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Settling Defendants Required to Appear on Jury Verdict Sheet

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In Dunlap v. Ridley Park Swim Club, et al.,1 the PA Superior Court reversed and remanded the decision of the Court of Common Pleas of Delaware County because the trial court did not include the settling defendant on the verdict sheet.  The Superior Court found that by not including Harper Associates on the verdict sheet and preventing the jury from apportioning responsibility between the defendants, the trial court abused its discretion.  The Superior Court found that the appellants proved a prima facie case of negligence against Harper Associates and therefore, that Harper Associates was required to appear on the verdict sheet.  The Superior Court relied on the Supreme Court opinion in Davis v. Miller, 123 A.2d, 424 (Pa. 1956) (holding that a defendant has a right to have a settling defendant appear on the verdict sheet in order to apportion liability).  The Superior Court also relied on their own opinion in Herbert v. Parkview Hosp., 854 a.2d 1285, 1290 (Pa. Super. 2004), appeal denied, 872 A.2d 173 (Pa. 2005) (holding that Davis only requires a settling co-defendant to appear on the verdict sheet upon a showing of a prima facie case of negligence). 

The relevant facts are that the appellee was swimming at Ridley Park’s pool, and a tree fell on her while she was leaving causing serious injury.  The tree was located on property owned by Harper Associates.  The appellee commenced legal action by filing a complaint against multiple defendants, including Ridley Park and Harper Associates.  The appellee entered into binding arbitration with Harper Associates prior to trial, and the arbitrator awarded her $350,000.  A pro rata joint tortfeasor release was executed, and provided that, “recovery against Ridley Park shall be reduced only to the extent of the pro-rata share of such damages as may be attributable to Harper Associates and related defendants. . .”  The trial court found that Ridley Park did not prove a prima facie case of negligence against the appellant because they did not provide expert testimony, and ruled that Harper Associates would not appear on the verdict form.  The jury returned a verdict in favor of the appellee for $750,000. 

On appeal the appellants argued five issues.  Appellants prevailed on the argument that a new trial should be granted due to the trial court’s error of not submitting the question of Harper Associates’ negligence to the jury.  The Superior Court determined that Ridley Park was not required to present expert testimony to prove its prima facie case of negligence.  Expert testimony is required “when the subject matter of the negligence is outside the skill and knowledge of an ordinary layman.”2  The Superior Court found that Harper Associates had a duty to visually examine the tree, and relying on Barker v. Brown3, determined that no expert testimony was required.  Barker v. Brown held, that a possessor of land in or adjacent to a developed area is subject to liability for harm caused to others outside of the land, by a condition on the land, if a reasonable exercise of care would have disclosed the defect and the risk, and would have been reasonably safe by repair or otherwise.

Additionally, the Court found an expert was not required to find a breach of duty.  The issue of whether a tree was visually examined does not require specialized training or knowledge.  Causation does require expert testimony, and the appellee’s expert provided sufficient testimony to create a question of fact for the jury, and was not a matter of law for the trial court to decide.  Lastly, it is undisputed that the fallen tree caused the injuries. 

Ultimately, the Court found that the appellants made a prima facie showing that Harper Associates was negligent, and that the trial court abused its discretion by not including them on the verdict sheet.  The error clearly prejudiced the appellants, because if the jury determined Harper Associates had some responsibly for the appellee’s injuries the appellants’ damage award would have been reduced in accordance with the pro rata joint tortfeasor release. 

[1] Dunlap v. Ridley Park Swim Club, et al., 2014 Pa. Ct. Comm. Pl., WL 10298711, *1 (December 10, 2014), reversed and remanded, No. 3199 (Pa. Super. 2015)(unpublished memorandum). 

[2] Young v. Commw. Dep’t of Transp., 744 A.2d 1276, 1278 (Pa. 2000)(citations omitted). 

[3] Barker v. Brown, 340 A.2d 566, 569 (Pa. Super. 1975).

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