Manuel v. Leighton

• Decision Date: 11 July 2022
• Docket Number: 589 MDA 2021,J-A10019-22
• Court: Pennsylvania Superior Court
• Parties: GEORGE MANUEL, AS ADMINISTRATOR OF THE ESTATE OF ROSEMARY K. MANUEL Appellant v. RICHARD LEIGHTON; MONROETON ROD & GUN CLUB; MONICA LANDMESSER; THE NEW BUCKET, INC.; STAR MCKEAN; AND KATIE BRIDE

GEORGE MANUEL, AS ADMINISTRATOR OF THE ESTATE OF ROSEMARY K. MANUEL Appellant v. RICHARD LEIGHTON; MONROETON ROD & GUN CLUB; MONICA LANDMESSER; THE NEW BUCKET, INC.; STAR MCKEAN; AND KATIE BRIDE

No. 589 MDA 2021

No. J-A10019-22

Superior Court of Pennsylvania

July 11, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment Entered April 23, 2021, in the Court of Common Pleas of Bradford County, Civil Division at No(s) 2016-CV-0123.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM

KUNSELMAN, J.

The Plaintiff in this wrongful-death action, George Manuel Administrator of his mother Rosemary Manuel's estate, appeals from the judgment entered in his favor and against Richard Leighton for $594,945.21. The parties agree Mr. Leighton drove while drunk, collided with Ms. Manuel's car, and caused her death. The Administrator believes two bars - the Monroeton Rod & Gun Club ("the Gun Club") and The New Bucket, Inc.^[1] - are also liable for his mother's death, because they served Mr. Leighton several beers prior to the incident. A Bradford County jury rejected the Administrator's claims against the bars. As explained below, we affirm.

The trial court summarized the facts as follows:

This civil case arose out of the [March 13, 2014] death of Rosemary Manuel from a motor-vehicle accident that occurred as a direct result of the negligence of Richard Leighton who pled guilty in a separate, criminal proceeding to homicide by vehicle while driving under the influence of alcohol. Liability on the part of Mr. Leighton was admitted. See [N.T.], 8/21/20, at 171-72. The contested issues resulted from the Dram Shop action that [the Administrator] filed against . . . the two bars at which Mr. Leighton was served and consumed beer, The New Bucket and the [Gun Club] . . .

The principal issue at trial was whether either or both bars served Mr. Leighton at a time when he was visibly intoxicated. Because video surveillance from each bar captured the day's events, there was no dispute that he was served at least eight beers at The New Bucket over 3 ½ hours (from a little before 12:00 noon to nearly 3:30 p.m.) and was served two beers at [the Gun Club] over less than 50 minutes (from about 3:40 p.m. to almost 4:30 p.m.). According to the testimony of the bartender at [the Gun Club], she told Mr. Leighton he'd "had enough" after observing him fumble with his cigarette and try to light it backwards. [N.T.], 8/20/20, at 230-235. After that, Mr. Leighton did not drink any more beer, leaving the rest of his unfinished beer on the counter. The crash occurred at or about 4:34 p.m., approximately 5 minutes after Mr. Leighton left [the Gun Club. See N.T.], 8/21/20, at 59-61.

Trial Court Opinion, 4/23/21, at 1. A few hours later, Ms. Manuel died.

As mentioned, the Administrator sued Mr. Leighton. He also sued the two bars under theories of negligence per se (for allegedly violating the Dram Shop Act) and common-law negligence (for allegedly failing to serve alcohol and to operate their establishments in a reasonably prudent manner).

Ms. Westbrook, the manager of the Gun Club, served as its corporate designee in this lawsuit. Throughout her testimony, the Administrator's attorney asked Ms. Westbrook a string of hypothetical questions. Based upon her answers, the Administrator moved for a directed verdict against the Gun Club. The trial court denied his motion.

Also, during trial, the Administrator expressed concerns with the video from the Gun Club's security cameras. Notably, that video (which a third-party company burned to a CD and provided to the Pennsylvania State Police shortly after Ms. Manuel's death) plays back at superfast speed.^[2] The video also has several recording gaps. The Administrator believed those gaps were the result of the Gun Club either deleting scenes or directing the third-party company to burn only certain sections to the CD. Thus, he sought a jury instruction on spoilation of evidence, which the trial court denied.

The Administrator's insinuation of an altered video prompted the Gun Club to ask one of its experts (Joseph Kolins) about the recording's gaps. The Administrator objected, because Mr. Kolins neither discussed nor opined on the gaps in his expert report. The trial court overruled the objection. Mr. Kolins testified that the gaps, which were each about 1 minute and 40 seconds in length, resulted from normal resets of the motion-detector camera. Thus, in the expert's opinion, no one altered the surveillance video.

At the conclusion of trial, based upon the parties' stipulations, the trial court directed a verdict finding Mr. Leighton negligent. After deliberations, the jury ruled that neither bar was negligent. The jury also awarded $500,000 in damages to the Estate of Ms. Manual from the car accident.

The trial court denied the Administrator post-trial relief, but granted $94,945.21 in delay damages, and entered a judgment in favor of the Estate. The Administrator timely appealed.

He raises the following five issues for our review:

1. Whether the trial court erred in not granting a directed verdict [for the Administrator] where the corporate designee [of the] Gun Club specifically admitted that its . . . bartender . . . served a visibly intoxicated [Mr.] Leighton an alcoholic beverage resulting in the death of [Ms.] Manuel and the jury was not instructed as to admissions of fact pursuant to Standard Jury Instruction 2.40 (Civ)?

2. Whether the trial court erred in not granting [JNOV in the Administrator's] favor where the evidence is such that no two reasonable persons could disagree the verdict should have been entered for the [Administrator,] because on the date of this incident [Mr. Leighton] was visibly intoxicated at the time of the Trooper's interview; the undisputed testimony is that the time of the collision was only minutes after being served a second beer at the Gun Club; and thus, [Mr. Leighton] would have to be visibly intoxicated while being served at the Gun Club?

3. Whether the trial court erred in not granting [the Administrator's] motion for post-trial relief where Mr. Kolins, the defense Dram Shop expert, was allowed to opine on video surveillance issues outside of the four corners of his report?

4. Whether the trial court erred in not granting [the Administrator's] Motion for Post-Trial Relief where a mistrial should have been granted concerning defendants questions regarding [Ms. Manuel] possibly not wearing a seatbelt?

5. Whether the trial court erred in not granting [the Administrator's] Motion for Post-Trial Relief where . . . the jury was not instructed as to spoliation and adverse inferences pursuant to Standard Jury Instruction 5.30(Civ)?

Administrator's Brief at 7-8. We address each claim in turn.

A. Alleged Admissions of Ms. Westbrook

To begin, the Administrator seeks two different remedies based on his belief that Ms. Westbrook, the corporate designee, admitted liability on behalf of the Gun Club. First, the Administrator requests that we award him a directed verdict on liablity. Alternatively, he seeks a new trial and directive that the trial court charge the jury on party-opponent admissions.

Specifically, the Administrator seeks Pennsylvania Standard Jury Instruction 2.40 (Civ). We consider each sub-issue separately.

1. Judgment As a Matter of Law

Regarding his first sub-issue - that the trial court should have entered a directed verdict and thereby granted judgment as a matter of law^[3] - the Administrator argues that Ms. Westbrook admitted during her deposition that the Gun Club served Mr. Leighton beer while he was visibly intoxicated. He also claims that she admitted that serving Mr. Leighton beer was a proximate cause of Ms. Manuel's death. See id. at 15.

He asserts that Ms. Westbrook's testimony binds the Gun Club and results in it being liable, as a matter of law. The Administrator also includes block quotes of his questions to Ms. Westbrook concerning the Gun Club's alleged failure to implement policies and procedures, training, and other things that allowed Mr. Leighton, when visibly intoxicated, to be served at the bar. Id. at 22.

After extensive review, we conclude the Administrator waived this claim, due to insufficient development of the legal theory in his appellate brief. "The issue of waiver presents a question of law, and, as such, our standard of review is de novo, and our scope of review is plenary." Trigg v. Children's Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).

As Chief Justice Baer has explained, Pennsylvania's "rules of appellate procedure are explicit that the argument within a brief must contain 'such discussion and citation of authorities as are deemed pertinent.'" Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (quoting Pa.R.A.P. 2119(a)). "Where an appellate brief fails to provide any discussion of a claim with citation to relevant authority . . . that claim is waived. It is not the obligation of an appellate court to formulate appellant's arguments for him." Id. (some punctuation omitted). "Moreover, because the burden rests with the appealing party to develop the argument sufficiently, an appellee's failure to advocate for waiver is of no moment." Id.

Here, the Administrator has failed to include any "citation to relevant authority." Id. (emphasis added).

Instead of opening with any applicable law, the Administrator clutters his argument with pages of block quotes from the various transcripts. He does not consider our scope and standard of review for a denial of a directed verdict or JNOV. He likewise neglects to identify which of his claims of negligence (either negligence per se or common law negligence) he believes Ms. Westbrook admitted that the Gun Club...