negligently maintained turf where pedestrians were allowed to walk.
- A jury trial was held in September 2020; the jury found the District not negligent, so it did not reach contributory‑negligence questions.
- Pennock moved for a new trial, challenging several evidentiary rulings: admission of evidence of no prior injuries at the site; admission of evidence of alternate walking routes; exclusion of expert testimony about OSHA/ADA standards; admission of the District expert’s testimony about Pennock’s sandals, the grass surface, and alleged haste; and exclusion of exhibits about that expert’s testimony being precluded in unrelated cases.
- The trial court denied the post‑trial motion; the Commonwealth Court affirmed, rejecting Pennock’s evidentiary challenges and finding any error harmless where applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of evidence that no prior injuries occurred at the site | Evidence of no prior incidents was unreliable, irrelevant, prejudicial | Evidence is probative of lack of actual/constructive notice and of causation | Admissible — relevant to notice and causation; no abuse of discretion; no showing of unfair prejudice |
| Admission of evidence of available alternate walking routes | Choice‑of‑ways doctrine inapplicable because Pennock was unaware of danger; she was compelled to cross grass | Evidence rebuts claim she was compelled to cross grass; not an attempt to improperly invoke choice‑of‑ways | Admissible — properly used to rebut compulsion claim; any error harmless because jury found no defendant negligence |
| Exclusion of expert testimony about OSHA and ADA requirements | OSHA/ADA standards relevant to standard of care despite not directly applicable | Standards inapplicable to a sloped grassy non‑walkway and thus irrelevant and potentially prejudicial | Exclusion affirmed — OSHA/ADA not applicable here; evidence irrelevant and properly excluded under trial court discretion |
| Admission of District expert testimony that sandals contributed, grass was reasonable, and plaintiff was hurrying | Testimony speculative, especially about haste and causal effect of sandals | Opinions based on expert’s field, observed facts (sandal lost), and cross‑examination elicited haste testimony | Admissible — expert opinions within expertise and based on evidence; haste testimony was elicited by plaintiff on cross‑examination; any error harmless as contributory negligence was not reached |
| Exclusion of exhibits showing this expert’s testimony was previously precluded in unrelated cases | Exhibits would show a pattern of the expert’s testimony being precluded as speculative | Prior preclusions were unrelated, potentially cumulative, and one was in New Jersey under different rules | Exclusion affirmed — trial court allowed cross‑examination on the preclusions; additional exhibits were needlessly cumulative and not sufficiently analogous |
Key Cases Cited
- Brewington v. City of Philadelphia, 199 A.3d 348 (Pa. 2018) (adopts Restatement §343 framework; notice is essential to landowner liability)
- King v. Pittsburgh Water & Sewer Authority, 139 A.3d 336 (Pa. Cmwlth. 2016) (plaintiff bears burden to prove notice of defect)
- Stevens v. Department of Transportation, 492 A.2d 490 (Pa. Cmwlth. 1985) (notice is an essential element of a premises‑liability claim)
- Houston by Houston v. Central Bucks School Authority, 546 A.2d 1286 (Pa. Cmwlth. 1988) (absence of prior falls probative of lack of notice)
- Spino v. John S. Tilley Ladder Co., 696 A.2d 1169 (Pa. 1997) (in product‑liability context, absence of prior accidents can be admissible on causation)
- Boyle v. Independent Lift Truck, Inc., 6 A.3d 492 (Pa. 2010) (errors about contributory negligence are harmless if jury finds defendant not negligent)
- Henerey v. Shadle, 661 A.2d 439 (Pa. Super. 1995) (trial judge’s role in balancing probative value and prejudicial effect of evidence)
- Smith v. Celotex Corp., 564 A.2d 209 (Pa. 1989) (scope of cross‑examination and impeachment within trial court discretion)