When Should a Settling Defendant be on the Verdict Slip at Trial?

On September 4, 2015, in Dunlap v. Ridley Park Swim Club, et al., No. 3199 EDA 2014, the Superior Court of Pennsylvania addressed the issue of when a settling defendant should be on the Verdict Slip at trial.

Maryann C. Dunlap (“Dunlap”) was swimming at Ridley Park’s pool.  While she was leaving Ridley Park’s property, a tree fell on her and caused injuries.  The tree was located on property owned by Defendant Harper Associates and no part of the tree overhung over Ridley Park’s property.  The tree was dead and decaying.  Prior to trial, Harper Associates and Dunlap submitted their dispute to binding high/low arbitration and reached a settlement.   At trial, the court ruled that Harper would not appear on the verdict form.  The trial court reasoned that Ridley Park would be unable to prove a prima facie case of negligence against Harper because Ridley Park did not retain an expert witness to testify regarding Harper’s negligence.  The jury returned a verdict in favor of Dunlap and against Harper Associates in the amount of $750,000.00.

On appeal, Harper Associates sought a new trial because the trial court refused to submit the negligence of Harper to the jury even though the tree that injured Dunlap was owned by Harper, was located on property owned and possessed exclusively by Harper, and where Harper freely admitted that it failed to inspect and maintain the tree.

In a Memorandum Opinion, the Superior Court noted that case law has held that a defendant has a right to have a settling defendant appear on the verdict form in order to apportion liability.  Davis v. Miller, 123 A.2d 422, 424 (Pa. 1956).  More recently, the Superior Court has held that Davis only requires a settling co-defendant to appear on the verdict form upon showing of a prima facie case of negligence. Herbert v. Parkview Hosp., 854 A.2d 1285, 1290 (Pa. Super, 2004), appeal denied, 872 A.2d 173 (Pa. 2005).  Thus, the Superior Court determined that the primary issue was whether Ridley Park made a prima facie showing of Harper’s negligence.

The trial court held Ridley Park was required to call an expert witness and, thus, failed to prove a prima facie case.  As stated by the Superior Court, a prima faciecase for negligence requires four elements: (1) a duty recognized by law; (2) a breach of that duty; (3) a casual connection between the conduct and the resulting injury; and (4) actual damages.  Moreover, expert testimony is required when the subject matter of the negligence is outside the skill and knowledge of an ordinary layman. Young v. Commw., Dep’t of Transp., 744 A.2d 1276, 1278 (Pa. 2000).

On appeal, the Superior Court concluded that Harper possessed a duty to visually inspect the tree and that no expert testimony was required to reach such a conclusion.  Barker v. Brown, 340 A.2d 566 (Pa.Super. 1975) (a landowner has a duty to visually inspect trees next to a developed area.)  Therefore, Ridley Park made a prima facie showing that Harper had a duty to visually inspect the subject tree.  The Superior Court also held that no expert testimony was required to address the question of whether Harper breached their duty.  Whether a tree was visually inspected is a question for the jury and does not require specialized knowledge or training.

In addressing whether Harper’s alleged breach caused the subject tree to fall, the Superior Court found that expert testimony was required.  The Superior Court noted that Ridley Park could rely upon expert testimony offered by Dunlap’s own expert in arboriculture who testified regarding the tree at issue and the causation issue.  Accordingly, the Superior Court held that the jury could have reasonably found that Harper would have (or should have) noticed the tree was a danger if it visually inspected the tree prior to the incident.  It was undisputed that the tree caused Dunlap’s injuries.

The Superior Court held that because Ridley Park made a prima facie showing that Harper was negligent, the trial court abused its discretion by not including Harper Associates on the verdict form and permitting the jury to apportion responsibility between Ridley Park and Harper Associates.   Therefore, a new trial was ordered.

Sean P. Buggy

Office: King of Prussia, Philadelphia
Phone: (610) 977-2975
Email: sbuggy@forryullman.com
Practice Areas: Third Party, UM/UIM, Premises Liability, Products Liability,
Construction Litigation, Dram Shop/Liquor Liability, Appellate Practice, General Liability