Bicycle • Negligence • Premises Liability • Personal Injury • Opinion Evidence

Cruz v. Congreso de Latinos Unidos, Inc., PICS Case No. 13-3381 (C.P. Philadelphia Oct. 31, 2013) Bernstein, J. (6 pages).

The court affirmed the order denying the pre-trial motions of Congreso de Latino Unidos which sought a new trial, a new trial on damages, or remittitur.

Cruz seriously injured her leg when she struck a screw-like protrusion from a standpipe on the premises of Congreso. At the time of the accident, Cruz was riding her bicycle along the sidewalk on Congreso’s premises. Cruz was 15 years old at the time of the accident. She suffered injuries that left her with a permanent scar and Cruz continued to experience burning pain three years after the accident. The jury found Cruz 22 percent negligent and Congreso 78 percent negligent. A judgment in the amount of $945,750 was entered in favor of Cruz.

Congreso argued that the court erred in failing to provide a negligence per se charge to the jury. However, Congreso never requested this charge at trial and the court did not find any support for it in the record.

The trial court gave a jury instruction regarding a land owner’s duty of care to members of the public traversing a public sidewalk. Congreso claimed the court should instead have given an instruction regarding licensees. The court held that where an individual uses a public sidewalk, permissive use is not an issue, and the individual is not a licensee.

When cross-examining Congreso’s expert witness at trial, counsel for Cruz showed photographs of the standpipe to the expert. Congreso claimed this was error. The court disagreed, because the expert actually changed his testimony after viewing the photographs to say that the standpipe could have been safer. Therefore, the probative value of the photographs outweighed any danger of unfair prejudice.

Next, Congreso argued that the court improperly precluded it from questioning plaintiff’s mother regarding her opinion of Cruz’ character trait for honesty. The court concluded this was an attempt to use a specific instance of plaintiff’s conduct to prove she was untruthful and not a credible witness, which is exactly what the evidence rules prohibit.

Finally, Congreso sought a new trial on damages alone or remittitur. Such relief is appropriate only when the award is plainly excessive and exorbitant. The issue is whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake or corruption. Given the extent of the injuries sustained by Cruz, the court did not find any evidence of irregularity with regard to the verdict.