Court Precludes Evidence of Prior Slip and Falls At Premises Liability Trial

In the case of Kunsman v. Wawa, Inc., No. 2017-23859 (C.P. Montg. Co. June 2, 2023 Saltz, J.), the court issued a Rule 1925 Opinion requesting that the Superior Court affirm the verdict in favor of the Defendant in a slip and fall case.

According to the Opinion, the Plaintiff allegedly slipped and fell on a yellow-painted surface in the parking area at the Defendant’s store.

One of the issues on appeal was the trial court’s ruling on the Defendant’s Pre-Trial Motion In Limine to prevent the Plaintiffs from offering evidence of prior lawsuits or claims against the Defendant. The subject of that motion was a list of fourteen (14) prior claims, each of which involved in a slip and fall accident on yellow traffic paint, which information was provided to the Plaintiff by the Defendant in discovery.

During depositions, the Defendant’s Senior General Liability Specialist indicated that only one (1) of the fourteen (14) claims was at the same store where the Plaintiff fell.

In the end, the trial court authorized the admission of the evidence of that particular claim, but not the others.

In this Opinion, the court noted that the Plaintiff did not sustain their burden of proving that the claims of the other prior incidents on the list, other than the incident that occurred at the same store, were “sufficiently similar” under the “sufficiently similar circumstances” test.   The trial court requested the Superior Court to affirm its decision in this regard.

Another issue in this case was the Plaintiff’s objections to the jury instructions relative to the failure of the Defendant to produce any video footage of the subject incident.

At trial, the assistant general manager of the store testified that he sent to the Defendant’s corporate headquarters surveillance video camera recordings that he thought had captured the accident.

However, the store’s general manager then testified that there were no cameras in a place that had a view of the site of the incident.

Prior to trial, the court had directed the Defendant to provide the Plaintiff with all videos from the date of the accident taken at any location at the store.

The Defendant did so and none of the videos included the site of the accident.

At trial, the Plaintiff requested that the jury be provided Suggested Standard Jury Instructions §5.60, addressing spoliation of evidence. The trial court denied that request and instead instructed the jury under §5.30, regarding the failure to produce evidence.

As noted above, in the end, the jury found that the Defendant store was not negligent.

As part of its appeal, the Plaintiff stated that the trial court erred by instructing the jury on the failure to produce evidence standard rather than the spoliation of evidence jury instruction.

The trial court noted that the Plaintiff’s argument in this regard should not be upheld as the jury instruction on the failure to produce evidence was substantially the same as the instruction regarding spoliation of evidence. The court stated that the Plaintiff did not demonstrate any prejudice from the use of the instruction actually provided to the court. The court also noted that it was within its discretion in deciding which instruction to use. 

Here, in light of the conflicting evidence about the existence of any applicable video recording, the court noted that the jury was properly allowed to draw an adverse inference if it found that the Defendant had possessed a video but had not produced it.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 4, 2023).

Federal Court Parameters on Scope of Permissible Discovery of Prior Incidents Reviewed

In the case if Birl v. Ski Shawnee, Inc., No. 3:22-CV-1598 (M.D. Pa. May 31, 2023 Carlson, Mag. J.), the court granted in part and denied in part a Motion to Compel discovery in a skiing accident case.

More specifically, the court found that a demand for the production of all documents and communications about all prior collision accidents on the Defendant’s property for over twenty (20) years was excessive.

However, the court also noted that a restriction of discovery to only the particular object that the Plaintiff collided with was also too narrow.

The court stated that judicial discretion on discovery issues is limited by valid claims of relevance and privilege. Relevance issues are to be tempered by principles of proportionality. Proportionality, in turn, is determined based upon temporal and topical aspects of the discovery dispute.

Magistrate Judge Carlson otherwise indicated that prior accidents are relevant if they occur under similar circumstances as presented in the pending case, and where such prior accidents are also relevant to the issue of notice on the part of the Defendant.

The court otherwise indicated that five (5) years is a common temporal limit on discovery.

In the end, the court granted the Plaintiff the right to discovery five (5) year records on all collision incidents.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of Image:  Photo by Mati Mango on www.pexels.com.

Evidence of Prior Accidents and Injuries Precluded as Irrelevant to Claimed Injuries

In his recent decision in the case of Piczon v. Moody, No. 2012 - CV - 3634(C.P. Lacka. Co. April 6, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Motion In Limine filed by a Plaintiff seeking to preclude the defense medical witness from referencing the Plaintiff’s prior complaints and treatment involving her low back, hip, leg, knee, foot, and ankle in an automobile accident case where the Plaintiff was seeking to recover damages for alleged injuries to her neck and head.  

The court granted the Motion and found that, to be admissible, evidence of previous medical complaints voiced by a Plaintiff must be connected to the Complaints at issue in the pending case.   Where such evidence is not connected to the Complaints at issue, the court will exclude the same as irrelevant and prejudicial. 

Here, the court found that the Plaintiff did not seek to recover any damages in the subject litigation for injuries to her low back, hip, knee, leg, foot or ankle.   The court therefore found that the Plaintiff’s prior complaints and treatment relating to those body parts were irrelevant and unduly prejudicial.  As such, Plaintiff’s Motion In Limine to preclude that evidence was granted.  

Anyone wishing to review a copy of this decision may click this LINK.  


For another recent decision from Judge Nealon along the same lines, see the case of Familetti v. Thyssen Krupp Elevator Corp., No. 2013-CV-1486 (C.P. Lacka. Co. April 27, 2017 Nealon, J.) by clicking HERE.

In Familetti v. Thyssen Krupp Elevator, Judge Nealon of the Lackawanna County Court of Common Pleas addressed a Motion In Limine filed by a Plaintiff seeking to preclude any reference to her prior accidents and associated treatment under an argument that such evidence was irrelevant, confusing, misleading, and prejudicial as there was no evidence presented to prove that the prior accidents and injuries caused or contributed to any of the Plaintiff’s current complaints at issue in this trial.

According to the Opinion, the Plaintiff alleged neck and hand injuries as a result of an elevator accident in 2011.  

During discovery, it was disclosed that the Plaintiff had a prior motor vehicle accident in 1991 or 1992 as a result of which she sustained a whiplash injury to her neck that resolved after six (6) weeks of treatment. The Plaintiff was also involved in another prior accident in 2001 or 2002 and sustained injuries to her low back and knee for which she received chiropractic treatment.   The Plaintiff additionally had a prior fall down event in 2009 and was treated for left arm pain with one (1) emergency room visit.  

The court noted that, in the defense IME report, the IME doctor noted that the Plaintiff’s past medical history was generally benign.   It was additionally noted that the defense medical expert did not suggest that the Plaintiff’s current complaints were in any way related to her prior traumatic events.  

The court reviewed the rule of law that, to be admissible, evidence of previous medical complaints must be connected to the complaints at issue and, if they are not, the trial court should exclude the evidence as irrelevant and prejudicial.   Based upon this law, the court granted the Plaintiff’s Motion In Limine.