Danielle Walker, et al vs. Carol Stoltz, et al No. 2015-01656

Civil Action-Law-Negligence-Slip and Fall-Apartment Building-Ramp-Motion in Limine-Expert Testimony-Professional Engineer-Building Codes and Ordinances-Retroactive Application

Plaintiffs filed a Complaint in negligence against Defendants alleging that the entrance ramp of a property owned by Defendant Carol Stoltz negligently had been constructed and/or maintained after Sheila B. Hines slipped and fell from the ramp and passed away thereafter. Defendants have filed a Motion in Limine to preclude the testimony of Plaintiffs’ expert professional engineer that Defendants violated ordinances and codes referenced in his report, the ramp was substandard, defective and dangerous and the condition of the ramp was a factual cause of Sheila B. Hines’ fall.

1. The sweeping nature of Defendants’ Motion in Limine causes concern, as Plaintiffs would not be able to pursue their cause of action if the Motion were to be granted.
2. Expert testimony can be required to prove negligence when the issue at hand is beyond the knowledge of the ordinary citizen.
3. A municipality retroactively can enforce building code provisions upon land owners without violating constitutional protections.
4. Most modern building codes contain “grandfather provisions” that explicitly preclude retroactive of codes to require retrofitting of existing structures. Retroactive application of building code provisions to require remodeling rarely is sought as an administrative remedy.
5. There could be exceptions to the general rule that subsequent codes do not require retrofitting of buildings that expert may be able to identify.
6. A violation of a subsequently enacted building code does not constitute negligence per se.
7. Since Plaintiffs’ expert was very careful to avoid predicating his opinion upon building codes not in effect when the ramp was constructed, it would be unfair to prevent him from testifying about how ingress and egress facilities of an apartment complex should be maintained because he referenced subsequently enacted code provisions in his report.
8. Plaintiffs’ expert will be permitted to provide testimony about his opinions including building codes to the extent that they are important to his opinion, and Defendants fully will be permitted on cross examination to explore the opinion to the extent that the building codes predated or otherwise are inapplicable to the ramp in question.
L.C.C.C.P. No. 2015-01656, Opinion by Bradford H. Charles, Judge, January 4, 2018.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
CIVIL ACTION – LAW NO. 2015-01656

DANIELLE WALKER, ET AL, et al, Plaintiffs
v.
CAROL STOLTZ, ET AL, et al, Defendants

ORDER OF COURT
AND NOW, this 4th day of January, 2018, upon consideration of the Motion in Limine filed by the DEFENDANTS, and in accordance with the attached Opinion, the Motion in Limine seeking to preclude testimony of PLAINTIFF’s expert witness James Druecker is denied.

BY THE COURT:

BRADFORD H. CHARLES, J.
APPEARANCES:

Lisa J. Mauer, Esquire FOR PLAINTIFFS
GRAHAM & MAUER, P.C.

Timothy J. Huber, Esquire FOR DEFENDANTS
BUZGON DAVIS LAW OFFICES

OPINION BY CHARLES, J., January 4, 2018
Some cases just need to be tried. Despite the best efforts of the defense to prevent trial by legal maneuvering, we have concluded and still conclude that this is a case that will have to be resolved by a finder of fact. Therefore, the DEFENDANTS’ sweeping Motion in Limine designed to effectively gut the PLAINTIFF’s case by precluding testimony from her expert witness will be denied.
I. FACTS AND PROCEDURAL BACKGROUND
On December 7, 2014, STOLTZ was the owner of real estate located at 216 Lehman Street in the City of Lebanon (hereafter PREMISES). Affixed to the rear of the premises was a wooden ramp. Below is a photograph of this ramp.

On December 7, 2014, Sheila B. Hines slipped and fell from the wooden ramp depicted in the above photograph. Within one-half hour of her fall, Ms. Hines called 911. The following telephone exchange occurred:
Q: And, now tell me exactly what happened.
SH: I went to empty the garbage and I slid off the ramp and I hit the ground and my head bounced on the ground.
Q: What did you fall off of?
SH: The ramp…
Q: Okay, and how far did you fall?
SH: Oh, off the ramp to the ground.
Q: Okay and what caused you to fall?
SH: I slipped.
Q: You slipped. Okay.
SH: Yes.
(911 transcript at pages 1 and 2)
Unfortunately, this was the only recitation by Ms. Hines of what occurred on December 7, 2014. She died relatively soon after the fall.
On February 12, 2016, PLAINTIFF filed a Civil Complaint alleging that the ramp was negligently constructed and/or maintained. Following the conclusion of discovery, DEFENDANT filed a Motion for Summary Judgment on March 24, 2017. On August 17, 2017, this Court entered an Order to deny the DEFENDANT’s Motion for Summary Judgment. In our Opinion, we noted appellant precedent that supported the positions proffered by both parties. We noted “two primary reasons” why the DEFENDANT’s Motion for Summary Judgment should be denied:
“The first reason for sending this case to trial is that PLAINTIFF’s theory of negligence does not depend upon a fall at a specific location or in a specific manner. The opinion of James C. Druecker, P.E. is that the ramp located at the rear of 216 Lehman was defective because it was too steep and did not have handrails or a slip-resistant surface. Mr. Druecker stated that the ramp was almost twice as steep as permitted by applicable building codes. Because of the steepness of the ramp, the lack of a slip-resistant surface and handrails, Mr. Druecker concluded that the ramp was “dangerous”. More to the point, all of the above safety features are designed to prevent people from slipping…which is the precise modality of Ms. Hines’ fall.
The second and more important reason we will send this case forward is because the function of juries is to decide these types of cases. We are well aware of the purpose of Summary Judgment. The law is crystal clear that Summary Judgment is to be awarded only in “the clearest of cases.” As we read case after case on the issue of slip and fall causation, we kept returning to the language of the Pennsylvania Superior Court in Cade v. McDaniel [679 A.2d 1266, 1271 (Pa. Super. 1996)]: “The right of a litigant to have a jury pass upon the facts is not to be that a reasonable man might properly find either way. A substantial part of a right to trial by jury is taken away when judges withdraw close cases from the jury.” Id at page 1271.”
Based upon these two factors, we denied the DEFENDANT’s request for Summary Judgment and directed that a trial on the merits be conducted.
On October 10, 2017, the DEFENDANT filed a Motion in Limine to preclude testimony from PLAINTIFF’s expert, James Druecker. The Motion was sweeping in its scope. Effectively, the defense asked us to prevent any meaningful opinions by Mr. Druecker regarding the suitability of the ramp located at the PREMISES.
Both parties have filed briefs with respect to the DEFENDANTS’ Motion for Summary Judgment. We issue this Opinion to address the request by the defense to preclude testimony from PLAINTIFFS’ expert witness.
II. DISCUSSION
Initially, we need to acknowledge the DEFENDANT’s Motion in Limine for what it is – another effort to achieve dismissal of the above-referenced litigation via a pre-trial motion. The relief requested by DEFENDANT is evidence-preclusion of the following:
1. The various ordinances and codes cited in Mr. Druecker’s February 2, 2017, report;
2. That DEFENDANTS violated various codes and ordinances relating to the existence of the ramp;
3. That the ramp was “substandard,” “defective,” “not properly maintained in a safe condition,” and “dangerous;” and
4. That the condition of the ramp was a “factual cause” of bringing about the alleged fall PLAINTIFF’s decedent; and/or was a “causal factor” of PLAINTIFF’s decedent’s fall.
If we were to grant this relief, PLAINTIFF would not be able to pursue the causes of action articulated in the complaint. Candidly, the sweeping nature of DEFENDANT’s Request for Relief causes us concern.
Pennsylvania has long recognized that expert testimony can be required to prove negligence when the issue at hand is beyond the knowledge of the ordinary citizen. See, e.g. 1 West’s Pennsylvania Practice, 4th Ed., §721 (“When Expert Testimony is Necessary”) and cases cited therein. This case deals with an entrance/exit ramp designed to facilitate ingress and egress by people who will not or cannot use stairs. Proper construction of such fixtures is, in our opinion, an issue that implicates expert consultation. Precluding all expert testimony about this topic from an expert engineer strikes us as a draconian remedy…and we will not employ it.
With the above being said, we share some of the DEFENDANT’s concerns, particularly about the reliance by James Druecker upon building codes that post-dated construction of the ramp itself. Is it fair to impose a duty upon a land owner to comply with construction codes that were not yet in existence when construction occurred? Our answer to that question is…probably not.
Administratively, a municipality can retroactively enforce building code provisions upon land owners without violating the United States and Pennsylvania Constitutions. Wood v. City of Pittsburgh, 460 A.2d 390 (Pa. Cmwlth. 1983). However, most modern building codes contain so-called “grandfather provisions” that explicitly preclude retroactive application of codes to require retrofitting of existing structures. See, Myers v. Penn Township, 812 A.2d 766 (Pa. Cmwlth. 2002); 53 P.S. §10508. Because of this, retroactive application of building codes to require remodeling is rarely sought as an administrative remedy.
An attempt to retroactively apply building codes is more common in negligence actions that it is administratively. At this point, Pennsylvania has a fairly well-defined body of case law to address situations such as the one at hand where experts seek to impose civil culpability on a possessor of land for failing to adhere to building codes that were not in effect when the structure itself was constructed. Neither PLAINTIFF nor our own extensive research has revealed any case where Courts have declared a violation of a subsequently-enacted code provision to be negligence per se. In fact, one case has specifically stated: “The BOCA code does not require appellees to retro-fit the stairs to bring them into compliance with the modern code. Thus, this is not a case of negligence per se.” Dilauro v. One Bala Avenue Associates, 615 A.2d 90 (Pa. Super. 1992).
On the issue of whether an expert can even testify about a subsequently-enacted code provision, there are two basic approaches. One is to preclude such testimony altogether. The other is to permit such testimony with cautionary instruction as to how it could be considered.
In Houdeshell Exrel Bordas v. Rice, 939 A.2d 981 (Pa. Super. 2007), the plaintiff sued in negligence based upon a theory that the defendant should have installed safety glass on a sliding glass door. An expert was proffered to testify about the necessity of safety glass based upon modern building code provisions. The Trial Court refused to permit testimony about these codes and stated:
“We also affirm the trial court’s decision precluding evidence that since 1971, it has not been legal to install plate glass in new sliding doors and that current building and construction standards prohibit use of plate glass in sliding glass doors. These plate glass doors were installed in 1958, and the 1971 law did not apply to the door in question. Furthermore, appellees are not contractors or builders or otherwise involved in the construction business. They would not have any reason to have knowledge of building codes and laws relating to permissible building materials. Hence, such evidence was not relevant to the issue presented in this case, which were whether appellants knew or should have known of the dangerous condition of their property and failed to take reasonable care to resolve that condition…The 1971 law did not require replacement of the glass in the door installed in 1958, and appellees were not aware of nor were they subject to the building codes in question.” Id at page 986.
Similarly, in Kiehner v. School District of Philadelphia, 712 A.2d 830 (Pa. Cmwlth. 1998), a plaintiff filed a negligence action based upon a fall that occurred in the stairwell of an elementary school. The plaintiff proffered an expert to testify that the stairwell did not comply with applicable BOCA codes. Noting that the building itself was constructed in 1902 and the BOCA code was only adopted by the City of Philadelphia in 1991, the Trial Court refused to permit such testimony. The Commonwealth Court affirmed and stated: “the school district had no duty to retrofit or remodel its school buildings to bring it in compliance with the current BOCA code, which permits the existing building to continue without any change.” Id at page 832.
On the other hand, in Dilauro, Supra, evidence was presented about a BOCA code that was not in place when the building itself was constructed during the 1950s. However, the jury was also told “It is not obligatory for the owners to retrofit the building to comply with the BOCA Code.” The Commonwealth Court affirmed the jury’s decision in favor of the defendant and stated:
“Although the steps did not meet present BOCA Building Code standards, the stairs were constructed decades before that code was adopted in Lower Merion Township and were in compliance with all applicable codes at the time of their construction. The BOCA Code does not require appellees to retro-fit the stairs to bring them into compliance with the modern code. Thus, this is not a case of negligence per se. Given these facts, it is entirely proper for the jury to have determined that appellees were not negligent.” Id at page 195-196
A similar approach was employed in the case of Banohashim v. R.S. Enterprises LLC, 2012 W.L. 8745189 (Erie Co. 2012). In Banohashim, the Court permitted plaintiff’s expert to reference an international property maintenance code. However, the Court specifically instructed the jury:
“Now, while the 2003 International Property Maintenance Code and the A.S.T.M. Code serves as a proper source for which Dr. Eck can base his opinion, these codes did not require the defendant to change the structure because the structure pre-dated the codes. In other words, it was built before the codes were enacted and they were not the law at the time this building was built.”
Of the two options outlined above, we prefer the second. Among the reasons for this preference are the following:
• We have read Dr. Druecker’s report. Clearly, he relies upon building codes that were not in effect when the ramp was constructed. However, he was very careful to avoid predicating the entirety of his opinion upon those building codes. As a professional engineer, Mr. Druecker is capable of providing testimony about how the ingress and egress facilities of an apartment complex should be maintained. We believe it would be unfair to prevent him from providing such testimony simply because subsequently-enacted code provisions are referenced in his report.
• This case will involve a Bench Trial and not a Trial by jury. As such, this Court is able to sift between evidence that is important and evidence that should not be afforded great weight. Moreover, this jurist is already aware of the controversial code provisions by virtue of the DEFENDANT’s Motion in Limine and our review of Mr. Druecker’s report. Stated simply, we see no problem with erring on the side of caution by admitting rather than excluding possibly relevant evidence.
• The alleged cause of PLAINTIFF’s fall was not part of the originally constructed structure; it is a wooden ramp installed at some point after construction of the house. One of the reasons for excluding older structures from newly-enacted code provisions is the expense that would be involved in retro-fitting older buildings. In this case, the ramp could be far more easily replaced or altered than would structural components of the apartment building itself.
• We are not prepared to make a sweeping proclamation that subsequently-adopted codes can never be relevant to the issue of negligence. If, for example, a code simply codifies a generally accepted norm, the code could be relevant to establish the norm itself. In addition, sometimes generally accepted construction technology can render a “grandfathered” structure per se obsolete and potentially harmful. To use an extreme example, codes mandating indoor plumbing can be enforced to require replacement of outhouses even when the structure was constructed at a time when outhouses were common. While we recognize and respect the general rule that subsequent codes do not require retro-fitting of buildings, we recognize that there could be exceptions to that general rule that an expert might be able to identify.
• If we were to preclude any reference by Mr. Druecker to building codes, we could actually limit the DEFENDANT’s ability to cross-examine him. As noted above, building codes that post-dated construction of the ramp are not binding proof of negligence. Moreover, there is a problem of fundamental fairness whenever anyone seeks to impose a standard on conduct that was not recognized as a standard when the conduct occurred. To the extent that the defense can tie Mr. Druecker’s opinion to building codes and to the extent that those building codes are deemed non-binding, then reliance by Mr. Druecker on the building codes could actually serve to help the DEFENDANTS.
As we sift through everything, we conclude that the proper approach is to allow Mr. Druecker to provide testimony regarding his opinions. To the extent that building codes are important to Mr. Druecker’s opinion, we will permit him to so state. To the extent that those building codes pre-dated or were otherwise inapplicable to the ramp in question, we will allow the defense to fully explore that on cross-examination. In the end, we conclude that full transparency is the best and most efficient way for the finder of fact to discern whether the retention of an old wooden ramp that contained no handrail or slip-resistant substance can or cannot be deemed to constitute negligence. For today, all we will definitively declare is that a violation of subsequently-enacted building codes will not constitute negligence per se. Otherwise, we will not control or limit the nature of James Druecker’s testimony. The DEFENDANT’s Motion in Limine will therefore be denied.