J-A01009-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SHARON PORTER 

Appellant

v.

ARIA HEALTH-FRANKFORD

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1554 EDA 2023

Appeal from the Judgment Entered May 12, 2023

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): July Term 2021 No.: 00236

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and COLINS, J.*

MEMORANDUM BY LAZARUS, P.J.: FILED MAY 30, 2024

Sharon Porter appeals from the order granting judgment 

notwithstanding the verdict (JNOV) in favor of Aria Health-Frankford (Aria 

Health), and against Porter, and dismissing the matter with prejudice. After 

careful review, we affirm.

The trial court set out the history of the case as follows:

[Porter] brought this matter as an arbitration case in July 2021, 

alleging that, on July 13, 2020, she was a “business invitee” at 

[Aria Health] hospital when she suffered a fall. . . . [Porter]

claimed that she had sought treatment at the Emergency Room

[(ER)] for “intestinal problems,” explaining her presence at [Aria 

Health] as a business invitee, a status that [Aria Health] did not 

dispute. [Porter] alleged that, while using a public restroom near 

the ER, a “sudden and unexpected emanation of water from the 

sink took place, causing [Porter] to become startled, lose her

balance and fall to the floor,” striking her head. The [trial] court 

understands that the plain meaning of the word sink is a water 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A01009-24

- 2 -

basin[,] typical[ly] with a drain. [Porter] asserted liability based

upon “failure to maintain the sink . . . failure to inspect the sink .

. . failure to warn [Porter] of the dangerous condition existing in 

the sink . . . failure to assure business invitees that the sink was 

safe for use []and/or[] otherwise failing to use due care under the 

circumstances[.]” [Porter] did not allege what the dangerous 

condition was of the [sink. . . .]

The case proceeded to arbitration on May 2, 2022. The arbitrators 

entered verdict in favor of [Aria Health] and against [Porter], 

finding that [Aria Health] was not negligent. [Porter] appealed 

the decision on May 17, 2022, demanding a jury of 12 citizens. 

Following appeal of the finding in favor of [Aria Health], additional 

discovery occurred post-arbitration, and the case proceeded to 

trial before this court on March 6, 2023.

* * *

[Porter]’s case consisted of three witnesses — [Porter], [Andre 

Andrews,] a hospital maintenance engineer, [] and [Porter]’s 

medical expert, Richard DuShuttle, M.D., whose video deposition 

was taken in November 2022. [Porter] did not provide any []

testimony of [a] liability expert or offer any direct evidence in her 

case in chief regarding the hospital’s negligent or otherwise 

deficient inspection or cleaning procedures related to the sink. 

[Porter] also introduced and relied upon four exhibits: [Aria 

Health]’s record of a “Patient Safety Event” related to the 

incident[,] which only indicates that this incident took place at 

4:30 a.m. and involved a piece of the “spigot” found in the sink, 

a handwritten log kept by [] Andrews of his activities during his 

shift beginning on July 12 and ending July 13, 2020 (indicating 

that he was able to “repair the sink”), a Life Expectancy Table, 

and the Deposition Transcript of [] Andrews.

* * *

As to damages, counsel for [Porter] told the jury that [Porter]’s 

treatment and medical expenses she might incur in the future 

amounted to “around [$]3,000 a year.” The number was 

presumably based upon [Dr. DuShuttle’s] guestimate that 

[Porter] would potentially require future medical treatment 

totaling three to four weeks/year and physical therapy for the 

same number of days, at a ballpark of $250 per visit. . . . [T]he 
J-A01009-24

- 3 -

jury awarded [Porter] $1.8 million, which it calculated based upon 

$6,000 per month.

Trial Court Opinion, 5/11/23, at 2-3, 10-11 (citations and footnote omitted). 

After the verdict, Aria Health filed a timely motion for post-trial relief, 

arguing that the evidence presented at trial failed to establish a prima facie 

case of negligence against Aria Health and that the evidence did not support 

the jury’s award of damages. Following filings from both parties, the trial 

court heard oral argument on the motion. Subsequently, on May 11, 2023,

the court issued an order and opinion, granting Aria Health’s request for JNOV, 

entering judgment in favor of Aria Health, and dismissing the matter with 

prejudice.

Porter filed a timely notice of appeal on June 6, 2023. On August 23, 

2023, pursuant to Pa.R.A.P. 1925(a), the trial court gave notice that its May 

11, 2023 opinion sufficiently addresses Porter’s issues on appeal, and did not 

order Porter to file a Rule 1925(b) concise statement of errors complained of 

on appeal. On appeal, Porter raises the following questions for our review:

1. Did the trial court commit legal error and abuse its discretion 

when it granted JNOV in favor of [Aria Health] despite [Aria 

Health] never challenging the sufficiency of [Porter’s] evidence at 

any point prior to the announcement of a unanimous jury verdict 

in her favor?

2. Did the trial court commit legal error and abuse its discretion 

by granting JNOV in favor of [Aria Health] when it failed to view 

[Porter’s] evidence admitted at trial with all favorable inferences 

drawn therefrom, in a light most favorable to her?

3. Did the trial court commit legal error and abuse its discretion 

when it failed to resolve any doubts in favor of [Porter]?
J-A01009-24

- 4 -

4. Did the trial court commit legal error and abuse its discretion 

when it appraised the evidence on how it would have voted had 

the trial court been a member of the jury, rather than on facts as 

they were presented to the jury for their deliberation?

5. Did the trial court commit legal error and abuse its discretion 

when it failed to view the evidence presented by [Porter] as 

meeting her burden of proof? 

Appellant’s Brief, at 4 (unnecessary capitalization omitted). 1

Our standard of review is well-settled:

Appellate review of [an order granting or denying] JNOV is quite 

narrow. We may reverse only in the event the trial court abused 

its discretion or committed an error of law that controlled the 

outcome of the case. Abuse of discretion occurs if the trial court 

renders a judgment that is manifestly unreasonable, arbitrary[,]

or capricious; that fails to apply the law; or that is motivated by 

partiality, prejudice, bias[,] or ill-will.

When reviewing an appeal from the [grant or] denial of a request 

for [JNOV], the appellate court must view the evidence in the light 

most favorable to the verdict-winner and give him or her the 

benefit of every reasonable inference arising therefrom while 

rejecting all unfavorable testimony and inferences. . . . Thus, the 

grant of a [JNOV] should only be entered in a clear case and any 

doubts must be resolved in favor of the verdict-winner. 

Phillips v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014) (original brackets 

omitted). 

Pennsylvania law makes clear that [JNOV] is proper only in clear 

cases where the facts are such that no two reasonable minds could 

____________________________________________

1 Porter has failed to comply with Pa.R.A.P. 2119(a), which states: “The 

argument shall be divided into as many parts as there are questions to be 

argued. . . followed by such discussion and citation of authorities as are 

deemed pertinent.” Although Porter purports to raise five questions on 

appeal, she includes argument for only two, which we understand to argue 

questions one and two. We thus find claims three, four, and five waived for 

failure to properly divide her arguments and failure to develop meaningful 

arguments with citations to relevant legal authority. See Coulter v. 

Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014); Pa.R.A.P. 2119(a).
J-A01009-24

- 5 -

disagree that the verdict was improper. Questions of credibility 

and conflicts in evidence are for the fact-finder to resolve. This 

Court will not substitute its judgment based upon a cold record for 

that of the fact-finder where issues of credibility and weight are 

concerned.

Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 706 (Pa. Super. 

2000) (citation omitted). See also Menkowitz v. Peerless Publ’ns, Inc., 

211 A.3d 797, 804 (Pa. 2019) (“JNOV should only be entered in a clear case 

with any doubts resolved in favor of the verdict winner. . . . [I]t is the trial 

court that has the benefit of an on-the-scene evaluation of the evidence.”) 

(quotation marks and citation omitted). 

A court may enter JNOV on one of two bases. The first is where 

a movant is entitled to judgment as a matter of law because, upon 

reviewing the record and deciding all factual inferences adverse to 

the movant, the law nonetheless requires a verdict in his [or her] 

favor. The second is where the evidence was such that no two 

reasonable minds could disagree that the outcome should have 

been rendered in favor of the movant.

Menkowitz, 211 A.3d at 804 (quotation marks and citations omitted). A trial 

court must conduct its analysis by “consider[ing] all of the evidence admitted 

to decide if there was sufficient competent evidence to sustain the verdict. . . 

. view[ing] this evidence in the light most favorable to the verdict winner[.]” 

Walker v. Drexel Univ., 971 A.2d 521, 523 (Pa. Super. 2009). 

In Porter’s first argument, she contends that Aria Health failed to 

properly preserve the right to request JNOV, and that the trial court committed 

an error of law by considering, and later granting, Aria Health’s request for 

JNOV. See Appellant’s Brief, at 15-19. Porter argues that Aria Health failed 

to either request a binding charge to the jury or move for a directed verdict
J-A01009-24

- 6 -

at the close of evidence, which is necessary to preserve the right to request 

JNOV. See Appellant’s Brief, at 15 (citing Thomas Jefferson Univ. v. 

Wapner, 903 A.2d 565, 570 (Pa. Super. 2006)). We disagree.

We have held that even when an appellant fails to move for a directed 

verdict or otherwise preserve its right to seek JNOV, if “the trial court did not

find waiver and instead addressed the issue. . . ., we decline to find waiver.”

Wag-Myr Woodlands Homeowners Ass’n v. Guiswite, 197 A.3d 1243, 

1250 n.10 (Pa. Super. 2018). See also Bank of Am., N.A. v. Scott, 271 

A.3d 897, 902 n.4 (Pa. Super. 2022) (declining to find waiver where trial court 

did not find waiver of JNOV and addressed issue); Capital Care Corp. v.

Hunt, 847 A.2d 75, 84 (Pa. Super. 2004) (declining to find waiver where party

failed to move for directed verdict, sought JNOV in post-trial motion, and trial

court addressed issue); Soderberg v. Weisel, 687 A.2d 839, 845 (Pa. Super.

1997) (declining to find waiver where trial court had opportunity to correct

errors and determined issues not waived); cf. Thomas Jefferson Univ., 903 

A.2d at 573 (holding Soderberg exception does not apply because trial court 

explicitly found issue was not preserved and trial court opinion not construed 

as opportunity to correct errors). Here, the trial court did not find waiver and

had the opportunity to consider filings from both parties and heard oral 

argument on Aria Health’s post-trial motion. See generally N.T. Post-Trial 

Motion Hearing, 4/20/23, at 4-26; Trial Court Opinion, 5/11/23, at 11-17, 31-

33. Accordingly, we decline to find waiver and Porter’s first argument fails. 

Soderberg, supra.
J-A01009-24

- 7 -

In Porter’s second argument, she asserts that the trial court erred when 

it granted JNOV in favor of Aria Health and failed to view the evidence in the 

light most favorable to Porter. See Appellant’s Brief, at 10. Porter argues 

that, when reviewing a motion for JNOV, the court must consider the evidence 

in a light most favorable to the verdict winner, and she “must be given the 

benefit of every reasonable inference of fact arising therefrom, and any 

conflict in the evidence must be resolved in her favor.” Id. (citing Moure v. 

Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992)).

Porter argues that the testimony was “sufficient for a jury to conclude 

that the bathroom . . . was constantly maintained” by Aria Health staff, and 

for that reason, Aria Health “was aware or should have been aware of the 

danger that awaited” Porter. Appellant’s Brief, at 13. Porter further states 

that her injury was either caused by faulty maintenance or failure of staff to 

“reasonably inspect the faucet that led to” her injury. Id. However, as Porter 

repeatedly points out in her brief, a cleaning crew would regularly go into the 

bathroom to monitor, inspect, clean, and wipe down the area. Id. at 11-13 

(citing N.T. Trial, 3/6/23, at 62-63, 69, 72-73, 84, 91). 

In response, Aria Health argues that there was no evidence that the 

hospital created a dangerous condition, no evidence that the hospital had 

actual or constructive notice of a defect or dangerous condition, and that 

Porter attempted to argue strict liability, which is not the applicable standard 

in the instant case. Aria Health argues that Porter never established what 

portion of the sink “failed” and therefore could not establish how the failure 
J-A01009-24

- 8 -

and Porter’s injury occurred. See Appellee’s Brief, at 13. In response to 

Porter’s suggestion that there was faulty maintenance by Aria Health staff, 

Aria Health argues that there was no evidence to support this theory, and, 

rather, the testimony was the opposite: that the bathroom was regularly 

maintained, cleaned, and wiped down. Id. at 14. 

Aria Health further argues that Porter failed to put forth any evidence 

that the hospital had actual or constructive notice because Porter could not 

establish a defect or dangerous condition. Id. at 15. There was no evidence 

presented at trial as to when the “dangerous condition” of the sink existed, 

which was bolstered by Porter’s own testimony that she did not see or notice 

any issue with the sink before she used it. Id. at 16 (citing N.T. Trial, 3/6/23, 

at 43-44). Aria Health also points out that Porter did not question the 

hospital’s facilities manager on cross-examination, during which she could 

have attempted to lay the foundation for an argument that the hospital had 

notice of the dangerous condition. Id. at 18.

In a premises liability case, a plaintiff must prove the following: “(1) 

the defendant owed the plaintiff a duty or obligation recognized by law; (2) 

the defendant breached that duty; (3) a causal connection existed between 

the defendant’s conduct and the resulting injury; and (4) actual damages 

occurred.” Grove v. Port Auth. of Allegheny Cnty., 218 A.3d 877, 889 (Pa. 

2019) (internal quotation marks and citation omitted). The nature of the duty 

is premised on the relationship between the parties at the time of the injury, 
J-A01009-24

- 9 -

which, in this case, was that of proprietor and business invitee. As this Court 

has explained, a party is subject to liability only if:

he knows of or reasonably should have known of the condition and 

the condition involves an unreasonable risk of harm, he should 

expect that the invitee will not realize it or will fail to protect 

themselves against it, and the party fails to exercise reasonable 

care to protect the invitees against the danger.

An invitee must prove either the proprietor of the land had a hand 

in creating the harmful condition, or he had actual or constructive 

notice of such condition.

Estate of Swift by Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 723 (Pa. 

Super. 1997) (citations omitted). 

The trial court provided the following detailed analysis with respect to 

the issue of notice:

In this case, [Porter] attempted to evade the factually proved 

issue of notice in two ways[:] first [Porter] appeared to suggest 

that the jury could presume notice based upon the hospital routine 

of cleaning and inspecting its restrooms (i.e., if the hospital had 

done a proper job it “should have” noticed the defect)[; second,]

[Porter] argued a somehow sinister negative [inference from the 

fact] that [Aria Health] had not produced photos of the faucet, 

which meant that the jury could penalize [Aria Health] by 

assuming that the photographs would show a defect of which [Aria 

Health] “would have” had knowledge. Neither of these arguments 

would appear to “measure up” to the requirement of proof of

notice, even if the matter is merely “constructive” notice.

An invitee can satisfy its burden of proving that a proprietor knew 

or, in the exercise of reasonable care, should have known of the 

harmful condition, by establishing that the proprietor had 

constructive notice of the harmful condition. What constitutes 

constructive notice of a harmful condition depends on the 

circumstances of each case, but one of the most important factors 

to be taken into consideration is the time elapsing between the 

origin of the defect or hazardous condition and the accident, and 

the relative durability of the defect comprises a related factor.
J-A01009-24

- 10 -

Neve v. Insalaco’s, [] 771 A.2d 786[, 791 (Pa. Super. 2001).] 

[] The duration of the hazard is important because if a hazard 

only existed for a very short period before causing any injury, then

the possessor of the land, even by the exercise of reasonable care, 

would not discover the hazard, and thus would owe no duty to 

protect invitees from such a hazard. [Id.; see also Restatement 

(Second) of Torts § 343.]

Thus, a defendant is chargeable with constructive notice if the 

defective condition existed for such a period that[,] in the normal 

course of events, the condition would have come to the 

possessor’s attention. Green v. Prise, [] 170 A.2d 318[, 320 (Pa. 

1961)]. Some of the factors affecting the question, in addition to 

the time elapsing between the origin of the defect and the 

accident, are the size and physical condition of the premises, the 

need for inspection, the nature of the business conducted thereon, 

the number of persons using the premises and the frequency of 

such use, the nature of the defect and its location on the premises, 

as well as its probable cause, and the opportunity that the 

defendant, as a reasonably prudent person, had to remove it. [] 

Davanti v. Hummell, [] 185 A.2d 554[, 556-57 (Pa. 1962)]; 

Stais v. Sears[-]Roebuck & Co., [] 102 A.2d 204[, 206 (Pa. 

Super. 1954)].

Holding the record in this case up to the necessary standard of 

proof laid out in [Estate of Swift, supra], the evidence does not 

show how the sink malfunctioned or what caused it [to do so]. 

The evidence certainly did not establish either through the 

testimony of Andrews or [Timothy] Mang[, the hospital facilities 

manager,] that [Aria Health] had previously had complaints about 

this sink or had repaired the faucet in any way, or even had a 

problem with any sink in any public restroom in the hospital. It is 

unclear from the trial record or the oral argument on [Aria 

Health’s] Motion for Post-Trial Relief exactly what defect [Porter] 

claims existed other than a “loosened” spigot allegedly “created” 

by wiping it in the process of cleaning. [Porter] did not 

demonstrate how a spigot represented a “hazard” for which [Aria 

Health] could be charged with knowledge. [Porter] attempted to 

impose liability based upon the mere fact that hospital employees 

“cleaned” and thus were in contact with the faucet, presuming to 

suggest that no one else might ever have occasion to touch the 

faucet or [that] there could be no other reason, other than 

cleaning[,] for its failure. However, the record did not show any 

evidence as to how or why the water sprayed on [Porter] and 

whether it was a sink, break, loosening[,] or a pinhole opening or 
J-A01009-24

- 11 -

even how a splash alone (with no water allegedly spilling on the 

floor) would have caused [Porter] to fall down. 

[Porter presented] no evidence to show that the unidentified 

defect was of the type that already existed and would be obvious 

to the ordinary maintenance worker, as opposed to an 

instantaneous failure. Nor was there evidence as to how cleaning 

and wiping could cause the malfunction (only counsel’s argument 

that it “must have”) or how, in the course of cleaning, wiping[,]

or inspecting, the average janitorial worker would have become 

aware of the yet[-]unidentified defect. . . . [W]here the 

evidence adduced requires the jury to resort to 

“conjecture, guess or suspicion,” the determination must 

be made by the court. Lanni v. Pa. R.R. Co., [] 88 A.2d 887, 

889 [(Pa. 1952)] (emphasis added). . . . [T]his is not a case 

where[, for example, Porter] has shown a trail of debris or 

evidence of duration by virtue of rust or cleaning rags that would 

support an inference that would allow the jury to rely upon 

circumstantial evidence of constructive knowledge. 

Without evidence of the precise danger or how that caused the 

water to spray on [Porter], why the defect was such that [Aria 

Health] “should have” known it was there when [Porter] herself

testified that there was no obvious sign of anything wrong with 

the sink or faucet, or how merely cleaning and wiping would cause 

the malfunction of whatever part [Porter] asserts was “loosened,”

linking the incident to a duty on [Aria Health]’s part required pure 

speculation by the jury. [Porter]’s counsel invited the jury to 

make that leap not based upon evidence related to the length of 

time that a hazard existed or proofs that established that it was 

the type of defect that could have been discovered upon 

reasonable inspection or even a hired expert’s conclusion, but

based upon counsel’s argument that the jury could presume 

negligence [from] the mere fact that the incident occurred on 

premises under [Aria Health]’s control. Crawford v. Grocery 

Outlet Bargain Market, 283 A.3d 384[, at *19] (Pa. Super. [July 

20,] 2022) [(Table)2] (“Appellant presented no evidence 

addressing the requirements for proving constructive notice—that 

the defect was of a type with an inherently sustained duration and 

a witness saw the defect immediately before or after the 

accident.”) ([citing] Neve, 771 A.2d at 791) [(cleaned up)]. This 

____________________________________________

2 Pursuant to Pa.R.A.P. 126(b), non-precedential decisions filed after May 1, 

2019, may be cited for their persuasive value.
J-A01009-24

- 12 -

court has a duty to prevent a jury from rendering a verdict based 

upon conjecture, surmise, guess[,] or speculation. Krishack v. 

Milton Hershey School, 145 A.3d 762, 766 (Pa. Super. 2016)[.] 

The mere fact that an accident occurred does not give rise to an 

inference that the injured person was the victim of negligence. 

McDonald v. Aliquippa Hospital, [] 606 A.2d 1218, 1220 ([Pa. 

Super.] 1992). Pennsylvania law places the burden on the plaintiff 

to establish the existence of negligence on the part of the 

defendant. . . . Thus, establishing a breach of a legal duty is a 

condition precedent to a finding of negligence. Shaw v.

Kirschbaum, [] 653 A.2d 12, 15 ([Pa. Super.] 1994). [Porter] 

essentially sidestepped this element of proof when counsel 

advised the jury that [Aria Health] was negligent for “allowing” a 

faucet to spray water on a user. 

Trial Court Opinion, 5/11/23, at 20-24 (some citations omitted) (emphasis 

original).

Viewing the evidence in the light most favorable to Porter, we conclude 

that the trial court did not abuse its discretion when it granted JNOV to Aria 

Health. In addition, the trial court did not err when it found there was 

insufficient evidence to sustain the verdict and no reasonable basis for the 

jurors to have found in favor of Porter. Walker, supra. It is clear that, in 

this case, Porter presented no evidence suggesting that Aria Health knew, 

reasonably should have known, or had actual or constructive notice of the 

dangerous condition of the sink or spigot. Estate of Swift, supra. Therefore, 

Porter failed to establish the necessary prongs of a premises liability case. 

Grove, supra. Accordingly, we affirm the order of the trial court granting 

Aria Health’s motion for JNOV.

Judgment affirmed. 
J-A01009-24

- 13 -

Date: 5/30/2024