Settling Defendant Should Have Been on Verdict Sheet (PA)

Earlier this month, the Superior Court of Pennsylvania vacated and remanded a trial court’s decision in Dunlap v Ridley Park Swim Club because the trial court failed to include a settling defendant on the jury verdict form when the non-settling defendant made a prima facie showing of negligence on the part of the settling defendant.

On June 24, 2009, the plaintiff, Maryann Dunlap (“Dunlap”) was swimming at Ridley Park.  Upon exiting Ridley Park, Dunlap was seriously injured when a tree fell on her.  The tree at issue was situated on land owned by Harper Associates (“Harper”) and was approximately 20 feet from the property line separating Harper’s land and Ridley Park’s land.  Factually, it was established that the tree was dead and decaying, and that Harper did not inspect or otherwise examine the tree prior to Dunlap’s accident.  Inevitably, on June 25, 2012, Dunlap filed suit against Ridley Park and Harper, among others.

Prior to trial, Harper and Dunlap submitted to binding arbitration without Ridley Park’s participation.  The arbiter awarded Dunlap $350,000 as to Dunlap, and the parties agreed that  any recovery against Ridley Park would be reduced only to the extent of the fault attributed to Harper.

On March 17, 2014, the trial commenced, in which, Harper did not participate at all.  At the close of Dunlap’s case-in-chief, the trial court ruled that Harper would not be on the verdict sheet.  The judge reasoned that Ridley Park was unable to prove a prima facie case of negligence against Harper since it had not retained an expert to testify with respect to Harper’s alleged negligence.  Ultimately, the jury awarded Dunlap $750,000 against Ridley Park.

Ridley Park timely appealed, raising a number of issues with respect to the failure to include Harper on the verdict form.  The crux of the appeal came down to whether Ridley Park made a prima facie showing of Harper’s negligence.  First, the Superior Court examined the issue of duty, and held that there is a duty to visually inspect trees next to developed or residential properties.  Next, the Superior Court stated that because it was established that Harper never inspected the tree, Harper breached its duty.  With respect to both Harper’s duty and breach, the Superior Court ruled that an expert was not needed to establish either issue.  Finally, the Superior Court concluded that the issue of causation in this case, based on the evidence presented, was a factual question for the jury and should not have been decided by the trial court as a matter of law.  Although the Superior Court conceded that this issue would require an expert, the Superior Court found that the evidence presented at the trial was sufficient for the jury to make a determination on the matter.

For these reasons, the Superior Court concluded that Ridley Park did in fact make a prima facie showing of Harper’s negligence; thus, the trial court abused its discretion by failing to include Harper on the verdict form.  Ultimately, the Superior Court vacated the judgment and ordered a new trial because if Harper were included on the verdict form, the recovery against Ridley Park would have been reduced by the amount of fault apportioned to Harper per the agreement reached at the pre-trial arbitration.

Thanks to Erin Connolly for her contribution.

For more information, contact Denise Fontana Ricci at .