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United States District Court, Southern District of New York
March 14, 1991
STENA LINE (U.K.) LIMITED, PETITIONER,v.SEA CONTAINERS LTD. AND FERRY AND PORT HOLDINGS LIMITED, RESPONDENTS.
This action concerns the scope of an arbitrable dispute
arising from the sale of a business. Petitioner, Stena Line
(U.K.) Limited ("Stena") seeks an order compelling arbitration
concerning a dispute over a balance sheet dated March 31, 1990,
on which a post-closing adjustment to the purchase price is to
be based. Respondents Sea Containers Ltd. ("Sea Containers")
and its wholly owned subsidiary Ferry and Port Holdings Limited
("Holdings") do not object to arbitration, but ask this Court
to limit the scope of the arbitration.
In March 1990, Stena agreed to purchase from Sea Containers,
through its subsidiary Holdings, a group of ferry businesses
operating between England and the continent of Europe and
between England and Ireland. Pursuant to the stock purchase
agreement between the parties (the "Agreement"), there was to
be a post-closing adjustment to the purchase price of $380
The adjustment was to be determined using two balance sheets,
each balance sheet to be prepared by the entity managing the
business when the relevant financial data became available.
Thus, the first balance sheet, dated December 31, 1989, was to
be prepared by Holdings, and the second, dated March 31, 1990,
was to be prepared by Stena.
Section 1.3(a) of the Agreement required that the December 31
balance sheet
be prepared in conformity with the terms of this
Agreement and present[] a true and fair view of
the Ferry Business as of the date thereof. The
December 31 Balance Sheet shall be prepared in
with the books and records of the Ferry Business
[and] in conformity with United Kingdom generally
accepted accounting principles [UKGAAP], applied
on a consistent basis with prior periods."
Section 1.3(c) of the Agreement imposed the same requirements
on the March balance sheet, with the additional proviso that it
"be prepared on a consistent basis with the policies set forth
in the notes to the December 31 Balance Sheet." Id. at 16.
Section 1.4 of the Agreement provides for a "Post Closing
Adjustment," which will adjust the sale price to account for
changes in the business occurring during the period between the
payment of initial consideration and the closing. This
adjustment is to incorporate a calculation based in part on the
"Losses," or decline in the figure designated as "net equity"
from the December to the March balance sheet, with a cap of $20
million. See Agreement § 1.3(c), at 17. Thus, even if the
difference were greater than $20 million, Stena's recovery
would be based on the lower figure.
The party receiving each balance sheet was given 60 days
after receipt to advise the opposing party in writing of the
amounts and descriptions of any adjustments that the receiving
party felt were necessary. Agreement at 12, 17. The Agreement
provides for expedited arbitration of unresolved differences,
in which they are to be submitted to an independent accountant
of national standing in England.*fn2 Agreement § 1.3(d), at
The closing was held on April 9, 1990. On April 5, 1990,
Holdings delivered the December 31 balance sheet to Stena.
Stena informed Holdings by telex of their belief that the
December balance sheet was not prepared in accordance with the
terms of the Agreement, but Stena did not dispute the matter
formally at that time. Stena claims that this was because they
had concluded that the operating losses for the quarter ending
March 31 would easily exceed the $20 million cap, and that "if
losses equaled or exceeded the $20 million cap, the December 31
balance sheet would have no economic impact on the parties."
Petitioner's Memorandum of Law in Support of Its Motion to
Compel Arbitration ("Pet. Mem.") at 5. Therefore, Stena decided
not to go to the expense of auditing and arbitrating the
However, Stena did state the following in its telex:
The purpose of this letter is to advise you that
we do not object to the net equity of December 31
Balance Sheet solely for the purpose of
determining losses. Notwithstanding the foregoing,
we do not agree or in any way concede that the
December 31 Balance Sheet was prepared in
accordance with the terms of Stock Purchase
Agreement and do not waive any rights whatsoever
in respect of the preparation of the March 31
Balance Sheet (and/or the adjustment).
On July 6, 1990, Stena provided Holdings with the March 31
balance sheet. Stena prepared the March 31 balance sheet in a
manner that it contends complied with the requirements of the
Agreement, but which was not wholly consistent with the
procedure used in the December 31 balance sheet. The March
balance sheet required Holdings to pay Stena $32.3 million.
Holdings objected to the calculations in the March 31 balance
sheet, and, on September 4, 1990, sent Stena a listing of the
adjustments Holdings asserted were necessary to correct the
March balance sheet. Holdings contends that the March balance
sheet is not consistent with the December balance sheet, and
is, therefore, not in conformity with the Agreement. Stena, on
the other hand, contends that the December balance sheet did
not comply with UKGAAP, and did not present a "true and fair
view" of the business, while the March balance sheet does.
Holdings interprets Stena's arbitration demand as, in part,
an attempt to challenge the validity of the December balance
sheet, a right that Holdings contends Stena has waived by its
failure to object within the contractual sixty day period.
Consequently, respondents ask this Court to "direct the
arbitrator to accept as binding the December Balance Sheet and
to follow its policies in resolving the disputes relating to
the March Balance Sheet." Respondents' Memorandum of Law in
Response to Petitioner's Motion to Compel Arbitration ("Resp.
Mem.") at 34. In the alternative, respondents request the Court
to direct the parties to proceed first to arbitrate any
disputes over the December balance sheet, and then to proceed
with a separate arbitration concerning the March balance sheet.
This Court has noted previously that the Federal Arbitration
Act, 9 U.S.C. § 1, et seq., "created a `federal policy favoring
arbitration,' which requires that courts `rigorously enforce
agreements to arbitrate.'" Scher v. Bear Stearns & Co.,
723 F. Supp. 211, 214 (S.D.N.Y. 1989) (quoting Moses H. Cone
Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1,
24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983) and Dean Witter
Reynolds Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242,
84 L.Ed.2d 158 (1985)); see also Nolde Bros. v. Local No. 358,
Bakery & Confectionery Workers Union, 430 U.S. 243, 254-55, 97
S.Ct. 1067, 1073-74, 51 L.Ed.2d 300 (1977). Further, "`"[t]he
Act leaves no place for the exercise of discretion by a
district court, but instead mandates that district courts shall
direct the parties to proceed to arbitration on issues as to
which an arbitration agreement has been signed."'" McDonnell
Douglas Finance Corp. v. Pennsylvania Power & Light Co.,
858 F.2d 825, 830 (2d Cir. 1988) (quoting Genesco, Inc. v. T.
Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir. 1987) (quoting Dean
Witter, supra, 470 U.S. at 218, 105 S.Ct. at 1241)).
This is not to say that courts will force arbitration when it
was clearly not the intention of the parties to put a given
matter under the province of an arbitration agreement. See
Chevron U.S.A., Inc. v. Consolidated Edison Co., 872 F.2d 534,
537 (2d Cir. 1989). This Court has stated that "[i]t is
fundamental that arbitration agreements are creatures of
contract law." Scher, supra, 723 F. Supp. at 214. Thus, "the
first task of a court asked to compel arbitration of a dispute
is to determine whether the parties agreed to arbitrate that
dispute. . . . [A]s with any other contract, the parties'
intentions control, but those intentions are generously
construed as to issues of arbitrability." Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105
S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985).
Once a court has determined that an arbitration clause
exists, "any doubt concerning the scope of arbitrable issues
should be resolved in favor of arbitration, whether the problem
at hand is the construction of the contract language itself or
an allegation of waiver, delay, or a like defense to
arbitrability." Moses H. Cone Memorial Hospital, supra, 460
U.S. at 24-25, 103 S.Ct. at 941-942. In fact, "[t]he existence
of an arbitration clause in [an
agreement] raises a presumption of arbitrability that can be
overcome only if `it may be said with positive assurance that
the arbitration clause is not susceptible of an interpretation
that covers the asserted dispute. Doubts should be resolved in
favor of coverage.'" Associated Brick Mason Contractors, Inc.
v. Harrington, 820 F.2d 31, 35 (2d Cir. 1987) (quoting AT & T
Technologies, Inc. v. Communications Workers of America,
475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648 (1986));
see also Kerr-McGee Refining Corp. v. M/T Triumph,
924 F.2d 467, 470 (2d Cir. 1991).
In trying to determine the scope of arbitration provisions,
courts have distinguished between "narrow" and "broad"
arbitration clauses. Broad clauses purport to refer all
disputes arising out of a contract to arbitration, while narrow
clauses limit arbitration to a specific type of dispute.
See McDonnell Douglas, supra, 858 F.2d at 832. "With narrower
clauses . . . a court considering the appropriate range of
arbitrable issues must `consider whether the [question at]
issue is on its face within the purview of the clause.'" Id. at
832 (quoting Rochdale Village, Inc. v. Public Service Employees
Union, 605 F.2d 1290, 1295 (2d Cir. 1979)).
The clause in question here is clearly a narrow one. The
Agreement prescribes arbitration only for disputes concerning
the two balance sheets. In addition, the Agreement explicitly
prohibits the arbitrator from conducting an independent audit,
and puts a number of express restrictions on his inquiry. Thus,
the Agreement identifies only a small subset of all possible
disputes as arbitrable. Consequently, this Court must determine
the relevant scope of the arbitration ordered herein. All
conditions precedent have been satisfied for arbitration to
occur regarding the March balance sheet. The sole issue is the
extent to which the arbitrator may consider the December
balance sheet as well.
Holdings is correct in asserting that the December balance
sheet is not arbitrable at this point. The procedures set out
in the Agreement were not satisfied in regard to the December
balance sheet.*fn3 The remaining issue, which concerns the
extent to which procedures used in the December balance sheet
must be followed in the March balance sheet, is within the
province of the arbitration. The Agreement dictates, inter
alia, that both balance sheets are to present a "true and fair
view" of the business, and are to comply with UKGAAP, to be
applied "on a consistent basis" with prior periods. The March
balance sheet has the additional requirement of consistency
with the "policies set forth in the notes" to the December
balance sheet. However, that provision does not necessarily
mandate that all procedures used in preparing the December
balance be slavishly followed in preparing its successor, to
the exclusion of all other requirements.
The provisions of the Agreement make clear that the
arbitrator has a duty to determine whether the March balance
sheet complies with all of the requirements of the Agreement.
This Court must grant him full rein in weighing the importance
of each of the requirements, and the proper balance to be
struck among UKGAAP standards, consistency, and a "true and
fair" picture of the business. The Court will not prevent the
arbitrator from analyzing the December balance sheet, and
indeed assumes that the arbitrator will do so, to the extent
necessary to determine its impact on the March balance sheet.
The arbitrator shall determine whether the March balance sheet
is in accord with the Agreement. If in doing so the arbitrator
determines that the December balance sheet does not comply with
the Agreement, the arbitrator shall not alter the findings of
the December balance sheet, unless the parties agree otherwise.
However, the arbitrator need not be constrained to reapply any
incorrect procedures to the March balance sheet, but
shall be free to apply the correct standards as dictated by the
For the reasons set forth above, the Court grants Stena's
petition to compel arbitration concerning the March 31 balance
sheet, with the restriction that the arbitrator cannot alter
the results of the December 31 balance sheet without the
consent of all parties. The Court does not, however, restrict
the arbitrator from examining the December balance sheet, nor
from examining the validity of the procedures used therein, for
purposes of determining whether the proper procedures were used
in preparing the March balance sheet.
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New Jersey Superior Court, Law Division
Decided: January 28, 1980.
ROBERT S. MESSER, PLAINTIFF,v.TOWNSHIP OF BURLINGTON, TOWNSHIP COUNCIL OF BURLINGTON TOWNSHIP AND ZONING BOARD OF ADJUSTMENT OF TOWNSHIP OF BURLINGTON, DEFENDANTS
Haines, J.s.c.
[172 NJSuper Page 482] Plaintiff is partial owner of 92.5 acres of land in Burlington Township, Burlington County, New Jersey which he proposes to develop. Eighty-five and one-half acres of his land were zoned to permit single-family detached dwellings on 20,000 to 40,000 square foot lots. Plaintiff prefers to build single-family houses on smaller lots and townhouses on this part of his property. The remaining seven acres are zoned and planned by plaintiff for commercial purposes. His application to the Burlington Township
[172 NJSuper Page 483]
Board of Adjustment for a variance which would permit his proposed development was denied. He appealed the denial to the township council. Before the appeal was heard a new zoning ordinance was adopted for the township. It placed all of plaintiff's property, including the seven acres planned for commercial use, in a residential zone and permitted construction of single-family detached houses only on 20,000 square foot lots. In addition, the new ordinance limited appeals from the board of adjustment to the township council to those cases in which the board approved a "d" variance, N.J.S.A. 40:55D-70(d), as permitted by N.J.S.A. 40:55D-17(a). Consequently, plaintiff was advised that council no longer had jurisdiction to consider the appeal and it was dismissed.
Plaintiff seeks relief here from the denial of the board, the refusal of the council and the provisions of the new ordinance. He argues that (1) the township council erred when it refused to consider his appeal; (2) the decision of the board of adjustment was arbitrary and (3) the new ordinance, insofar as it eliminated the commercial zoning, is unconstitutional. Defendants, in addition to denying these claims, contend that the basic nature of the relief sought by the plaintiff may be granted only through an amendment to the zoning ordinance. Dover Tp. v. Dover Tp. Bd. of Adj. , 158 N.J. Super. 401, 411-414 (App.Div.1978). The new ordinance establishes an application procedure for "rezoning," a term appearing often enough in zoning literature to be acceptable. It denotes nothing more than an amendment to a zoning ordinance which changes use restrictions. Plaintiff did not pursue this route since it was not in existence at the time he made his application to the board of adjustment, and defendants now say that this constitutes a failure to exhaust his administrative remedies.
After pretrial defendant township moved for summary judgment as to all issues. Meanwhile, the record of the proceedings below and the new zoning ordinance were submitted to the
[172 NJSuper Page 484]
court. It was agreed that all issues, except the constitutional challenge, would be submitted for decision on the basis of this material, without a trial. This opinion therefore disposes of the submitted issues by way of final judgment, determining the summary judgment motion as a part of that disposition.
A. The Appeal to the Township Council
The provisions of the new zoning ordinance limiting appeals to the township council to cases involving the approval of "d" variances is proper under N.J.S.A. 40:55D-17(a) which provides in pertinent part:
Any interested party may appeal to the governing body (1) any final decision of a board of adjustment approving an application for development pursuant to [N.J.S.A. 40:55D-70d], and (2) if so permitted by ordinance, any other final decision of a board of adjustment . . . .
It has long been the rule in this jurisdiction that an amendment to a zoning ordinance, effective during the course of an appeal from a decision of a board of adjustment, must be considered by, and is binding upon the appellate tribunal. Socony Vacuum v. Mt. Holly , 135 N.J.L. 112 (Sup.Ct.1947); Saint Joseph's Hospital v. Finley , 153 N.J. Super. 214, 225 (App.Div.1977). Consequently, the township council was bound by the provisions of the new ordinance and no longer had jurisdiction over the appeal. Its refusal to entertain it was proper.
B. The Validity of the Rezoning Provisions of the New Ordinance
Burlington Township's new zoning ordinance authorizes the filing of rezoning applications. It requires the board of adjustment and the planning board to hear these applications. These boards are to make findings of fact to reach conclusions of law and then recommend the granting or the denial of the application
[172 NJSuper Page 485]
in accordance with review standards set forth in the ordinance. On receipt of the recommendation council conducts a hearing and decides whether to amend the zoning ordinance. Rezoning is acknowledged to be a legislative act "left to the sole discretion of the Township Council," and any amendment authorized by council "may be consistent with the applicant's request, contrary to the applicant's request, or a modification of the applicant's request. . . ." When an amendment is authorized, procedures for its adoption must follow those set forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
These provisions are not mentioned in our zoning statutes, have not been considered in our judicial decisions and no literature concerning them has been brought to the court's attention. They are unique and their validity must be determined.
The procedure is not prohibited by any section of the Municipal Land Use Law. N.J.S.A. 40:55D-62(b) requires that "no zoning ordinance and no amendment or revision to any zoning ordinance shall be submitted to or adopted by initiative or referendum." It is the only express prohibition of particular amending procedures. These prohibitions do not affect the township ordinance. The terms "initiative" and "referendum" refer to methods by which legislation may be adopted by the people; Sparta Tp. v. Spillane , 125 N.J. Super. 519, 523 (App.Div.1973); they have no application to the legislative enactments of governing bodies. Moreover, the rezoning procedure authorized by the township merely permits the initiation of a request for an amendment and does not affect the discretion which the governing body has in such matters.
N.J.S.A. 40:55D-62(a) provides that "the governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon." The method by which a governing body may launch an amendment for consideration is not set forth. The procedure is legislative. It may be commenced in any of the myriad ways
[172 NJSuper Page 486]
in which legislation is brought about, e.g. , through public petition, correspondence, public appearances and communications of all kinds from the community. Plaintiff could have appeared before the township council and requested an amendment to the zoning ordinance; the governing body, if it so chose, could have acceded to his request. The procedure established by Burlington Township's new ordinance establishes one method by which legislative needs may be brought to its council's attention. The authority to adopt this section of the ordinance may be found in the statutory delegation of the power to amend to which it is incidental. Juzek v. Hackensack Water Co. , 48 N.J. 302, 314-315 (1966).
The adoption of procedures relating to zoning matters must not add unreasonably to the burdens imposed upon an applicant for zoning relief; such additions violate statutory directives. Oakwood at Madison v. Madison , 72 N.J. 481, 523 (1977); Yousefian v. Wayne Tp. , 152 N.J. Super. 111, 125 (Law Div.1977). The rezoning procedure here adds no such burdens. On the contrary, it confers a benefit by providing an additional approach to the legislative ear. It does not require an applicant to forsake other, informal means with which to promote zoning legislation.
I conclude that the Township was authorized to establish rezoning procedures. The particulars of the ordinance adopted here, however, require consideration. Some of them are invalid. The ordinance requires the board of adjustment and the planning board to hear applications for rezoning. N.J.S.A. 40:55D-70 and 76 set forth the powers of boards of adjustment. These powers do not include any authority to hear matters relating to the amendment of the zoning ordinance. Planning boards, however, are authorized by N.J.S.A. 40:55D-25(b)(3) to "perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the governing body or other agencies or officers."
[172 NJSuper Page 487]
This broad power clearly authorizes such boards to consider the rezoning applications authorized by the township ordinance. A rezoning application is to consist in part of "a properly completed rezoning information form." Nothing in the ordinance defines the information which is to be supplied. Reasonable standards, though couched in general terms, are necessary to avoid discrimination. Ward v. Scott , 11 N.J. 117, 123-124 (1952). The board of adjustment and planning board, in making their findings, are to consider "whether any action short of rezoning will properly protect the interest of the community," "the existing Master Plan," "conditions existing within the community", "the best interest of the community" and "community benefits." These considerations certainly may be addressed when deciding whether new legislation is advisable. However, zoning ordinances and their amendments must be prepared in accordance with the requirements of the Municipal Land Use Law, and the ordinance should so provide. The board of adjustment and planning board are to reach "conclusions of law" concerning the application. The only "conclusion of law" required appears to be a determination that there is "a substantial likelihood that the zoning regulations currently in existence will unconstitutionally deprive the applicant of his rights to property." It is not the function of the board of adjustment or the planning board to decide constitutional questions of this kind. Questions of law are the peculiar province of the courts. Honigfeld v. Byrnes , 14 N.J. 600, 603-604 (1954); Jantausch v. Verona , 41 N.J. Super. 89, 96 (Law Div.1956), aff'd 24 N.J. 326 (1957). Finally, if the township council decides to adopt an amendment, it is required to be one which "meets the general health, safety and welfare concerns of the community." These are appropriate standards for such an amendment, but they are not the only ones to be considered. The council must be permitted to consider all of the standards set forth in the Municipal Land Use Law.
The ordinance contains a "separability" provision. It provides that if any part of the ordinance is adjudged to be
[172 NJSuper Page 488]
invalid, the remainder shall remain effective. This clause will not save the rezoning section. Its infirmities are too significant; the valid portions are not independent of the invalid portions. It cannot be said that it would have been adopted by council if all of its invalid portions were deleted.*fn1 Inganamort v. Fort Lee , 72 N.J. 412, 422 (1977). As a consequence, there are no administrative procedures which plaintiff is required to exhaust.
The exhaustion argument suffers from an additional infirmity. The rezoning procedure has nothing to do with variances. When a variance application involves matters within the jurisdiction of a board of adjustment, the applicant cannot be compelled to seek an amendment to the zoning ordinance. Consequently, defendant board either had jurisdiction to grant the variance or it did not. If jurisdiction was lacking because plaintiff sought relief obtainable only through an amendment to the zoning ordinance, the application would have to be dismissed. The dismissal would be sustained here on that ground; there would be no question of exhaustion of administrative remedies since such remedies would have no relation to the variance procedure.
C. The Merits of Plaintiff's Contentions
Plaintiff faces an insurmountable difficulty in connection with his effort to reverse the board of adjustment. The record below concerns an application made under the old zoning ordinance, no longer in existence. The new zoning ordinance is entitled to a presumption of validity. Bern v. Fair Lawn , 65 N.J. Super. 435, 450 (App.Div.1961). Its provisions, except as they relate to the seven acres once zoned commercial, have not been challenged. There is no record of any administrative proceeding under the new ordinance; there was no such proceeding. Under the circumstances, plaintiff's suit, except for
[172 NJSuper Page 489]
the constitutional issue, must be dismissed. There is no basis for a remand to the board of adjustment for further hearings; a new application is necessary, on proper notice, since entirely new considerations are now involved.
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March 20, 2013
BARBARA AND JOHN ZAPRALA, PLAINTIFFS,v.USI SERVICES GROUP, INC., DEFENDANT.
Presently before the Court are Plaintiffs' Motion for a New Trial (Doc. 58) and Defendant's Response in Opposition thereto (Doc. 59). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Plaintiffs' motion will be denied.
Plaintiffs Barbara and John Zaprala ("Plaintiffs" or the "Zapralas"), husband and wife, brought this suit against Defendant USI Services, Inc. ("Defendant" or "USI") for personal injuries sustained by Barbara Zaprala. Barbara Zaprala was employed at the Macy's store in King of Prussia Mall in King of Prussia, Pennsylvania. On March 10, 2007, Barbara Zaprala was leaving her work station at Macy's and going home for the evening. At approximately 6:15 pm, Barbara Zaprala was walking inside the store toward the "Nautica entrance"*fn1 of the store when she slipped and fell. Barbara Zaprala alleged she fell because the tile floor was wet with a "slick spot," although no slick spot was ever identified by Plaintiff. Barbara Zaprala sustained injuries to her left knee and left hand. The injuries she received to her left knee later required surgery for knee replacement. The surgery caused complications, which included an infection and a pulmonary embolism.
USI is an independent contractor that was under contract (the "Janitorial Contract") with Macy's to provide housekeeping services. The Janitorial Contract also provided that one porter be on duty at the time of the alleged incident. Barbara Zaprala asserted a claim against USI for negligence. John Zaprala asserted a claim against USI for loss of consortium. Jurisdiction was based on diversity of citizenship.
Plaintiffs' theory of the case was as follows. Plaintiffs alleged that on March 7, 2007, three days before the accident, an inch and a half of snow fell on the top level of the Macy's store parking garage and on the domed plexiglass roof of a walkway outside of the Nautica entrance. Plaintiffs claimed that between March 7, 2007 and March 10, 2007, temperatures were either below freezing or a little above freezing. Plaintiffs claimed that on March 10, 2007, temperatures reached 62 degrees and the snow began to melt. This allegedly caused Macy's customers to track melting snow from outside into Macy's, which ultimately resulted in Barbara Zaprala's slip and fall. Plaintiffs argued that because Barbara Zaprala was a business invitee on the Macy's premises, USI had a duty to inspect and warn her of dangerous conditions. Conversely, USI argued that its contract with Macy's was to provide specific janitorial services at the store. USI maintained that its duties did not include patrolling Macy's to detect slippery conditions, and that Macy's personnel had not requested that USI provide any services in the area of Barbara Zaprala's fall. Thus, USI claimed it owed no duty to Barbara Zaprala because it had no actual or constructive notice of the alleged slippery condition, and in fact no slippery condition existed.
A six day jury trial was held from February 3, 2011 to February 9, 2011. On February 9, 2011, the jury returned a verdict in favor of USI, finding that it had not been negligent. Plaintiffs timely filed the instant motion for new trial.
Federal Rule of Civil Procedure 59(a) governs a motion for a new trial after a jury verdict. A court may grant a new trial after a jury trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a). A court may grant a new trial on the grounds of: (1) improper admission or exclusion of evidence; (2) improper instructions to the jury; (3) newly discovered evidence exists that would likely have altered the outcome of the trial; (4) improper conduct by an attorney or the court unfairly influenced the verdict; (5) the jury's verdict is against the clear weight of the evidence; or (6) the verdict is so grossly excessive or inadequate as to shock the conscience. See Goodman v. Pennsylvania Tpk. Comm'n, 293 F.3d 655, 676 (3d Cir. 2002) (citingBecker v. ARCO Chem. Co., 207 F.3d 176, 180 (3d Cir.2000)); Am. Bd. of Internal Med. v. Von Muller, 10-CV-2680, 2012 WL 2740852 (E.D. Pa. July 9, 2012); Suarez v. Mattingly, 212 F. Supp. 2d 350, 352 (D.N.J. 2002); Davis v. Gen. Acc. Ins. Co. of Am., 153 F. Supp. 2d 598, 599-600 (E.D. Pa. 2001); Griffiths v. Cigna Corp., 857 F.Supp. 399, 410--11 (E.D.Pa.1994), aff'd,60 F.3d 814 (3d Cir.1995) (unpublished table decision). Determining whether to grant a new trial is within the sound discretion of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980); Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1017 (3d Cir.1995).
Plaintiffs raise eight assignments of trial court error which, they claim, entitle them to post-trial relief. Plaintiffs' arguments fall into three categories of the aforementioned grounds for granting a motion for a new trial: (1) improper admission or exclusion of evidence; (2) improper instructions to the jury; and (3) the jury's verdict was against the clear weight of evidence. The Court will address each of Plaintiffs' claims categorically.
A. Improper Admission or Exclusion of Evidence
1. The Court Properly Excluded Photographs of Snowfalls on December 26, 2010 and January 18, 2011 Plaintiffs first argue that the Court should have permitted the use of photographs of the snowfalls of December 26, 2010 and January 18, 2011. Plaintiffs contend that they attempted to introduce these photographs for the purpose of demonstrating the mechanics of how an accumulation of water inside the Nautica entrance of the Macy's store occurred and in order to assist the jury in understanding Plaintiff's theory of the accident. In support of their argument, Plaintiffs rely primarily on Russo v. Mazda Motor Corp., CIV. A. 89-7995, 1992 WL 309630 (E.D. Pa. Oct. 19, 1992), which held that photographs can be admissible to demonstrate mechanical principles as testified to by a party's expert, in order to represent the theory proposed by that expert. The Russo court reasoned as follows:
The general rule is that items offered for purposes of illustration and clarification, such as photographs, are admissible if they are "sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact. Whether the admission of a particular exhibit will in fact be helpful, or will instead tend to confuse or mislead the trier, is a matter commonly viewed to be within the sound discretion of the trial court." 2 John W. Strong, et al., McCormick on Evidence § 212, at 9--10 (4th ed.1992) [hereinafter McCormick on Evidence]. When confronted with photographs, films, and videotapes of experiments or demonstrations that purport to replicate actual events, courts require the party seeking to admit the evidence to prove that the experiment or demonstration was conducted under substantially similar circumstances as the actual event. Id. § 214, at 19--20; Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981).
On the other hand, when a party seeks to introduce photographs, films, and videotapes of experiments or demonstrations, not as a re-creation or representation of how an accident actually happened, but instead to illustrate general principles of physics, for example, courts do not impose the substantial similarity requirement. 2 McCormick on Evidence, supra, § 214, at 20. In these situations dissimilarities between experimental and actual conditions affect the weight of the evidence, not its admissibility. Szeliga v. General Motors Corp., 726 F.2d 566, 567 (1st Cir.1984).
Id. at *1-2. Based on this discussion, the Russo court found that the photographs at issue in that case fell into the latter category. Accordingly, the court found that the substantial similarity requirement did not apply and the photographs could be admitted. Plaintiffs, likening their case to Russo, claim that their architectural expert, Len McCuen, would have used the photographs to assist his testimony regarding what he observed about the snowfalls and how the snow reacted to the architectural structures outside the Nautica entrance of Macy's.
The Court rejects this argument. The purpose of the substantial similarity requirement, as discussed in the Russo opinion, "is to prevent admission of evidence that tends to mislead and perhaps confuse the jury and cause it 'to return a verdict which is based upon conclusions of fact that are contrary to what actually happened.'" Id. at *2 (quoting Jackson v. Fletcher, 647 F.2d. at 1028.) The photographs here were taken three to four years after the incident in question, and do not depict weather conditions that were present on the day of the incident. As such, Plaintiffs cannot satisfy the substantial similarity requirement and therefore attempt to argue that the photographs were intended to be "illustrative" of the "mechanical principles" of snow accumulation. However, this "mechanics" argument ignores the fact that Plaintiffs were permitted to offer numerous other non-snow covered photographs of the pedestrian bridge and its arch-glass cover. In addition, Plaintiffs' expert, Mr. McCuen, testified to (1) the walkway's architectural features, (2) the occurrence of snowfall several days earlier, and (3) how the snow would have accumulated and eventually melted off the glass canopy. The Court finds that Plaintiffs' expert, with the assistance of other photographs, was able to testify to the mechanical principles involved and thereby present Plaintiffs' theory of the case.
Conversely, the probative value of the photographs taken on December 26, 2010 and January 18, 2011 was vastly outweighed by the danger of unfair prejudice and confusion of the jury, as well as being a waste of time. Fed. R. Evid. 403. The jury did not need the assistance of these particular photographs in envisioning what snow on a roof would have looked like. The photographs were therefore prejudicial and misleading because they created the impression that they depicted the condition of the pedestrian bridge on the day of the incident (even though there was no evidence of snow cover on this date) and were a waste of time because they were being offered to show what other photographs and testimony had already established - i.e., snow could fall on the sloped glass roof and subsequently fall or melt off. The Court discerns no error in the exclusion these photographs.
2. The Court Properly Admitted the Testimony of Barry Golub Regarding the Course of Dealings between USI and Macy's
The Zapralas next assert that the Court should not have admitted the testimony of Barry Golub, USI's chief financial officer, concerning the course of dealings between USI and Macy's. Plaintiffs aver that the contract between Macy's and USI was unambiguous, and therefore the admission of Golub's testimony constituted extrinsic evidence that was improperly admitted. The Court previously denied Plaintiffs' motion in limine to bar Mr. Golub's testimony (Doc. 40), and will now address this issue once again.
Under Pennsylvania law, it is "firmly settled" that "the intent of the parties to a written contract is contained in the writing itself." Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624
A.2d 638, 642 (1993) (citing Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982)). "'Where the intention of the parties is clear, there is no need to resort to extrinsic aids or evidence'"; instead, the meaning of a clear and unequivocal written contract "'must be determined by its contents alone.'" Steuart, 444 A.2d at 661 (quoting East Crossroads Ctr., Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865, 866 (1965)). "[W]here language is clear and unambiguous, the focus of interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended." Id. (emphasis in original). "Clear contractual terms that are capable of one reasonable interpretation must be given effect without reference to matters outside the contract." Krizovensky, 624 A.2d at 642. However, "[w]here the contract terms are ambiguous and susceptible of more than one reasonable interpretation, . the court is free to receive extrinsic evidence, i.e., parol evidence, to resolve the ambiguity." Id. A contract will be found to be ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction.
Id. (citingZ & L Lumber Co. of Atlasburg v. Nordquist, 348 Pa.Super. 580, 585-86, 502 A.2d 697, 700 (1985)); see also Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Investments, 951 F.2d 1399 (3d Cir. 1991).
Accordingly, the question before the Court, in ruling on Plaintiffs'
motion in limine, was whether the language of the contract was clear
and unambiguous on its face. The Court found that it was not.
Plaintiffs' motion cited only the most general provisions of the
Janitorial Contract. (See Doc. 40 at 8-9) (citing "Janitorial
Contract" at ¶¶ 1, 3, 5, 13, 21, Attachment A, & Attachment C.) The
Court did not believe that any of these provisions clearly
unambiguously addressed the question of whether USI was required to
patrol entryways for spills. Further, as USI now argues,*fn2
the only clearly delineated cleaning duties addressed in the
Janitorial Contract are those set out in Attachment A
("Specifications").*fn3 The "Specifications" indicate
that during store hours USI's staff was required to "mop all stains
and spills, especially coffee and drink spills" in areas of the store
such as "retail hard surfaces," "alterations," and the "beauty salon."
(Id.) But with respect to "entrances," there is no similar requirement
that USI "mop all stains and spills." (Id.) Thus, neither the
Specifications nor any other provision in the contract indicates that
USI was required to inspect the entryways or patrol for spills.
Rather, the only patrolling duties in the Specifications were for USI
to "police restrooms hourly to clean normal spills, remove stains[,]
and replenish supplies." (Id.)
As such, the Court could not find that the language of the contract clear and unambiguous and therefore grant Plaintiffs' motion in limine. Mr. Golub's testimony was offered for the very purpose of elucidating this ambiguity in the language of the contract. USI's position was that it's only duty was to respond to emergency calls for cleanup made by Macy's employees. Mr. Golub's testimony was offered as extrinsic evidence of this "course of dealing" or "trade custom and usage." Specifically, Mr. Golub testified that in every Macy's store from New England to Virginia where USI provides cleaning services, the porter receives "emergency calls" through a cellular phone or PA system, and is not expected to patrol to discover spills. (Trial Tr. 84:8 -- 88:2, February 8, 2011.) Mr. Golub's testimony was admissible to clear up the ambiguity in the contract created by its silence as to these matters. The Court's admission of this extrinsic evidence was proper under Pennsylvania law, and no error was committed in this regard.
3. The Court Properly Admitted the Testimony of Defendant's Janitorial Services' Expert Eugene Lollo
Plaintiffs next argue Eugene Lollo was not qualified to testify as an expert in this matter because his testimony was not in compliance with Fed. R. Evid. 702. Specifically, the Zapralas claim Mr. Lollo failed to articulate any methodology that may be deemed reliable and his testimony failed to conform to the "fit" prong of Fed. R. Evid. 702. The Court previously denied Plaintiffs' motion in limine to preclude Mr. Lollo's testimony (Doc. 30), and will once again address Plaintiffs' assertions that Mr. Lollo should not have been permitted to provide expert testimony.
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides are follows:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702 (2011).*fn4 The Third Circuit has explained that Rule 702 has "three major requirements": the proffered witness must (1) "be an expert, i.e. must be qualified"; (2) "testify about matters requiring scientific, technical[,] or specialized knowledge"; and (3) present testimony that "assist[s] the trier of fact." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008). Thus, in order to be admitted, an expert's testimony must demonstrate "qualification, reliability, and fit." Schneider ex. Rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.2003.)
Rule 702 has "a liberal policy of admissibility." Pineda, 520 F.3d at 243 (quoting Kannankeril v. Terminix Inter., Inc., 128 F.3d 802, 806 (3d Cir.1997)). In the seminal case Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court explained that, under the Federal Rules of Evidence, the trial judge acts as a "gatekeeper" to ensure that "any and all expert testimony or evidence is not only relevant, but also reliable." 509 U.S. at 589; Pineda, 520 F.3d at 244; Czarnecki v. Home Depot USA, Inc., CIV.A.07-4384, 2009 WL 1706582 (E.D. Pa. June 15, 2009). "[An] expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Pineda, 520 F.3d at 244 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994) [hereinafter Paoli II]). Accordingly, the focus of the Court's inquiry is on the methodology used by the expert, not the conclusions reached. See id. Exclusion of expert testimony is the exception rather than the rule because "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Fed.R.Evid. 702 (advisory committee notes) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786).
a. Qualification
"Qualification requires the witness possess specialized expertise," Pineda, 520 F.3d at 244 (citing Schneider, 320 F.3d at 404), which encompasses a "broad range of knowledge, skills, and training," Pineda, 520 F.3d at 244 (citing Paoli II, 35 F.3d at 741).
Here, USI proffered Mr. Lollo as an expert witness in commercial building housekeeping and porter services.*fn5 At the time of trial, Mr. Lollo had been involved in the commercial housekeeping services business for 28 years and had owned his own janitorial company, Dakota Building Services, Inc., for eight years. Mr. Lollo's own clients have included large department stores such as J.C. Penney and he has regularly provided porter service. Mr. Lollo has also served as a consultant to review cleaning contracts and write specifications for companies. Finally, Mr. Lollo has received training regarding janitorial housekeeping services through the International Contractors Association.
The Third Circuit has made clear that a witness may be qualified based solely on practical experience. Paoli II, 35 F.3d at 741 ("Rule 702's liberal policy of admissibility extends to the substantive as well as the formal qualification of experts.") Formal qualifications, such as a degree in a particular field, are not required. Accordingly, the Court found Mr. Lollo to be qualified to provide the "industrial standard" expected of housekeeping and porter contractors. The Court finds did not err in determining Mr. Lollo to be a qualified expert under the liberal standard provided by Rule 702.
b. Reliability
In addition, "an expert's testimony is admissible so long as the process or technique used in formulating the opinion is reliable," Pineda, 520 F.3d at 247 (citing Paoli II, 35 F.3d at 742), and the expert's principles and methods are reliably applied to the facts of the case. Paoli II, 35 F.3d at 745; Fed. R. Evid. 702 advisory committee notes. The Supreme Court in Daubert and the Third Circuit in United States v. Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985) have articulated several factors that a district court should take into consideration when evaluating the whether a particular scientific methodology is reliable.*fn6 In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Supreme Court extended these factors to apply to "the testimony of engineers and other experts who are not scientists." Id. at 141, 119 S.Ct. at 1171. Thus, when considering non-scientific expert testimony, a district court may consider one or more of the factors set forth in Daubertwhen doing so will help determine the reliability of the expert. Id. The Kumho Court also recognized, however, that because "there are many different kinds of experts, and many different kinds of expertise," id. at 150, 119 S.Ct. 1167, "Daubert' s list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Id. at 141, 119 S.Ct. 1167; see also United States v. Davis, 397 F.3d 173, 178 (3d Cir. 2005). Thus, while the reliability factors announced in Daubert may or may not be instructive in cases involving non-scientific expert testimony, the ultimate purpose of the reliability requirement simply "to make certain an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the field." Kumho,526 U.S. 137, 152, 119 S.Ct. 1167 (emphasis added).
Here, Plaintiffs offer two arguments as to why Mr. Lollo's testimony
was not based on
reliable methodology. Plaintiffs claim Mr. Lollo's methodology, as
indicated in his expert report, was based on a "combination of his own
misguided and subjective interpretation of the Janitorial Contract
blended with his experiences with other clients, which [were]
irrelevant for purposes of this litigation. (Doc. 58-1 at 6.)
Plaintiffs further argue that Mr. Lollo could not offer his "personal
interpretation of an instrument of law such as the Janitorial Contract
as he possesses no legal expertise.[;] has not taken any courses in
law[;] has never taken any education courses in engineering, accident
reconstruction, [or] walkway safety[;] has never been qualified as an
expert in any court[;] and has never been qualified as an expert to
testify in areas dealing with cleaning.." (Id.) The Court finds that
Plaintiffs' contentions have no support in law or fact.
Plaintiffs have not, and likely could not, cite any case law which states that only individuals who have previously testified in other cases can be called upon as experts. Further, the subject on which Mr. Lollo was called to testify does not require that he have a legal background. Mr. Lollo has extensive experience as a commercial cleaning contractor, and it was entirely appropriate for him to apply his personal knowledge and experience in this area to the facts of this case. See e.g., Davis, 397 F.3d at 178; Fisher v. Walsh Parts & Serv. Co., Inc., 277 F. Supp. 2d 496, 505 (E.D. Pa. 2003). Specifically, Mr. Lollo's testimony, like Mr. Golub's testimony, was relevant to identifying the trade customs and practices in the commercial janitorial industry and assisting the jury in understanding the expectations of Macy's and USI under their contract for janitorial and porter services. Further, Mr. Lollo could also testify as to what any ambiguous terms contained in the Janitorial Contract generally mean in the industry.
Whether or not Mr. Lollo's understanding of the contract was "misguided and subjective" was (1) an issue for Plaintiffs to bring out on cross-examination and (2) a question for the jury to determine in assessing Mr. Lollo's credibility and how much weight to give his testimony. Thus, none of Plaintiffs' assertions call into question Mr. Lollo's reliability. The Court therefore did not err in finding Mr. Lollo's methodology satisfied the reliability requirement.
c. Fit
Finally, in assessing the third requirement for the admissibility of expert testimony, the testimony's "fit," the Court must ascertain whether the testimony is "relevant for the purposes of the case" and whether it "assist[s] the trier of fact." Schneider, 320 F.3d at 404. This "helpfulness standard" requires a "valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. (quoting Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786).
As previously discussed, Mr. Lollo was called to testify as to the industrial standard of care expected of housekeeping and porter contractors like USI. Given that this was a negligence action, the purposes of Mr. Lollo's testimony was entirely relevant to this case. As such, the Court found the "fit" prong had also been satisfied. The Court does not now find that it erred in this determination.
Accordingly, because all three requirements for the admission of expert testimony were met, the Court finds that it appropriately admitted the testimony of USI's janitorial services expert Eugene Lollo.
4. The Court Properly Admitted the Expert Testimony of Defendant's Meteorologist, Steve Wistar, Regarding the Lack of Snow Cover on the Day of the Alleged Incident
The Zaparalas next argue that the Court should not have permitted testimony from Stephen Wistar, USI's meteorologist, regarding his contention that no precipitation fell during the period in question. Additionally, Plaintiffs contend the Court should not have permitted Mr.
Wistar's testimony that snow in the parking garage, walkway, or elsewhere around the Macy's store had melted naturally prior to March 10, 2007. Plaintiffs filed a motion in limine on this issue (Docs. 31 & 41), which was denied by the Court.
Here, Plaintiffs do not challenge Mr. Wistar's qualifications or the reliability of his methodology. Rather, Plaintiffs only challenge the "fit" prong of the admissibility of expert testimony. As previously stated, the "fit" requirement demands that the Court ascertain whether the testimony is "relevant for the purposes of the case" and whether it "assist[s] the trier of fact." Schneider, 320 F.3d at 404. Plaintiffs challenge that the fit requirement was not met because Mr. Wistar testified that he was advised of certain snow removal activities by defense counsel, but was not personally aware of when the snow was removed or that it had in fact melted. Accordingly, Plaintiffs argue, Mr. Wistar merely parroted information given to him by the defense. In addition, Plaintiffs claim Mr. Wistar was unaware of how much, if any, of the snow would have remained on various structures outside of the Macy's entrance, and had no information as to the rate of snow melting on different surfaces.
The Court finds these arguments unpersuasive. Mr. Wistar offered expert testimony that, based on climatological data, there was no snow or ice on the ground at King of Prussia Mall on the date of the incident. This testimony was clearly "relevant for the purposes of the case," because the Plaintiffs' entire theory of this case was that Barbara Zaprala slipped on snow or iced tracked into the Macy's store by customers. Further, Mr. Wistar, like any other expert, was not required to have personal knowledge of certain facts or data that were used in formulating his opinion. "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed." Fed. R. Evid. 703 (2011) (emphasis added). As such, it was entirely proper for him to rely on information received by or made known to him at or before trial. In this case, this meant that Mr. Wistar could be made aware that there had been testimony, from Jessica Nelson (the Mall's operations officer), that on the afternoon of March 7, 2007 the parking lot had been salted by maintenance crews. (Trial Tr. 15:22 -- 17:15, February 8, 2011.) Mr. Wistar properly used this information in formulating his opinion that the salt would have increased the rate at which the snow melted, and consequently there would have been no snow present by March 10, 2007.
The true source of Plaintiffs' ire appears to be the fact that Mr. Wistar was not an eyewitness to the ground conditions outside of the Macy's entrance on the day of the incident and admitted that he had not visited the site of the incident. But this is of little consequence, given that Plaintiffs did not produce any climatological data or any eyewitnesses to contradict Mr. Wistar's opinion that there was no snow in the parking lot or on the pedestrian walkway on the date of the incident. Any remaining deficiencies Plaintiffs perceived in Mr. Wistar's testimony were best addressed during cross-examination. Fed.R.Evid. 702 (advisory committee notes) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786). Based on the foregoing, the Court finds it did not err in admitting Mr. Wistar's testimony.
5. The Court Did Not Limit the Testimony of Plaintiffs' Expert Architect, Len McCuen, to the Four Corners of His Expert Report or In Any Other Way Improperly Limit His Testimony
Plaintiffs next argue that the Court improperly limited the testimony of its expert architect, Mr. McCuen, to the information contained his expert report, but did not similarly limit USI's expert meteorologist, Mr. Wistar. This argument appears to be a variation of the argument Plaintiffs advanced in section III.A.4., supra. Plaintiffs aserted in section III.A.4 that the Court erred at trial in permitting Mr. Wistar to be made aware that there had been testimony from Ms. Nelson that the parking lot had been salted on March 7, 2007. Mr. Wistar learned this information for the first time at trial. Plaintiffs now characterize the fact that Mr. Wistar was permitted to be made aware of this information, and thereby testify as to effect salt would have had on the rate of snow melting, as "allowing Mr. Wistar to testify beyond the scope of his expert report." (Doc. 58. ¶ 22.) Plaintiffs assert that either the Court "erred in allowing Mr. Wistar's testimony beyond the scope of his report, or, in the event such was permissible, Mr. McCuen should not have been precluded from testifying to like matters within his expertise." (Id.) Plaintiffs conclude "[t]here was no valid reason for the difference in treatment of the two experts' testimony." (Id. at 21.)
The Court disagrees with both of Plaintiffs' contentions: Mr. Wistar did not testify beyond the scope of his expert report, and Mr. McCuen's testimony was not in any way improperly limited. First, with respect to Mr. Wistar, the Court notes that Ms. Wistar's expert report concluded that "[m]ost, if not all of [the snow that fell on March 7, 2007] melted naturally before the period in question." (Doc. 38, Ex. A.) Mr. Wistar's report was dated June 22, 2010. Subsequently, at his deposition on January 31, 2011, Mr. Wistar again elaborated that any snow or ice that would have accumulated would have melted naturally by March 10, 2007. (Doc. 38, Ex. B at 88-92) Plaintiffs had the opportunity to question Mr. Wistar at his deposition. Between the content of the expert report and the deposition, it could not have come as a surprise to the Plaintiffs that the entire gist of Mr. Wistar's expert opinion was that there would have been no snow remaining by the date of the incident.
Mr. Wistar admitted at his deposition, in response to questioning by both Plaintiffs' counsel and defense counsel, that he was not aware of whether the parking lot had been salted. The Court permitted defense counsel to inform Mr. Wistar of this fact at trial. The question exact posed to Mr. Wistar by the defense was this:
Q: So there has been testimony in this case that on the afternoon of March 7, 2007 the parking lot that you can see in this photograph here was salted by maintenance crews of the mall. All I want to ask you is what effect does salt on a blacktop surface have on a snowfall.
(Trial Tr. 17:10 -- 17:15, February 8, 2011.) Mr. Wistar's response was "[t]he salt will increase melting," and he went on to elaborate on the physics of why this is the case. As previously discussed, Fed. R. Evid. 703 permits Mr. Wistar to be made aware that the parking lot was salted. Moreover, Mr. Wistar's testimony that the salt would have increased the rate at which the snow melted is entirely consistent with his opinion, as previously expressed in his report and at his deposition, that there would have been no snow remaining on the date of the incident.
Second, with respect to Mr. McCuen, Plaintiffs offer no explanation as to how his testimony was in any way limited. Rather, Plaintiffs only vaguely aver that Mr. McCuen should have been permitted to testify to "like matters" that were "within his expertise" but not expressly included in his expert report (Doc. 58. ¶ 22.) The Court finds this argument to be unclear and without merit. If anything, the Court did permit Mr. McCuen to testify beyond the scope of his expert report. Specifically, in his expert report Mr. McCuen concluded:
The location where Ms. Zaprala fell was in a dangerous condition at the time of her accident due to wetness/slush and/or dried salt on the hard, shiny floor surface. The contamination was from precipitation that was tracked into the store from outdoors. This was a pedestrian safety hazard and caused Ms. Zaprala to slip and fall. (Doc. 25, Ex. C at 15.) Mr. McCuen attributed the slick spot to precipitation which had been tracked into the store due to "residual compacted or piled snow and ice." (Id. at 11.) Mr. McCuen never states anywhere in his report another source of moisture allegedly tracked into the store was snow and ice accumulating on the glass canopy over the pedestrian bridge and subsequently falling off. To the contrary, Mr. McCuen praised the glass canopy as an effective measure for preventing snow and ice from being tracked in. He stated, "By providing a canopy outside the doorway and a foyer consisting of exterior and interior sets of doors, the building inherently addressed this issue to the extent reasonably practical." (Id.) At trial, however, Mr. McCuen stated the following:
Usually when you do have a canopy that's projecting out from an entrance and the idea is to protect from the rain and so forth, you would always expect that that structure, be it curved or an A-frame whatever[,] would overlap the walkway such that any rain or snow or anything would shed off, completely off[,] and drain away from the walkway. This one is a little unique. It does the exact opposite. What it does is it drains here when anything roles [sic] off of it, and you have about an eight-foot gap on either side of the covered area that the walkway extends out. And this whole bridge is slightly pitched down towards the doors and it's also panned slightly so that it drains in. So whenever you have anything that's rolling off of that roof, it's coming down and instead of doing what you would normally hope it would do, which is go away from the walkway, this is actually going to head right into the walkway and down towards the door. (Trial Tr. 4:18 -- 5:14, February 7, 2011) (emphasis added) Mr. McCuen further testified, "Overall, architecturally it's pretty good. It has certain aspects to it that I like, in strictly terms of walkway safety, but it does have this one serious problem and it's particularly important when dealing with snow." (Trial Tr. 5:24 -- 6:4, February 7, 2011.) As is evident, the Court permitted Mr. McCuen to speculate that there could have been water or snow accumulating outside the Macy's door even though there was no evidence that this was actually the case. At best, this testimony was beyond the scope of Mr. McCuen's expert report. At worst, it was, as USI argues, in direct contradiction to Mr. McCuen's expert report.
Accordingly, the Court finds that it did not err by in any way limiting Mr. McCuen's testimony.
B. Improper Instructions to the Jury
1. The Court Properly Instructed the Jury Regarding the Duty of Care Owed by Defendant
Plaintiffs next argue that the Court should have modified its charge to the jury to address the specific duty of care owed by the Defendant. Specifically, Plaintiffs maintain that the charge to the jury did not adequately advise the jury that the specific duty of care that USI had to Barbara Zaprala was the "same" duty of care that Macy's had to Barbara Zaprala. In support of this argument, Plaintiffs rely solely on Torres v. Control Bldg. Services, CIV.A. 09-CV-0178, 2010 WL 571789 (E.D. Pa. Feb. 16, 2010), another case involving a slip and fall in which the plaintiffs sued Lincoln Plaza Associates (the owner and operator of the premises) and Control Building Services (the company in charge of cleaning the mall), among others. Plaintiffs cite the following language from Torres:
The duty to Plaintiffs in this case arises out of ownership of the land. It is Defendant Lincoln Plaza Associates that owns the land, and it, therefore, had a duty to Plaintiffs. In addition, the Restatement (Second) of Torts § 383 makes independent contractors liable to the same extent as a landowner, and Defendant Control Building Services, therefore, also owed a duty to Plaintiffs.
Id. at *5 (emphasis added). The Court is not persuaded by Plaintiffs' argument, and finds that it did not err in not using the precise language that Plaintiffs now argue should have been included in the jury instructions. In total, the Court's charge to the jury included six separate instructions on the issue of negligence. The Court finds that those instructions, taken together, adequately advised the jury of the duty of care USI owed to Barbara Zaprala. In particular, the charge included the following two instructions:
One who does an act or carries on an activity upon land on behalf of the owner is not an insurer of safety of those who enter upon its premises. As such, the mere existence of a harmful condition in a public place of business, or the mere happening of an accident due to such a condition is not evidence of negligence. Rather, to impose liability on one who does an act or carries on an activity upon land on behalf on an owner, a Plaintiff must present evidence tending to prove that the person deviated from some duty of reasonable care. See Moultry v. Great A & P Tea Co., 422 A.2d 593, 595-96 (Pa. Super. 1980). NEGLIGENCE -- LIABILITY OF THOSE WHO ACT ON BEHALF OF OWNER One who does an act or carries on an activity upon land on behalf of the owner is required to carry out such activities for which they are on the land with reasonable care for the safety of invitees, but only if they should expect that those invited will not discover or realize the danger, or will fail to protect themselves against it. Restatement (Second) Torts Sections 383, 341A.
(Jury Instructions at 28-29.) Thus, in addition to providing the standard Pennsylvania instruction defining "negligence," the Court also instructed on the general duty of those who act on behalf of a possessor of land, as set forth in Restatement (Second) Torts §§ 383, 341A. The Court finds it was unnecessary to specifically state that USI has the "same duty of care that Macy's had to Plaintiff" given (1) all the other instructions provided on the issue of negligence, and (2) Macy's not being a party to this lawsuit (unlike the multiple defendants involved in Torres). To have done so would have only been confusing to the jury. Moreover, as USI points out, the Restatement (Second) Torts § 383 places the same liability on an independent contractor as the possessor of land, but only to the extent of the act or activity the independent contractor is performing on behalf of the possessor. See Weiser v. Bethlehem Steel Corp., 353 Pa.Super. 10, 508 A.2d 1241, 1246. It would therefore have been inaccurate for the Court to suggest to the jury that USI owed the same duty, in all respects, as did Macy's.
2. The Court Did Not Err in Not Including Plaintiffs' Proposed "Negligence-Notice" Instruction
Plaintiffs next argue the Court should have included a proposed instruction entitled "Negligence-Notice." The proposed "Negligence-Notice" would have stated the following:
Furthermore, in a slip and fall case such as this one, a Plaintiff must prove that the defendant had notice of the condition before liability may be imposed. Notice may be proven in a few ways. Where the condition is one which the owner knows has frequently recurred, the owner may be considered to have actual notice of that condition. Alternatively, the owner may be deemed to have constructive notice of the condition where the evidence indicates that the condition is transitory, created by persons other than those for whom the owner is accountable, and existed for such a length of time in the exercise of reasonable care, the owner should have known about it. Moultry v. Great A & P Tea Co., 422 A.2d 593, 596 (Pa. Super. 1980).
Plaintiffs offer no explanation as to why the Court's "failure" to include this instruction should result in a new trial. Plaintiffs merely state, in the most conclusory terms, that they objected to the omission of this instruction and that the failure to include it was "improper, unfairly prejudicial[,] and confusing to the jury." (Doc. 58 ¶6). This is insufficient.
It is unclear to the Court why Plaintiffs are insistent that this instruction needed to be included. The language of the instruction sets out, in part, what Plaintiffs needed to prove in order to make out a prima facie case of negligence in a slip and fall case. USI has argued, both in its response in opposition and at trial, that the inclusion of this instruction was improper on both factual and legal grounds. (See Trial Tr. 15:7 -- 17:20, February 8, 2011, Charging Conference.) First, USI contends that inclusion of the instruction was improper on the facts of this particular case because the instruction is only proper when there is sufficient circumstantial evidence for a jury to infer that the harm causing condition had existed for a sufficient period of time to establish either actual or constructive notice. Second, USI argues the proposed notice instruction would have been improper because USI's only duty was to perform any act or activities it was doing for Macy's, the possessor of the land, in a reasonable manner.
The Court agreed with both of these arguments. As has been discussed, neither Barbara Zaprala nor her expert architect was able to provide sufficient circumstantial evidence for a jury to infer that the alleged slick spot existed. Thus, there was no evidence that a harmful condition actually existed - only speculation. As such, it would have been improper for the Court to instruct the jury as to whether USI was on notice, either actual or constructive, of a harmful condition where there was no evidence one existed. In addition, as has been discussed, USI was neither the owner nor the possessor of the premises in question. The language of the instruction, which refers to the "owner" of the premises in question, is inappropriate. As illustrated by the negligence instructions that were given, USI's only duty was to perform any act or activities it was doing for Macy's in a reasonable manner. Restatement (Second) Torts §§ 383, 341A; Weiser v. Bethlehem Steel Corp., 353 Pa.Super. 10, 508 A.2d 1241, 1246. It was up to the jury to determine whether that duty included inspecting entryways and/or patrolling for spills.
C. The Jury's Verdict was against the Clear Weight of Evidence
Finally, Plaintiffs argue the jury's verdict was against the clear weight of evidence and resulted from improper considerations that were contrary to the law. Plaintiffs' argument here is based entirely on their aforementioned contention that the contract terms between Macy's and USI were unambiguous. Plaintiffs' again argue that the contract "clearly indicated" USI's duties and responsibilities, and that factual testimony "clearly indicated" that USI breached that duty.
The Court wholly rejects this argument. The Court has already discussed why the contract was not unambiguous. But more importantly, Plaintiffs' argument is misguided because this was a negligence action, not a breach of contract action. Whether or not the Janitorial Contract was clear and unambiguous does not conclusively answer the question of whether USI acted reasonably. Because the contract was ambiguous, extrinsic evidence regarding its meaning was properly admitted. From this extrinsic evidence, the jury was free to accept USI's theory of the case, which was that USI was only expected to respond to emergency calls, and did not receive a call regarding the alleged slick spot. But even if, as Plaintiffs suggest, the contract established that USI had a duty to continually inspect the entryways and patrol for spills, the jury still could have found that USI acted reasonably and return a verdict in USI's favor. Based on the evidence presented at trial, either finding by the jury would have been proper. The trouble with Plaintiffs' case is that they were unsuccessful in establishing that the slick spot existed or, if it existed, what was its source. Plaintiffs are therefore incorrect in suggesting that contract and the factual testimony "clearly indicated" anything.
The Court does not find the jury verdict was not against the clear weight of evidence.
For the foregoing reasons, Plaintiffs' Motion for New Trial is denied. An appropriate order follows.
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11 DIY Christmas Decorations and Gift Ideas
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Latest Comments
"I saw this pattern and thought it would be great to go in my gift tins for my homemade spa sets for Christmas. I started the pattern but kept having trouble with the puff stitch. When I try to pull through the loop the hook gets stuck and pull a strand or two out making it look un-neat. Is there a way to prevent this? Could it be the yarn I am using?"
"I love this pattern for making dishcloths! It is so simple and it's so easy to remember. It makes a great,durable dishcloth. Does anyone tried this pattern with that new yarn that is made for making dishcloths? I think it might be a rayon blend. I'm going to try it next time I need dishcloths."
"This is a great beginner project, it was easy to follow and gave great instruction. I was able to work up several of these for co-workers who thought it was so cute. I am going to make several more for my home for company to use when they come over and have coffee."
"These spiral beaded trees are so pretty! For extra sparkle, I am going to place a battery tea light candle in the center of the spiral. Several of these trees would look great placed within a strand of twinkle or small rice lights on a mantle or table center piece!"
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Recycled Bedspring and Spool Tree
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This Christmas, make some Earth-friendly crafts that bring new meaning spirit of the holiday season. A Recycled Bedspring and Spool Tree from Cyndee Kromminga allows you to combine vintage themes and recycled items into one gorgeous tabletop tree design.
- 24-inch tabletop Christmas tree
- Wire cutters
- Bed spring
- 12 wooden thread spools
- Measuring tape
- Homespun Christmas fabric
- Scissors
- Craft glue
- Craft wire
Remove the legs from a 24-inch tabletop Christmas tree. Cut off the trunk just below the bottom tier of branches using wire cutters.
Insert the bottom of the tree into the top of an old bed spring. The bottom branches will make the bottom end of the trunk thicker. Push down until the tree is snug and doesn't tilt. Unbend, fluff and arrange the remaining upper branches of the tree.
Choose 12 wooden thread spools from your stash of crafting supplies. These will be your ornaments, and they do not need to be the same size. Measure the circumference and the height of each spool's inner spindle. Add 1/4 inch to the circumference measurement. From each measurement, cut a strip of Christmas homespun fabric for each spool. Apply craft glue to each spool's spindle and wrap the homespun around them. Allow the glue to dry.
Cut 12, 5-inch lengths of craft wire using wire cutters. Insert one wire through the center of each spool. Place one spool on top of a tree branch. Bend the wire under the branch, bring the ends together and twist to secure. Randomly attach the remaining spools around the tree.
Rip several 1-inch-wide strips from homespun fabric. Cut the strips into 5 inch lengths. Wrap one 5-inch fabric strip around a tree branch that does not have a spool attached. Tie the ends in a knot on top of the branch. Repeat with more strips on the remaining empty branches. This will fill in the decorations. If you have areas that look like they could use a little something more, tie additional strips around the trunk of the tree.
Rip a 2-inch-wide by 18 inch-long strip of homespun. Wrap the strip around the top of the tree and tie it into a bow. Trim the ends as desired.
To further stabilize your tree, wire the tree to the bed spring using short lengths of craft wire.
- Because these trees are so inexpensive and quick to make, they would be great centerpieces for end-of-the-year banquets and Christmas parties. They are also the perfect size to spruce up a desk for the holidays, as they take up very little space.
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bobbylonardo 50143 99
Apr 26, 2014
As a crafter, I have many odds and ends that I have saved from various things - but where in the world are you supposed to find an old bed spring? It's not something the average person has laying around and it seems doubtful that you could buy one . . .
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Man Shot Outside AT&T Stadium After Cowboys-Patriots Game
Two men who police say had been tailgating for "a while" got into a fight that ended in a shooting outside AT&T Stadium in Arlington, Texas.By Christine Slusser | October 12, 2015
A suspect is in custody after shooting a man in a parking lot at AT&T Stadium in Arlington, Texas, Sunday.
KXAS reports the victim is in critical condition after suffering a gunshot wound to the neck during a fight hours after the Cowboys-Patriots game.
A police spokesperson said the two men "might have been tailgating for a while." Two off-duty police officers were told about the fight around 8:30 p.m. and heard a gunshot when they arrived.


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What is the Heal Your Hunger Podcast?
It's a triweekly podcast that will focus on emotional eating and food addiction, and the key ingredients for healing. Tune in every Monday, Wednesday and Friday for in-depth interviews with an array of experts, addressing the latest wisdom regarding health, emotional and spiritual healing and general well-being. Host Tricia Nelson will challenge conventional wisdom and change your weight loss paradigm by getting to the heart of why we overeat and how to stop. By sharing her own, personal weight loss struggles, as well as her 25+ years of healing, she will reveal the deeper, emotional influences on our eating behaviors. You'll also hear from other members of the HYH community.
Is Heal Your Hunger for me?
How do I listen?
The Heal Your Hunger podcast will be available on iTunes, and other podcast listening apps. Videos and transcripts of each show will also be available here at HealYourHunger.com
When can I listen?
The HYH podcast will launch December 2016.
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Next Episode of Outsourced is
not planed. TV Show was canceled.
When manager Todd Dempsy returns to work after management training, he learns that the Mid America Novelties call center has been outsourced to Mumbai, India. In order to keep his job, Todd is left no choice but to relocate to India. There he meets his eclectic group of employees, and soon realizes that teaching them to understand America will be the first of many hurdles that he needs to overcome. Todd also discovers other foreign transplants working in his office building, including American expatriate Charlie Davies who runs the All American Hunter call center, and Tonya a beautiful Australian who runs the call center for Koala Air.
Rizwan Manji(Rajiv)
Parvesh Cheena(Gupta)
Ben Rappaport(Todd)
Pippa Black(Tonya)
Rebecca Hazlewood(Asha)
Diedrich Bader(Charlie Davies)
Sacha Dhawan(Manmeet)
Anisha Nagarajan(Madhuri)
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Top Definition
Figure of speech referring to a cheater of some sort. Said cheater needs not be of Persian ancestry of a poker player.
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Tidjane Thiam: On His Way to Canossa?
- Details
- Tuesday, 22 March 2016 05:23
- | Written by Samuel Gerber
Tidjane Thiam in his brief tenure as CEO of Credit Suisse has already initiated some substantial changes at Switzerland's second-biggest bank. The turbulent times currently engulfing the banking industry may yet demand further adaptions of the strategy soon.
The absence of the chief financial officer of Credit Suisse (CS) at last week's investor conference of J.P. Morgen in London prompted some raised eyebrows and sent the rumor mill spinning.
The usually punctual and reliable David Mathers wasn't the only absentee though: no representative of CS was at the conference, unlike the who's who of international banking. Asked for a comment by «AWP» news agency, the bank confirmed its absence without giving a reason.
The bank's share tanked as investors were left pondering what the bank had to hide. Of course, in the current climate and following the whopping loss in 2015, it is reasonable to ask what will happen with the new strategy presented by Tidjane Thiam in October.
Early Revision of Strategy?
Some observers are putting their bets on an early tweaking of the strategy. Dominic Elliot, a columnist at «Reuters» put forward his views in the «New York Times»: he's convinced that Thiam needs to reconsider the changes following a drop of 40 percent of its share price. The goals set for the units were far removed from reality, too far to retain them, Elliot says.
Thiam's ambitions are sky-high: the bank in Asia has to boost pretax profit to 2.1 billion francs by 2018 from 0.9 billion in 2014. The wealth management business has been told to double the profit to 2.1 billion in the same period of time, while the new Swiss unit needs to increase its pretax to 2.3 billion francs.
With the massive loss accumulated in 2015, CS moved a further 2.95 billion francs away from reaching the targets of 2018, making Thiam's wishes appear even more ambitious.
Hidden Profit Warnings
The past days have made apparent that what bankers believed in February has been rendered obsolete just a month later. UBS CEO Sergio Ermotti, the boss of a bank reinvigorated in recent years, painted a bleak picture of the first quarter, giving an outlook that amounted to a not-so-hidden profit warning. And ironically, he did so at the event where CS CFO Mathers was due to hold a speech.
Deutsche Bank CEO John Cryan was similarly pessimistic at the conference, suggesting that his institution might as well post a deficit this year. CS, which like Deutsche is undergoing a substantial remake, kept mum.
Ambitious Targets
Iqbal Khan, CEO of CS' International Wealth Management division, in an interview with finews.ch indicated that the turbulent times on the financial markets had not been taken into account when the new targets were set, which can be read as an indication that the targets may not be reached in time.
The guarded hints of Khan and the circumstantial evidence gathered from what other banks are saying doesn't prove anything. But if Thiam has to change the strategy so soon after the grand presentation of October, it would be equal to walking to Canossa.
The targets set last year were intrinsically linked with the capital increase. The deal was clear: investors inject a further 6 billion francs and Thiam's crew generates sustainable growth in return. But what happens if he fails to deliver?
The financial markets are awaiting Thiam's next comments with much anticipation. An opportunity would be on Thursday, March 24, at the publication of the annual report.
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I want to see people around me succeed. Oftentimes, the best way I can help people do that is to share skills that I demonstrate mastery in, one of which is standardized and academic test taking. Test-taking skills, and familiarity with the format and patterns of testing, are eminently teachable. This makes test prep one of the most worthwhile areas to expend effort, whether for the purpose of improving your application profile or for AP testing.
I graduated from the University of Minnesota with a B.S. in Biomedical Engineering. I have taught and tutored in a variety of contexts, from GRE and SAT test prep classes to tutoring Mathematics, Language Arts, Biology, Chemistry, for students ranging from middle school to university level.
Regarding my personal background and interests, I am currently applying to law school with the aim of practicing international public interest law in the future. In my free time, my hobbies include ultimate frisbee, travel, foreign languages, wing chun, and volunteering.
UniversityMINNESOTA TWIN CITIES - BS, Biomedical Engineering
ACT Composite: 33
SAT Math: 780
SAT Verbal: 770
GRE Verbal: 710
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