Turner v. Valley Housing Development Corp.

972 A.2d 531

2009 PA Super 72

Dorothy J. TURNER, Executrix of the Estate of Roberta Wismer, Appellant v. VALLEY HOUSING DEVELOPMENT CORPORATION, Appellee.

No. 543 EDA 2007.

Superior Court of Pennsylvania.

Argued August 19, 2008.

Filed April 16, 2009.

Reargument Denied June 23, 2009.

Michael A. Snover, Bethlehem, for appellant.

Jody A. Mooney and James J. Dodd-o, Bethlehem, for appellee.

BEFORE: STEVENS, MUSMANNO and BENDER, JJ.

OPINION BY MUSMANNO, J.:

¶ 1 Dorothy J. Turner ("Turner") appeals from the Order that denied Turner's Motion in limine, granted the Motion of Valley Housing Development Corporation ("Valley") to strike third party statements in medical records, and granted Valley's Motion for summary judgment. For the reasons stated herein, we affirm in part and reverse in part.

¶ 2 The pertinent facts of this case are as follows. Turner is the executrix of the Estate of her mother, Roberta Wismer ("Decedent"). Prior to Decedent's death, Turner and Decedent lived together in an apartment owned by Valley. On December 11, 2002, at about 6:00 p.m., Decedent, age 88, slipped and fell outside of her apartment building while walking her dog, resulting in a broken hip and shoulder. In a video deposition taken prior to her death, Decedent stated that she fell on the grass on the property, which was snow-covered. Decedent also indicated that the paved area did not have snow on it. During Decedent's deposition, taken on October 31, 2003, counsel for Valley objected to leading questions asked by Decedent's counsel. Decedent's counsel responded that "you can see that she is having difficulty expressing what she is thinking in her mind." Deposition, Roberta A. Wismer, 10/31/03, at 10.

¶ 3 Turner testified at a deposition that on December 11, 2002, she heard her mother screaming outside of the apartment building. From inside of the building, Turner saw her mother with her back against the curb in the parking lot, not on the grass. Deposition, Dorothy J. Turner, 5/8/06, at 20. One of Decedent's neighbors, William Lorenz, testified that when he came to help, Decedent was lying on the lawn with her feet out by the curb. Deposition, William R. Lorenz, 3/29/04, at 33-34. Medical personnel who attended to Decedent on the same day made various notations regarding Decedent's fall, including "patient stated that she fell on icy sidewalk," "fell on ice in driveway," "slipped on ice and fell," and "let her pet dog out on slippery lawn and curb slipped and fell [sic]." Plaintiff's Answer to Motion for Summary Judgment, 10/10/06, Ex. N, P, Q.

¶ 4 Turner stated in her deposition that there had been two snow storms, about a week apart, and that Valley did not plow the area until after Decedent's fall. Deposition, Turner, at 43. Turner indicated that, at the time Decedent fell, the parking lot was full of ruts. Id. at 27, 43. Another tenant, Lois Lorenz, testified to the existence of the ice and ruts. Deposition, Lois Lorenz, at 13-18. William Lorenz testified that there was no safe place to walk on the night Decedent fell. Deposition, William Lorenz, at 78.

¶ 5 In September 2003, Decedent filed an action against Valley alleging negligence and breach of contract/breach of implied warranty. Decedent died on January 30, 2004. An Amended Complaint was filed substituting Turner as plaintiff, and asserting survival and wrongful death causes of action.

¶ 6 In September 2006, Valley filed a Motion for summary judgment, asserting that since Decedent fell on grass, the doctrine of hills and ridges¹ did not apply, and contending that Turner had failed to prove causation. Turner filed an Answer to Valley's Motion for summary judgment, asserting that Decedent was incompetent at the time of her deposition, and that the medical records established that Decedent fell in the parking lot. Turner then filed a Motion in limine to strike Decedent's deposition testimony. Valley filed a Motion to strike the medical records attached to Turner's Answer to Valley's Motion for summary judgment, arguing that the statements in the records were hearsay. Turner argued that the medical records were admissible because Valley had stipulated to their authenticity and because hearsay exceptions applied.

¶ 7 The trial court denied Turner's Motion in limine, granted Valley's Motion to strike the third party statements in the medical records, and granted Valley's Motion for summary judgment. Turner then filed this timely appeal.

¶ 8 Turner raises the following issues on appeal:

1. Did the trial court commit an error of law and/or abuse of discretion in denying Turner's Motion in limine to preclude consideration of the deposition of Decedent and (a) in finding that Turner waived the objection to incompetency to testify by not raising the objection at the time of her deposition; (b) in finding that an expert report was necessary to determine competency to testify; (c) in finding that Turner did not proffer any expert support for the finding that Turner's Decedent was incompetent to testify at the time of her deposition; and (d) in failing to otherwise evaluate the witness for competency to testify?

2. Did the trial court commit an error of law and/or abuse of discretion in granting Valley's Motion to strike medical records, and in failing to find that Turner's proffered statements in the medical records concerning the location and cause of the fall were admissible under the medical treatment, excited utterance and/or present sense exceptions to the hearsay rule, and/or in finding that the medical record statements were unreliable as a matter of law?

3. Did the trial court commit an error of law and/or abuse of discretion in granting summary judgment in light of the existence of genuine issues of material fact relating to the cause and location of the fall, the credibility of Decedent even if competent to testify, the credibility of Turner and William Lorenz on the issue of cause and location of the fall, the application of the hills and ridges doctrine to the facts of this case, the adequacy of the lighting in the area of the accident, and whether or not Valley breached its duty under the lease to provide a safe path for dog walking?

Brief of Appellant at 3.

¶ 9 Turner first contends that the trial court erred and/or abused its discretion in denying her Motion in limine to preclude use of Decedent's deposition testimony. Turner, in her Motion in limine, alleged that Decedent was incompetent at the time of her October 31, 2003 deposition. Turner further alleged that, prior to the deposition, Decedent had been diagnosed with "dementia/psychosis." Plaintiff's Motion in Limine to Preclude Use of Videotape Deposition, filed 11/16/06. The trial court denied Turner's Motion on the basis that she had waived her right to preclude the deposition testimony by failing to raise the issue of Decedent's incompetence at the time of the deposition. The trial court also held that Turner had failed to provide an expert report establishing the Decedent's alleged incompetence.

¶ 10 When ruling on motions in limine, the appellate court applies the standard of review applicable to the particular evidentiary matter. Meridian Oil & Gas Enterprises, Inc. v. Penn Central Corp., 418 Pa.Super. 231, 614 A.2d 246, 250 (1992). When reviewing a trial court's ruling on a motion in limine, we use an abuse of discretion standard. Estate of Ghaner v. Bindi, 779 A.2d 585, 588 (Pa.Super.2001). Questions concerning the admissibility of evidence are within the sound discretion of the trial court, whose rulings will not be disturbed on appeal absent an abuse of discretion. Yankowsky v. Katz, Inc., 443 Pa.Super. 494, 662 A.2d 665, 667 n. 5 (1995).

¶ 11 "[A]n objection as to the competency of a witness to testify should be made before testimony is given if the incompetency is known, and if not, should be made as soon as it becomes apparent." Commonwealth v. Stoner, 284 Pa.Super. 364, 425 A.2d 1145, 1149 (1981).

¶ 12 Turner claims that, at the time the deposition was taken, it was not known by counsel that Decedent's doctor had determined that Decedent was suffering from "dementia/psychosis." She contends that she did challenge competency prior to presenting evidence to the jury, and that this was sufficient.

[O]bjections to the competency of a witness or to the competency, relevancy, or materiality of the testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one which was known to the objecting party and which might have been obviated or removed if made at that time.

Pa.R.C.P. No. 4016(b).

¶ 13 Turner argues that she was not aware of Decedent's incompetency at the time of the deposition, and that the reason for the incompetency could not have been removed or obviated. We conclude, based on Rule 4016(b) of the Rules of Civil Procedure, Turner did not waive her objection to use of Decedent's deposition because the ground of her objection, i.e., Decedent's alleged incompetency, was not known to Turner at the time of the deposition and also could not have been obviated or removed at that time.

¶ 14 We thus now address Turner's claim that the trial court erred in concluding that an expert was required to establish Decedent's incompetency.

It is for the trial judge to determine whether a witness is competent to testify. Such decision will not be overturned absent a clear abuse of the court's discretion. Moreover, the trial court need not order an investigation of a witnesses' competency unless he or she has some doubt of such after having observed the witness. As to witnesses who are suspected of suffering with mental illness, his or her testimony is still competent unless he or she is unable to give a correct account of the matters at issue.

Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650, 657 (1983) (citation omitted).

¶ 15 The Pennsylvania Rules of Evidence provide as follows with regard to...