Stapas v. Giant Eagle, Inc.

153 A.3d 353

John STAPAS, Appellee

v.GIANT EAGLE, INC., a Pennsylvania Entity; Giant Eagle, Inc., t/d/b/a Getgo from Giant Eagle, a Pennsylvania Entity; Giant Eagle Inc., t/d/b/a Southside Getgo, a Pennsylvania Entity; Nadeen McShane, an Individual; Getgo Partners South, a Pennsylvania Entity; Getgo Partners South–Maryland, LLC, a Pennsylvania Entity; and Getgo Holdings, LLP, a Pennsylvania Entity, Appellants

No. 1287 WDA 2015

Superior Court of Pennsylvania.

Argued July 19, 2016

FILED DECEMBER 23, 2016

Reargument Denied February 27, 2017

Scott D. Livingston, Pittsburgh, for appellants.

Michael A. Murphy, Pittsburgh, for appellee.

BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:

In this case that arises from a shooting outside a GetGo convenience store, Appellants, Giant Eagle, Inc., a Pennsylvania entity; Giant Eagle, Inc., t/d/b/a GetGo from Giant Eagle, a Pennsylvania entity; Giant Eagle Inc., t/d/b/a Southside GetGo, a Pennsylvania entity; Nadeen McShane, an individual; GetGo Partners South, a Pennsylvania entity; GetGo Partners South–Maryland, LLC, a Pennsylvania entity; and GetGo Holdings, LLP, a Pennsylvania entity (collectively "Giant Eagle"), appeal from the judgment entered on July 24, 2015 in the Court of Common Pleas of Allegheny County on a jury verdict returnedin favor of Appellee, John Stapas ("Stapas"). For the reasons that follow, we vacate the judgment entered in the court below and remand for a new trial limited to damages.

In its opinion filed on November 2, 2015, the trial court provided the following procedural history:

[Stapas] filed negligence claims against [Giant Eagle] seeking damages for injuries Stapas sustained on July 18, 2007 when Stapas was shot multiple times outside of the GetGo convenience store located at 117 S. 18^thStreet in the Southside of Pittsburgh. Stapas was shot by another patron, Brandon McCallister ("McCallister"), around 1:30 a.m. after the two males engaged in a verbal and physical altercation which began inside the GetGo store and carried outside into the parking lot.

Stapas commenced this action by filing a civil complaint on or about November 10, 2009^[1]alleging negligence claims against Giant Eagle and seeking damages for pain and suffering, permanent disability and impairment of earning capacity, diminution of the ability to enjoy life's pleasure, and present and future medical expenses and income loss. There was a five (5) day jury trial which commenced on November 10, 2014 and ended on November 17, 2014.

On November 17, 2014, the jury empaneled in this case returned a verdict finding Giant Eagle 73% negligent and Stapas 27% negligent and awarded Stapas damages totaling $2,086,000. This [c]ourt entered a verdict in favor of Stapas and against Giant Eagle in the amount of $1,522,780 as molded pursuant to the percentage apportionment of fault directed by the jury. Stapas filed a petition for delay damages on November 26, 2014 pursuant to Pa.R.C.P. 238. On February 25, 2015, this [c]ourt entered an Order adding delay damages in the amount of $279,795.17 to the verdict, for a total award in favor of Stapas in the amount of $1,802,575.17.

On November 26, 2014, Giant Eagle filed a timely motion for post-trial relief pursuant to Pa.R.C.P. 227.1 seeking a new trial and/or [JNOV] and/or a remittitur. This [c]ourt never ruled on Giant Eagle's motion for post-trial relief because oral argument on Giant Eagle's motion was continued generally pending receipt of a complete trial transcript. The complete transcript of proceedings was not filed in this case until July 20, 2015, more than eight (8) months after completion of the trial. On July 24, 2015, after receipt of the complete trial transcript, Stapas filed a praecipe to enter judgment in the amount of $1,802,575.17 representing the molded verdict plus delay damages.^[2]On August 21, 2015, Giant Eagle filed a Notice of Appeal to the Superior Court.^[3]

Trial Court Opinion, 11/2/15, at 1–2 (unnumbered). The trial court also provided the following factual background:

Stapas was seventeen (17) years old on the date of the incident and was employed as a busboy and dishwasher [at a Southside restaurant, working 40 hours a week and earning] $8.25 per hour plus approximately $14 to $20 per night in tips. He also periodically cleaned the grills at [the restaurant] in the early mornings prior to his shift to earn some extra money.

Prior to the shooting, Stapas would frequently go to the GetGo in Southside after his shift[.] Stapas became casual friends with two of the night shift clerks, Crystal Stogden and LaToya Stevens, over a period of approximately one (1) month prior to the shooting.

Stapas worked [on July 17, 2007 until around midnight, spent time with a friend who was waiting for a bus, and] then walked to the GetGo around 1:25 a.m. on July 18, 2007. Stapas entered the store at 1:26 a.m. and sat and talked to Ms. Stogden while she was making sandwiches behind the counter.^[4]

At 1:27 a.m. an unidentified young man entered the store and purchased a few items from Ms. Stogden. After paying for the items, the unidentified young man held the door open for Mr. McCallister to enter the GetGo. McCallister had previously been banned from the GetGo store.^[5]

Upon entering the GetGo, McCallister began arguing with Ms. Stogden about being banned from the store. Stapas testified that he had nothing to do with the argument and that he had no prior issues with McCallister. McCallister exhibited signs of intoxication. Stapas stepped toward McCallister in an effort to calm the situation. He said he was concerned about trying to protect the female workers from McCallister. Ms. Stogden also walked around the counter and told McCallister to leave the store and escorted him out the door.

Stapas followed McCallister outside where the situation escalated. Although Giant Eagle has a policy that employees should remain in the store in this type of situation, both workers came outside causing the situation to escalate. McCallister was screaming obscenities at the female workers as they continued to argue with each other. Stapas tried to separate McCallister and the female workers and to calm the situation. There were no security guards working at the store.

Stapas followed McCallister to his vehicle while the two men were arguing and tried to get him to leave. Stapas was concerned that he would be attacked by McCallister and the other male individual who arrived with McCallister. A physical fight ensued between Stapas and McCallister in the parking lot which then escalated to McCallister pulling out a gun and shooting Stapas four (4) times at approximately 1:30 a.m. McCallister had the gun on his person and did not retrieve it from his car.

Stapas was admitted to Mercy Hospital on July 18, 2007 and was discharged on August 4, 2007. Stapas returned to work ... about two weeks after he was released from the hospital, missing a total of six (6) weeks of work. He continued to work various jobs and eventually attended a class on working in the natural gas industry and is now employed by Patterson–Drilling UTI.

Stapas has scarring from the bullets themselves, and from the surgical procedures necessary to remove the bullets. Stapas also experiences daily stomach pain which is aggravated at his job and when doing strenuous activity. Stapas is regularly concerned about losing his job if he is unable to push through the pain.

Id. at 2–4 (unnumbered) (citations to trial transcripts omitted). Our review of the record confirms that the trial court has fairly summarized the procedural history and factual background.

Giant Eagle presents five issues for this Court's consideration:

I. Wether Giant Eagle properly preserved its right to seek a new trial based on the jury's evident partiality against Giant Eagle and violation of their oaths when they awarded $1.3 million for future wage loss that Stapas conceded he was not entitled to recover?

II. Whether the jury's evident partiality and violation of their oaths when they awarded $1.3 million for indisputable non-existent future wage loss undermines the entire verdict warranting a new trial for Giant Eagle?

III. Whether Giant Eagle also is entitled to a new trial because the trial court informed the jury that they must consider Stapas a business invitee to whom the highest duty of care is owed despite ample evidence in the record permitting the jury to find that Stapas was a mere licensee?

IV. Whether the [t]rial [c]ourt erred in refusing to grant Giant Eagle a mistrial after the jury heard improper evidence regarding (a) Giant Eagle's subsequent remedial measures; (b) Stapas' alleged lack of health insurance; and (c) Stapas' use of a demonstrative exhibit that contained unsupported references to "sexual gestures" allegedly made by the shooter to a Giant Eagle employee before the incident?

V. Whether Giant Eagle is entitled to JNOV based on Stapas' assumption of the risk of harm resulting from voluntarily leaving the safety of the store to pursue his attacker which, in turn, led to his participation in a fight that he escalated by throwing the first punch?

Appellant's Brief at 5.

As reflected in the issues as presented, Giant Eagle contends the trial court improperly denied its request for a new trial. This Court has recognized:

[T]he standard of review of the denial of a motion for a new trial is not different than the grant of a new trial. Livelsberger v. Kreider , 743 A.2d 494 (Pa. Super. 1999).

Our standard of review in denying a motion for a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or committed an abuse of discretion. A new trial will be granted on the grounds that the verdict is against the weight of the evidence where the verdict is so contrary to the evidence it shocks one's sense of justice. An appellant is not entitled to a new trial where the evidence is conflicting and the finder of fact could have decided either way.

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