Ligon v. Middletown Area School Dist.

• Court: Commonwealth Court of Pennsylvania
• Citation: 136 Pa.Cmwlth. 566,584 A.2d 376
• Parties: Lawrence M. LIGON, Appellant, v. The MIDDLETOWN AREA SCHOOL DISTRICT and Reynolds Aluminum Building Products Company, Appellees. Lawrence M. LIGON v. The MIDDLETOWN AREA SCHOOL DISTRICT and Reynolds Aluminum Building Products Company. Appeal of REYNOLDS ALUMINUM BUILDING PRODUCTS COMPANY, Appellant.
• Decision Date: 11 December 1990

Page 376

584 A.2d 376 136 Pa.Cmwlth. 566 Lawrence M. LIGON, Appellant,
v.
The MIDDLETOWN AREA SCHOOL DISTRICT and Reynolds Aluminum
Building Products Company, Appellees.
Lawrence M. LIGON
v.
The MIDDLETOWN AREA SCHOOL DISTRICT and Reynolds Aluminum
Building Products Company.
Appeal of REYNOLDS ALUMINUM BUILDING PRODUCTS COMPANY, Appellant. Commonwealth Court of Pennsylvania. Argued Sept. 14, 1990.
Decided Dec. 11, 1990.

Page 378

[136 Pa.Cmwlth. 570] Neil J. Rovner, Angino & Rovner, P.C., Harrisburg, for appellant, Lawrence M. Ligon.

Charles W. Rubendall II, Keefer, Wood, Allen & Rahal, Harrisburg, for appellee and cross-appellant, Reynolds Aluminum Building Products Co.

James Thomas II, Thomas & Thomas, Harrisburg, for appellee, Middletown Area School Dist.

Before CRAIG, President Judge, SMITH, J., and SILVESTRI, Senior Judge.

SMITH, Judge.

This case involves consolidated cross-appeals from a judgment entered by the Court of Common Pleas of Dauphin County in favor of Lawrence W. Ligon (Ligon) and against the Middletown Area School District (School District) and Reynolds Aluminum Building Products Company (RABPCO). Ligon argues in No. 1055 C.D.1990 that the [136 Pa.Cmwlth. 571] trial court erred in refusing to amend the verdict to relieve the School District of all liability, so as to place full liability for the verdict on RABPCO. RABPCO argues in No. 1056 C.D.1990 that the trial court erred by not granting RABPCO a judgment n.o.v. or a new trial, contending that the trial court committed numerous errors during the course of the trial. The judgment of the trial court is affirmed.

Page 379

Ligon was a fire safety inspector for American Fire and Safety Company (AFSC). On August 22, 1986, the School District requested AFSC to complete the yearly inspection of fire extinguishers at the Feaser School in Middletown, Pennsylvania. The School District was a regular account of AFSC; and Ligon, as an employee of AFSC, had inspected the fire extinguishers at the Feaser School for several years. On August 25, 1986, Ligon drove to the school for the inspection, complying with the School District's request for expedient service.

At that time, RABPCO was performing renovations at the school, including the installation of an elevator where the school's incinerator was once located. When Ligon arrived at the school, he proceeded to the school's incinerator room where he knew a fire extinguisher was kept or stored. Ligon opened the doors to this room and saw a second solid metal door which had not been present before. Although the interior of this room was dark, Ligon used the light from the outside hallway to transverse the approximately five feet to the second door. The outside door closed as Ligon opened the second door and reached in to find the light switch he believed was within. Ligon then fell fifteen feet down an empty elevator shaft which had been installed by RABPCO, sustaining serious injuries to his back. There were no warning signs in the area posted by either RABPCO or the School District; the doors to the elevator shaft were not locked, despite the fact that they were usually locked when not in use for construction purposes; and the work light in the elevator shaft area, though [136 Pa.Cmwlth. 572] normally turned on, was for some reason out the morning of the accident.

Ligon brought suit against the School District and RABPCO. The matter was tried before a jury; and before Ligon rested his case, he entered into a joint tortfeasor's settlement with the School District. The issue of the School District's liability nevertheless went to the jury, which returned a verdict in favor of Ligon for $175,000, assigning 32.5% liability to the School District and 67.5% liability to RABPCO.

I. Ligon's Appeal

Discovering that the jury's award against the School District exceeded the settlement amount with the School District, Ligon filed post-trial motions to have the School District relieved of liability on the grounds of local governmental immunity so that RABPCO would remain as the sole defendant responsible for the jury's award. Ligon's motions were denied, and Ligon asserts in this appeal that the trial court erred in denying the motions because evidence was presented at trial showing that the area of the school in question was under the complete control of RABPCO and therefore not in the "possession" of the School District, a necessary element of the real property exception to local governmental immunity under 42 Pa.C.S. § 8542(b)(3). ¹ Ligon also argues that because a third person, RABPCO, contributed to the injuries, the School District cannot fall under any of the exceptions to local governmental immunity.

The trial court found that the record contained sufficient evidence for the jury to conclude that the School District possessed and controlled the area where Ligon sustained his injuries. It also described Ligon's reversal of positions regarding the liability of the School District in the following manner:

[136 Pa.Cmwlth. 573] Not since Joan dePlucelle in Shakespeare's Henry VI, Part I, attempted to defend herself from a capital charge by proclaiming herself a virgin and then, seeing that that particular defense was unlikely to prevail, informed the judge that she was with child, has anyone argued a judicial point with a more breathtaking lack of concern for consistency.

Trial Court Opinion, pp. 4-5. Although other litigants certainly have spun to the depths of Shakespeare's sad example, Ligon's reversal of positions on the School

Page 380

District's liability does indeed raise substantial questions about its propriety.

Pursuant to the doctrine of judicial estoppel, a party to an action is estopped from advocating a position inconsistent with his or her position in a previous action if the prior position was successfully maintained. Associated Hospital Service v. Pustilnik, 497 Pa. 221, 439 A.2d 1149 (1981). Certainly, this doctrine would apply with equal if not greater force when a party switches positions within the same action. See Selected Risks Insurance Co. v. Kobelinski, 421 F.Supp. 431 (E.D.Pa.1976) (judicial estoppel is the well established principle that a party may not assert contrary positions in the same or related proceedings). Federal courts have long applied this principle of estoppel where litigants "play fast and loose" with the courts by switching legal positions to suit their own ends. Scarano v. Central R. Co. of New Jersey, 203 F.2d 510 (3d Cir.1953); Wade v. Woodings-Verona Tool Works, Inc., 469 F.Supp. 465 (W.D.Pa.1979); Selected Risks.

Judicial estoppel has been applied to prevent a party from changing his or her position regarding jurisdiction because it suited that party's interests. Buehler v. Philadelphia & Reading Ry. Co., 280 Pa. 92, 124 A. 325 (1924); Selected Risks. That is analogously the situation in this case. Ligon brought an action against the School District, prosecuted that action, and allowed the issue of the School District's liability to go to the jury without objection, all without any concern that the School District may have been [136 Pa.Cmwlth. 574] immune from suit. Once Ligon prevailed when the jury returned a verdict against the School District, Ligon reversed himself and argued that the School District was immune from suit, in essence that the trial court lacked the power to enter a judgment against the School District. Further, Ligon raises a defense on behalf of the School District that the School District itself never raised. Consequently, Ligon's assertion of the School District's immunity, now that the School District has settled with Ligon, appears specious and, moreover, an attempt to impose responsibility against RABPCO for payment of the entire jury award, thereby recovering the $175,000 jury award while retaining proceeds of the School District settlement. In consideration of all of these factors, it is apparent to this Court that Ligon is estopped from arguing a contrary position concerning the trial court's power to enter a verdict against the School District that Ligon had taken throughout trial to a successful conclusion. See Iselin v. La Coste, 147 F.2d 791 (5th Cir.1945), holding that a party that admits the existence of subject matter jurisdiction in a first litigation cannot contend in a subsequent collateral litigation between the same parties that jurisdiction had been lacking. Accordingly, because Ligon's appeal is unquestionably devoid of merit, the trial court's refusal to amend the verdict to relieve the School District of liability will be upheld.

II. RABPCO's Appeal

RABPCO raises seven issues regarding alleged errors made by the trial court. This Court shall address them in the order they are raised.

1. The Faust deposition.

First, RABPCO argues that the trial court erred or abused its discretion by sustaining...