J-A20016-16

 2016 PA Super 303

JOHN STAPAS IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GIANT EAGLE, INC., A PENNSYLVANIA 

ENTITY; GIANT EAGLE, INC., T/D/B/A 

GETGO FROM GIANT EAGLE, A

PENNSYLVANIA ENTITY; GIANT EAGLE 

INC., T/D/B/A SOUTHSIDE GETGO, A 

PENNSYLVANIA ENTITY; NADEEN 

MCSHANE, AN INDIVIDUAL; GETGO 

PARTNERS SOUTH, A PENNSYLVANIA 

ENTITY; GETGO PARTNERS SOUTHMARYLAND, LLC, A PENNSYLVANIA 

ENTITY; AND GETGO HOLDINGS, LLP, A 

PENNSYLVANIA ENTITY

Appellants No. 1287 WDA 2015

Appeal from the Judgment Entered July 24, 2015

In the Court of Common Pleas of Allegheny County

Civil Division at No: GD-09-012965

BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.: FILED DECEMBER 23, 2016

In this case that arises from a shooting outside a GetGo convenience 

store, Appellants, Giant Eagle, Inc., a Pennsylvania entity; Giant Eagle, Inc., 

t/d/b/a GetGo from Giant Eagle, a Pennsylvania entity; Giant Eagle Inc., 

t/d/b/a Southside GetGo, a Pennsylvania entity; Nadeen McShane, an 

individual; GetGo Partners South, a Pennsylvania entity; GetGo Partners 

South-Maryland, LLC, a Pennsylvania entity; and GetGo Holdings, LLP, a 
J-A20016-16

- 2 -

Pennsylvania entity (collectively “Giant Eagle”), appeal from the judgment 

entered on July 24, 2015 in the Court of Common Pleas of Allegheny County 

on a jury verdict returned in favor of Appellee, John Stapas (“Stapas”). For 

the reasons that follow, we vacate the judgment entered in the court below 

and remand for a new trial limited to damages.

In its opinion filed on November 2, 2015, the trial court provided the 

following procedural history:

[Stapas] filed negligence claims against [Giant Eagle] seeking 

damages for injuries Stapas sustained on July 18, 2007 when 

Stapas was shot multiple times outside of the GetGo 

convenience store located at 117 S. 18th Street in the Southside 

of Pittsburgh. Stapas was shot by another patron, Brandon 

McCallister (“McCallister”), around 1:30 a.m. after the two males 

engaged in a verbal and physical altercation which began inside 

the GetGo store and carried outside into the parking lot.

Stapas commenced this action by filing a civil complaint on or 

about November 10, 2009[1]alleging negligence claims against 

Giant Eagle and seeking damages for pain and suffering, 

permanent disability and impairment of earning capacity, 

diminution of the ability to enjoy life’s pleasure, and present and 

future medical expenses and income loss. There was a five (5) 

day jury trial which commenced on November 10, 2014 and 

ended on November 17, 2014. 

On November 17, 2014, the jury empaneled in this case 

returned a verdict finding Giant Eagle 73% negligent and Stapas 

27% negligent and awarded Stapas damages totaling 

____________________________________________

1 Suit was initiated by writ of summons filed on July 16, 2009, within two 

years of the incident giving rise to this action. Regardless, because Stapas 

was born on February 1, 1990, the statute of limitations for filing his 

negligence action was tolled until February 1, 2008, giving him until 

February 1, 2010 to file his suit. 42 Pa.C.S.A. § 5533(b)(1). 
J-A20016-16

- 3 -

$2,086,000. This [c]ourt entered a verdict in favor of Stapas 

and against Giant Eagle in the amount of $1,522,780 as molded 

pursuant to the percentage apportionment of fault directed by 

the jury. Stapas filed a petition for delay damages on November 

26, 2014 pursuant to Pa.R.C.P. 238. On February 25, 2015, this 

[c]ourt entered an Order adding delay damages in the amount of 

$279,795.17 to the verdict, for a total award in favor of Stapas 

in the amount of $1,802,575.17.

On November 26, 2014, Giant Eagle filed a timely motion for 

post-trial relief pursuant to Pa.R.C.P. 227.1 seeking a new trial 

and/or [JNOV] and/or a remittitur. This [c]ourt never ruled on 

Giant Eagle’s motion for post-trial relief because oral argument 

on Giant Eagle’s motion was continued generally pending receipt 

of a complete trial transcript. The complete transcript of 

proceedings was not filed in this case until July 20, 2015, more 

than eight (8) months after completion of the trial. On July 24, 

2015, after receipt of the complete trial transcript, Stapas filed a 

praecipe to enter judgment in the amount of $1,802,575.17 

representing the molded verdict plus delay damages.[2] On 

August 21, 2015, Giant Eagle filed a Notice of Appeal to the 

Superior Court.[3]

Trial Court Opinion, 11/2/15, at 1-2 (unnumbered). The trial court also 

provided the following factual background:

Stapas was seventeen (17) years old on the date of the incident 

and was employed as a busboy and dishwasher [at a Southside 

restaurant, working 40 hours a week and earning] $8.25 per 

hour plus approximately $14 to $20 per night in tips. He also 

____________________________________________

2 More than 120 days elapsed between November 26, 2014 when Giant 

Eagle filed its motion and July 24, 2015 when judgment was entered on the 

verdict. Therefore, the post-trial motion was denied by operation of law. 

See Pa. R.C.P. 227.4; Morningstar v. Hoban, 819 A.2d 1191, 1195-96 

(Pa. Super. 2003) (citations omitted). 

3 The trial court did not order Giant Eagle to file a Pa.R.A.P. 1925(b) concise 

statement of matters complained of on appeal. 
J-A20016-16

- 4 -

periodically cleaned the grills at [the restaurant] in the early 

mornings prior to his shift to earn some extra money. 

Prior to the shooting, Stapas would frequently go to the GetGo in 

Southside after his shift[.] Stapas became casual friends with 

two of the night shift clerks, Crystal Stogden and LaToya 

Stevens, over a period of approximately one (1) month prior to 

the shooting.

Stapas worked [on July 17, 2007 until around midnight, spent 

time with a friend who was waiting for a bus, and] then walked 

to the GetGo around 1:25 a.m. on July 18, 2007. Stapas 

entered the store at 1:26 a.m. and sat and talked to Ms. 

Stogden while she was making sandwiches behind the counter.[4]

At 1:27 a.m. an unidentified young man entered the store and 

purchased a few items from Ms. Stogden. After paying for the 

items, the unidentified young man held the door open for Mr. 

McCallister to enter the GetGo. McCallister had previously been 

banned from the GetGo store.[5]

Upon entering the GetGo, McCallister began arguing with Ms. 

Stogden about being banned from the store. Stapas testified 

that he had nothing to do with the argument and that he had no 

prior issues with McCallister. McCallister exhibited signs of 

intoxication. Stapas stepped toward McCallister in an effort to 

calm the situation. He said he was concerned about trying to 

protect the female workers from McCallister. Ms. Stogden also 

walked around the counter and told McCallister to leave the store 

and escorted him out the door.

Stapas followed McCallister outside where the situation 

escalated. Although Giant Eagle has a policy that employees 

should remain in the store in this type of situation, both workers 

____________________________________________

4 The transcript reflects that Stapas walked over to the far side of the 

counter and stood while talking with Ms. Stogden. Notes of Testimony 

(“N.T.”), Trial, 11/10/14, at 167-71. 

5 McCallister was banned from the store for pulling away from a gas pump 

with the nozzle still attached. As of the date of the incident, the gas pumps 

had been removed from the store. N.T., 11/10/14, at 210, 249-50.
J-A20016-16

- 5 -

came outside causing the situation to escalate. McCallister was 

screaming obscenities at the female workers as they continued 

to argue with each other. Stapas tried to separate McCallister 

and the female workers and to calm the situation. There were 

no security guards working at the store.

Stapas followed McCallister to his vehicle while the two men 

were arguing and tried to get him to leave. Stapas was 

concerned that he would be attacked by McCallister and the 

other male individual who arrived with McCallister. A physical 

fight ensued between Stapas and McCallister in the parking lot 

which then escalated to McCallister pulling out a gun and 

shooting Stapas four (4) times at approximately 1:30 a.m. 

McCallister had the gun on his person and did not retrieve it 

from his car. 

Stapas was admitted to Mercy Hospital on July 18, 2007 and was 

discharged on August 4, 2007. Stapas returned to work . . . 

about two weeks after he was released from the hospital, 

missing a total of six (6) weeks of work. He continued to work 

various jobs and eventually attended a class on working in the 

natural gas industry and is now employed by Patterson-Drilling 

UTI. 

Stapas has scarring from the bullets themselves, and from the 

surgical procedures necessary to remove the bullets. Stapas 

also experiences daily stomach pain which is aggravated at his 

job and when doing strenuous activity. Stapas is regularly 

concerned about losing his job if he is unable to push through 

the pain. 

Id. at 2-4 (unnumbered) (citations to trial transcripts omitted). Our review 

of the record confirms that the trial court has fairly summarized the 

procedural history and factual background.

Giant Eagle presents five issues for this Court’s consideration:

I. Whether Giant Eagle properly preserved its right to seek a 

new trial based on the jury’s evident partiality against 

Giant Eagle and violation of their oaths when they awarded 

$1.3 million for future wage loss that Stapas conceded he 

was not entitled to recover?
J-A20016-16

- 6 -

II. Whether the jury’s evident partiality and violation of their 

oaths when they awarded $1.3 million for indisputable 

non-existent future wage loss undermines the entire 

verdict warranting a new trial for Giant Eagle?

III. Whether Giant Eagle also is entitled to a new trial because 

the trial court informed the jury that they must consider 

Stapas a business invitee to whom the highest duty of care 

is owed despite ample evidence in the record permitting 

the jury to find that Stapas was a mere licensee?

IV. Whether the [t]rial [c]ourt erred in refusing to grant Giant 

Eagle a mistrial after the jury heard improper evidence 

regarding (a) Giant Eagle’s subsequent remedial 

measures; (b) Stapas’ alleged lack of health insurance; 

and (c) Stapas’ use of a demonstrative exhibit that 

contained unsupported references to “sexual gestures” 

allegedly made by the shooter to a Giant Eagle employee 

before the incident?

V. Whether Giant Eagle is entitled to JNOV based on Stapas’ 

assumption of the risk of harm resulting from voluntarily 

leaving the safety of the store to pursue his attacker 

which, in turn, led to his participation in a fight that he 

escalated by throwing the first punch?

Appellant’s Brief at 5. 

As reflected in the issues as presented, Giant Eagle contends the trial

court improperly denied its request for a new trial. This Court has 

recognized: 

[T]he standard of review of the denial of a motion for a new trial

is not different than the grant of a new trial. Livelsberger v. 

Kreider, 743 A.2d 494 (Pa. Super. 1999).

Our standard of review in denying a motion for a new trial

is to decide whether the trial court committed an error of 

law which controlled the outcome of the case or committed 

an abuse of discretion. A new trial will be granted on the 

grounds that the verdict is against the weight of the 
J-A20016-16

- 7 -

evidence where the verdict is so contrary to the evidence it 

shocks one’s sense of justice. An appellant is not entitled 

to a new trial where the evidence is conflicting and the 

finder of fact could have decided either way. 

Cangemi ex rel. Estate of Cangemi v. Cone, 774 A.2d 1262, 1265 (Pa. 

Super. 2001) (citations omitted). Further, “[i]f the verdict bears a 

reasonable resemblance to the proven damages, it is not the function of the 

court to substitute its judgment for the jury’s.” Rettger v. UPMC 

Shadyside, 991 A.2d 915, 934 (Pa. Super. 2010) (quoting Kiser v. 

Schulte, 648 A.2d 1, 4 (Pa. 1994)). “Nevertheless, where the jury’s verdict 

is so contrary to the evidence as to ‘shock one’s sense of justice’ a new trial 

should be awarded.” Id. (quotations omitted).

In Rettger, this Court reiterated that “[w]hen faced with . . . 

uncontroverted evidence, a jury’s verdict must bear a reasonable 

resemblance to the proven damages.” Id. (quoting Kiser, 648 A.2d at 6). 

Moreover, as our Supreme Court recognized in Carroll v. Avallone, 939 

A.2d 872 (Pa. 2007):

The concept of Kiser, that the verdict must bear a relation to 

the evidence, is in tension with the notion that a jury may reject 

any evidence offered, even if uncontroverted; a jury is not 

obliged to believe or disbelieve any evidence presented at trial, 

including an expert’s opinion. However, a jury’s verdict cannot 

be based on whim or caprice, hence the holding in Kiser.

Thus, if there is no argument or opposition on a particular point, 

the jury may not be free to disregard such information.

Id. at 875. 
J-A20016-16

- 8 -

Because Giant Eagle’s first two issues are interrelated, we shall 

address them together. Giant Eagle asserts that it preserved its right to 

seek a new trial in its post-trial motion. Giant Eagle further contends it is 

entitled to a new trial because the jury’s award of $1,300,000 for future 

wage loss was completely unsupported by the record and undermined the 

entire verdict. 

In his closing argument to the jury, counsel for Giant Eagle addressed 

the issue of wage loss, stating:

[If you get to the point that you are considering damages,] Giant 

Eagle would . . . be responsible for whatever wage loss [Stapas] 

suffered as a result of this, and you heard that he missed 

approximately six weeks of work and he was making eight to ten 

dollars an hour at that point in time, and if the math is correct, 

somewhere between $2,500 and $3,000 which Giant Eagle 

would say it is responsible for at that point in time.

N.T., 11/17/14, at 804. At the conclusion of Giant Eagle’s closing argument, 

Stapas’ counsel addressed the jury. With respect to lost wages, counsel 

explained:

[T]o be quite frank with you, the Judge will give you the 

numbers, but the damage – the easy parts of this are the wages 

and the past and future medical. You know, the wages are –

and I find this difficult to believe, but this kid crawled out of that 

bed and went back to the job at [the restaurant] to wash dishes 

six weeks after this shooting. Okay. I think that speaks the 

world of this kid, because we all know people, especially with 

litigation involved, that would have laid on the couch till this day 

and probably would be coming to you people and asking you for 

a lifetime of wages. 

I don’t know whether this kid’s going to [be] able to keep doing 

this job. I know with a tenth-grade education he’s going to have 

a hard time finding a job that pays him the twenty-five dollars 
J-A20016-16

- 9 -

an hour he’s making now.[6] But, folks, that is dirty, laborious 

work. And his stomach is not holding up well. Okay. And 

whether or not he can put up with this long enough, I don’t 

know. But he’s not sitting here asking you for, you know, 6 –

700,000 in wages for the rest of his life, because he’s going to 

fight through this. 

I just hope he’s right. And we spent a lot of time on this, but he 

better be right, because if he goes down because of his stomach 

and he can’t go up and do a job that involves his hands, he’s 

going to be in more trouble than he is now. But that’s a decision 

we made. And the Judge will give you the numbers of the past 

and present wage loss. It’s small. It’s six weeks of eight or nine 

dollars an hours, and it’s not much.

Id. at 836.

In its charge to the jury, the trial court instructed, in relevant part:

If you find that [Giant Eagle] is liable to [Stapas], you must then 

find an amount of money damages which you believe will fairly 

and adequately compensate [Stapas] for all the physical and 

financial injuries he has sustained as a result of the incident. 

The amount which you award today must compensate [Stapas] 

completely for damages sustained in the past, as well as damage 

[Stapas] will sustain in the future.

The damages recoverable by [Stapas] in this case and the items 

that go to make them up, each of which I will discuss with you 

separately, are as follows: A, past and future pain and 

suffering; B, embarrassment and humiliation; C, medical 

expenses; D, loss of the enjoyment and pleasure of life; and E, 

disfigurement.

In the event you find in favor of [Stapas], you will add these 

sums of damage together and return your verdict in a single 

lump sum.

____________________________________________

6 Stapas testified that he ultimately received his GED. N.T., 11/10/14, at 

86.
J-A20016-16

- 10 -

Id. at 848. For reasons not apparent from the record, the trial court 

instructed the jury on past and future medical expenses but did not mention 

wage loss. Id. at 848-50.

The jury was presented a verdict slip and was asked to answer six 

interrogatories, i.e., was Giant Eagle negligent; was Giant Eagle’s negligence 

a factual cause of harm to Stapas; was Stapas negligent; was Stapas’ 

negligence a factual cause of harm; what percentage of causal negligence is 

attributable to each party; and what damages did Stapas sustain? 

In the sixth interrogatory on the verdict slip, the jury was asked to:

State the amount of damages, if any, sustained by the Plaintiff 

as a result of the accident (occurrence), without regard to and 

without reduction by the percentage of causal negligence, if any, 

that you have attributed to the Plaintiff, including the items 

listed below. In the event that you find in favor of Plaintiff, you 

will add the sums of damage together and return your verdict in 

a single, lump sum. 

Jury Verdict Form, Question 6.

Listed below the instructions for Question 6 were five categories of 

damages followed by the word “Total” and a line for the total amount of 

damages awarded. The jury completed the form and, despite the fact the 

only line provided for a number appeared next to the word “Total,” 

handwrote information (appearing below in bolded italics) next to the 

damages categories as follows:

a. Scarring liposuction $3000

b. Wage loss past $3000, future $1,300,000
J-A20016-16

- 11 -

c. Past and future medical expenses past $30,000 future 0

d. Past, present and future pain and suffering $500,000

e. loss of life’s pleasures $250,000

Total: $2,086,000_

Id. 

When the jury returned with its verdict, the tipstaff read from the 

verdict slip. When the tipstaff came to question six, the following exchange 

took place:

TIPSTAFF: Question No. 6. Should I read the whole - -

THE COURT: Yes.

TIPSTAFF: Scarring: Liposuction, 3,000. Wage loss: Past: 

3,000.

THE COURT: Just read the lump sum.

TIPSTAFF: Okay. 3,000, and future: 1,300,000. Past and 

future medical expenses: 30,000 past. Future, zero. Past, 

present and future pain and suffering: 500,000.

THE COURT: Just the total.

TIPSTAFF: Total? I’m sorry. $2,086,000. Signed by the jury 

foreman.

THE COURT: Any questions?

[COUNSEL FOR GIANT EAGLE]: Poll the jury, please?

THE COURT: Poll the jury. When your number’s called, please 

stand up.

N.T., 11/17/14, at 863. The tipstaff polled the jurors and each juror 

indicated the verdict was his or hers. When the trial court asked if there 
J-A20016-16

- 12 -

were any questions, counsel for Giant Eagle responded, “None.” Id. at 864. 

The trial court directed some closing remarks to the jury, thanked them, and 

dismissed them. Id. at 865-66. 

In its first issue, Giant Eagle contends it properly preserved its right to 

seek a new trial based on the jury’s partiality, evidenced by its lost wages 

award. In its November 2, 2015 opinion, the trial court determined the 

issue was waived for failure to raise it prior to dismissal of the jury. Trial 

Court Opinion, 11/2/15, at 5. The trial court explained:

[T]his case was submitted to the jury for a general verdict. 

The jury verdict slip was drafted by and agreed to by counsel for 

all parties, including counsel for Giant Eagle. The verdict sheet 

jointly submitted by the parties was given to the jury without 

objection by any party’s counsel, including counsel for Giant 

Eagle. The jury returned a general verdict in favor of Stapas and 

against Giant Eagle in the amount of $2,086,000, which was 

later molded by this [c]ourt pursuant to the percentage 

apportionment of fault directed by the jury. Since Giant Eagle 

agreed to submit this case to a jury for a general verdict, it 

cannot itemize and attack certain components of the jury’s 

award. 

[I]n attacking the jury’s award, Giant Eagle relies on 

handwritten notations in the margin of the jury slip as a basis for 

arguing that certain components of the damage award were 

inappropriate. By failing to raise this objection before the jury 

panel was dismissed, however, Giant Eagle waived the issue. 

See Picca v. Kriner, 645 A.2d 868, 871 (Pa. 1994). 

When the jury returned its verdict, counsel for Giant Eagle 

did not assert that the jury’s damage award was improper, did 

not request the jury be sent back for further deliberations on the 

issue, and made no objection of any kind to the verdict. Giant 

Eagle instead polled the jury and the jury was dismissed. If 

counsel for Giant Eagle had raised an objection at the time the 

jury slip was read, this [c]ourt could have asked the jury to 

clarify its verdict, including its handwritten notations in the 
J-A20016-16

- 13 -

margin. Since the jury was dismissed without inquiry, this 

[c]ourt cannot speculate as to what the jury intended, and this 

[c]ourt would have accepted the total damage award as a 

general verdict in favor of Stapas. The jury’s verdict . . . bears a 

reasonable relation to Stapas’ proven damages. Stapas was 

fully compensated for his past medical expenses and lost wages, 

and for past and future pain and suffering as well as scarring and 

loss of life’s pleasures. As such, the jury award should stand. 

Id. at 5-6. 

The trial court categorized the verdict as a “general verdict.” Id. at 5. 

Giant Eagle counters that the verdict was a “special verdict.” Appellant’s 

Brief at 14. In fact, the verdict was a general verdict with special findings. 

As our Supreme Court explained in Fritz v. Wright, 907 A.2d 1083 (Pa. 

2006):

In Pennsylvania, verdicts may be general, special, or general

with special findings.fn See Fulforth v. Prudential Ins. Co. of 

Amer., 147 Pa. Super. 516, 24 A.2d 749 (1942). A general

verdict is a finding by the jury in terms of the issue or issues 

referred to them and is, either wholly or in part, for the plaintiff 

or for the defendant. Id. at 753; see also Black’s Law 

Dictionary (8th ed. 2004) (defining general verdict as a verdict

“by which the jury finds in favor of one party or the other”). 

Thus, when a trial judge requires only a general verdict slip, a 

jury will be call upon only to find “for plaintiff in the amount of 

. . .” or “for defendant.” No other substance will appear on the 

general verdict slip.

In contrast, when the trial court exercises its discretion to 

employ a general verdict with special findings . . . , the analytical 

subparts of the jury’s process will be set forth in individual 

questions to be answered by the jury, and the answers thereto 

are always given in connection with the ultimate general verdict.

See Fulforth, 24 A.2d at 753[.] . . . [S]hould the jury arrive at 

the last question, the slip's “bottom line” looks akin to the 

general verdict slip in that the amount of damages awarded to 

the plaintiff are specified.
J-A20016-16

- 14 -

fn A special verdict, which is not implicated in this case, is one in which 

the jury finds all material facts in the case, leaving the ultimate 

decision of the case on those facts to the court. See . . . Fulforth, 24 

A.2d at 753[.] 

Id. at 1091-92 (some internal citations and footnote omitted). Further, 

“when special findings are employed in connection with a general verdict, 

the jury’s decision is the general verdict, not the answers to the individual 

interrogatories[.]” Id. at 1092. “[I]n the usual case where special findings 

are consistent with the general verdict, the special findings are considered 

merely advisory.” Id. (citation omitted) (emphasis added). 

Here, the jury was directed to provide one lump sum indicating the 

total damages awarded to Stapas. However, the jury instead assigned an 

award of damages to each category listed on the verdict slip and took the 

liberty of awarding $1.3 million for lost wages despite Stapas’ concession 

that he was not seeking damages for future lost wages and despite a 

complete lack of evidence to support such an award. 

The trial court suggested that if counsel had objected when the verdict 

slip was read, the court “could have asked the jury to clarify its verdict, 

including its handwritten notations in the margin.” Trial Court Opinion, 

11/2/15, at 5. Because the jury was dismissed without inquiry into the 

notations on the verdict slip, the trial court determined the issue was 

waived. Id. The trial court explained it could not “speculate as to what the 

jury intended; and this [c]ourt would have accepted the total damage award 

as a general verdict in favor of Stapas.” Id. 
J-A20016-16

- 15 -

The trial court cites Picca v. Kriner, 645 A.2d 868, 871 (Pa. 1994), as 

authority for concluding Giant Eagle’s issue was waived for lack of objection 

before the jury was dismissed. As our Supreme Court noted in Criswell v. 

King, 834 A.2d 505 (Pa. 2003), Picca held that a plaintiff who fails to object 

to an ambiguous or flawed jury verdict before the jury is dismissed waives 

the right to challenge the verdict in post-trial motions. Id. at 508. The 

Supreme Court expressed its agreement with post-Picca decisions rendered 

by this Court7recognizing “that a claim challenging the weight of evidence is 

not the type of claim that must be raised before the jury is discharged. 

Rather, it is a claim which, by definition, ripens only after the verdict, and it 

is properly preserved so long as it is raised in post-verdict motions.” Id. at 

512. The Court concluded:

We reaffirm that which was recognized in [City of Philadelphia, 

Police Dept. v. Gray, 633 A.2d 1090 (Pa. 1993)], i.e., that an 

inconsistent verdict provides grounds for objection and, if a party 

seeks relief upon grounds of verdict inconsistency, it must 

forward a timely, contemporaneous objection upon the rendering 

of the verdict. But a claim of verdict inconsistency is not the 

same complaint as a claim sounding in evidentiary weight. A 

____________________________________________

7

Id. at 511 (citing, inter alia, Hobbs v. Ryce, 769 A.2d 469, 472 n. 3 (Pa. 

Super. 2001); King v. Pulaski, 710 A.2d 1200, 1204 (Pa. Super. 1998); 

Lewis v. Evans, 690 A.2d 291, 293 (Pa. Super. 1997); Rozanc v. Urbany, 

664 A.2d 619, 621-222 (Pa. Super. 1995) (Picca waiver rule inapplicable 

where post-trial claim is not that the jury verdict was ambiguous or flawed, 

but rather, that it was “contrary to the evidence admitted at trial”) (posttrial motion alone is sufficient to preserve a claim that the verdict is against 

the weight of the evidence where the verdict is not inconsistent or 

ambiguous and/or where an objection and instruction to the jury would not 

have eliminated the need for a new trial)).
J-A20016-16

- 16 -

verdict may be perfectly consistent and yet be a shock to the 

losing party, as well as a shock to the conscience of the jurist 

who oversaw the presentation of evidence. Verdict-related 

claims arising from perceived evidentiary weight cannot be 

addressed and averted by resubmission to the same jury. Since 

the complaint cannot be redressed by the jury, there is no 

reason, under the principles animating [Dilliplaine v. Lehigh 

Valley Trust Co., 322 A.2d 114 (Pa. 1974)] and its progeny, to 

require an objection before the jury is discharged. Nor should a 

party be forced to litigate a claim of verdict inconsistency when 

in fact its true complaint sounds in evidentiary weight.

Id. at 513. As in Criswell, Giant Eagle did not assert that the jury’s verdict 

was inconsistent or ambiguous. Rather, Giant Eagle—like Criswell—filed a 

timely post-verdict motion requesting a new trial because the jury’s 

damages award “is not supported by sufficient competent evidence of 

record, is against the weight of the evidence, is arbitrary, excessive and so 

contrary to the evidence as to shock one’s sense of justice, and no two 

reasonable minds could fail to agree that the award of future wage loss was 

improper.” Giant Eagle’s Motion for Post-Trial Relief, 11/26/14, at 1. “Since 

this request was, by definition, one which ripens only at the post-verdict 

stage, . . . it was properly forwarded for the first time in a timely-filed posttrial motion. See Pa. R.C.P. 227.1(b).” Crisswell, 834 A.2d at 513. We 

find that Giant Eagle properly preserved its right to seek a new trial by filing 

a timely post-trial motion contending the verdict was against the weight of 

the evidence and shocked one’s sense of justice.

The trial court suggests that the verdict “bears a reasonable relation to 

Stapas’ proven damages.” Trial Court Opinion, 11/2/15, at 6. We cannot 
J-A20016-16

- 17 -

agree. It is not lost on us that had the jury followed the trial court’s 

instructions and returned a single sum verdict, we would not be able to 

discern whether the jury awarded any part of that sum for future lost wages. 

However, that is not the case. As reflected on the record, the jury clearly 

allocated $1,300,000 for future lost wages that were unsupported by the 

evidence and were specifically disclaimed by Stapas’ counsel. Although Lady 

Justice is blindfolded, we will not don blinders to pretend the jury was within 

its rights to award damages that were neither sought nor proven. Again, 

our Supreme Court instructed that “where special findings are consistent 

with the general verdict, the special findings are considered merely 

advisory.” Fritz, 907 A.2d at 1092. Here, unwittingly or not, the jury 

provided special findings that revealed the special finding awarding future

lost wages was unsupported by the evidence presented at trial and, 

therefore, inconsistent with the general verdict. Under these circumstances, 

the special findings compel us to conclude that the verdict was against the 

weight of the evidence and that the trial court abused its discretion by not 

granting Giant Eagle a new trial. See Kiser, 648 A.2d at 3-4. Therefore, 

because Giant Eagle preserved its challenge to the weight of the evidence in 

its post-trial motion and because the award of future lost wages was 

completely unsupported by the evidence, we vacate the judgment entered 

on the verdict and award a new trial.
J-A20016-16

- 18 -

Having determined that the judgment must be vacated, we next 

consider whether Giant Eagle is entitled to a new trial generally or one 

limited to the issue of damages. Our Supreme Court has explained: 

The granting of a new trial limited to damages was not permitted 

under the common law. However, Pennsylvania and most other 

jurisdictions have adopted a rule permitting such limited new

trials under certain specific circumstances. A new trial limited to 

the issue of damages will be granted where: (1) the issue of 

damages is not intertwined with the issue of liability; and (2) 

where the issue of liability has been fairly determined or is free 

from doubt.

Kiser, 648 A.2d at 7-8 (citations and quotation marks omitted). 

In Banohashim v. R.S. Enterprises, LLC, 77 A.3d 14 (Pa. Super. 

2014), this Court noted:

We have held that liability is “fairly determined” when “the court 

is convinced upon a review of the whole case that the jury [has] 

settled the issue as to responsibility fairly and upon sufficient 

evidence—so that dissociated from the other questions it ought 

to stand as the final adjudication of the rights of the parties.” 

Lambert v. PBI Indus., 244 Pa. Super. 118, 366 A.2d 944, 

956–957 (1976) (en banc) (quoting 58 Am.Jur.2d New Trial, 

§ 27 (1971)).

Id. at 23 (brackets omitted). Therefore, while we are charged with 

reviewing the entire case, we shall specifically address Giant Eagle’s 

remaining issues as part of that review and shall do so in the context of 

determining whether Giant Eagle’s liability has been “fairly determined.”

In its third issue, Giant Eagle contends the trial court erred as a matter 

of law by instructing the jury that Stapas was a business invitee. Giant 

Eagle contends there was sufficient evidence to support a finding that Stapas 
J-A20016-16

- 19 -

was a licensee to whom Giant Eagle owed a lesser duty of care. As this 

Court has recognized:

It is well-settled that “[t]he duty of a possessor of land toward a 

third party entering the land depends upon whether the entrant 

is a trespasser, licensee, or invitee.” Updyke v. BP Oil Co., 717 

A.2d 546, 549 (Pa. Super. 1998) (citation omitted). Generally, 

the determination of an entrant’s legal classification is one of 

fact for the jury. Palange v. City of Philadelphia, Law Dept., 

433 Pa. Super. 373, 640 A.2d 1305, 1307 (1994), appeal 

denied, Palange v. Priori’s Bar & Restaurant, 542 Pa. 649, 

666 A.2d 1057 (1995). “Where the evidence is insufficient to 

support an issue, however, it may be appropriate for the court to 

remove that issue from the jury.” Id. (citation omitted).

Cresswell v. End, 831 A.2d 673, 675 (Pa. Super. 2003) (footnote omitted). 

Further:

The distinction between invitation and permission forms the 

basis for distinguishing an invitee from a licensee.

Although invitation does not in itself establish the status of 

an invitee, it is essential to it. An invitation differs from 

mere permission in this: an invitation is conduct which 

justifies others in believing that the possessor desires

them to enter the land; permission is conduct justifying 

others in believing that the possessor is willing that they 

shall enter if they so desire.

Restatement (Second) of Torts § 332 cmt. b (1965) (cited with 

approval in Palange, 640 A.2d at 1308).

Id. at 676 (emphasis in original). Licensees include three types of persons:

1. One whose presence upon the land is solely for his own 

purposes, in which the possessor has no interest, and to 

whom the privilege of entering is extended as a mere 

personal favor to the individual, whether by express or tacit 

consent or as a matter of general or local custom.
J-A20016-16

- 20 -

2. The members of the possessor's household, except boarders 

or paying guests and servants, who, as stated in § 332, 

Comments i and j, are invitees.

3. Social guests. . . .

Restatement (Second) of Torts § 330 cmt h (1965).

Giant Eagle argues that the record is “replete with evidence the jury 

should have been permitted to consider to determine whether Stapas was a 

licensee.” Appellants’ Brief at 26. In support of its position, Giant Eagle 

suggests that Stapas was a licensee who visited the GetGo to socialize with 

the store clerks. Giant Eagle contends Stapas had a romantic interest in one 

of the clerks and his conduct immediately preceding the shooting consisted 

solely of conversing with a clerk rather than making a purchase. Giant Eagle 

also claims support in the surveillance video footage from the minutes 

before the shooting that shows Stapas leaning on the counter talking with 

the clerk while she was working. Id. 

The cited instances are not reflective of the testimony generally and, 

in fact, they skew it. Stapas acknowledged he had been to GetGo many 

times before the night of the shooting and “would go talk with [the clerks], 

get my stuff, my pop and cigarettes.” N.T. Trial, 11/10/14, at 169 

(emphasis added). When asked if he would sometimes “go and hang out 

and just talk to them,” Stapas responded, “Yeah.” Id. However, on the 

night of the shooting, he “was there to shop. I stopped and talked before 

I bought anything.” Id. at 185 (emphasis added). He never got to the point 
J-A20016-16

- 21 -

of buying anything on the night in question but went there with that intent. 

Id. at 192. Based on the surveillance video, Stapas was in the GetGo for 

only two minutes before McCallister entered the store. The shooting 

occurred approximately two minutes later. 

The testimony supports the conclusion that Stapas was at the GetGo 

on the night of the shooting as an invitee, i.e., as a customer that Giant 

Eagle desired to enter the land for the purpose of buying goods, not as a 

licensee Giant Eagle was willing to permit on the premises if Stapas so 

desired. See Restatement (Second) of Torts § 330 cmt h (1965) and § 332 

cmt b (1965). As the trial court recognized:

Stapas entered the GetGo that night, the same way he had done 

many times before, with the intent of purchasing items. This is 

the very purpose for which the GetGo is held open to the public. 

The fact that Stapas was socializing for a few minutes with the 

night time clerks prior to making a purchase, people he knew by 

virtue of his past visits to the GetGo as a business invitee, does 

not change his status. There is simply no evidence of record 

that would support a finding that Stapas was anything but a 

business invitee and, thus, this [c]ourt properly refused to 

instruct the jury on the duty owed to a licensee.

Trial Court Opinion, 11/2/14, at 6-7.

We find no error in the trial court’s determination that Stapas was an 

invitee and for removing that issue from the jury. Again, “[w]here the 

evidence is insufficient to support an issue, [] it may be appropriate for the 

court to remove that issue from the jury.” Palange, 640 A.2d at 1307. In 

Palange, this Court determined that the trial court did not err in charging 

the jury only on the duty owed to a licensee in a slip and fall case where the 
J-A20016-16

- 22 -

appellant used a sidewalk in front of a restaurant for her own purpose and 

the restaurant neither encouraged nor desired such use. Id. at 1309. See 

also Updyke, 717 A.2d at 549-50 (Pa. Super. 1998) (trial court did not err 

charging jury that woman was a public invitee rather than a licensee when 

she entered a combination gas station and convenience store to use a phone 

after her car broke down); Juszczyzyn v. Taiwo, 113 A.3d 853, 856-58 

(Pa. Super. 2015) (trial court did not err in determining police officer was a 

licensee when assaulted by a lounge patron while responding to a 

disturbance call); Cresswell, 831 A.2d at 677 (trial court did not err in 

deciding as a matter of law that meter reader was a licensee when she fell 

on the appellee’s property because meter reader was privileged to enter 

property only by virtue of appellee’s permission and evidence was 

insufficient to support a finding meter reader was an invitee). Giant Eagle’s 

third issue fails. 

In its fourth issue, Giant Eagle asserts the trial court erred by refusing 

to grant its mistrial requests regarding testimony elicited as a result of 

tactics employed by Stapas’ counsel in three subject areas. They include 

subsequent remedial measures, Stapas’ alleged lack of health insurance, and 

a demonstrative exhibit containing unsupported references to “sexual 

gestures” made by the shooter to the GetGo clerks before the shooting. Our 

standard for reviewing a trial court’s denial of a mistrial is abuse of 
J-A20016-16

- 23 -

discretion. Commonwealth v. Lopez, 57 A.3d 74, 83 (Pa. Super. 2012) 

(citation omitted). 

A mistrial is necessary only when the incident upon which the 

motion is based is of such a nature that its unavoidable effect is 

to deprive the defendant of a fair trial by preventing the jury 

from weighing and rendering a true verdict. A mistrial is 

inappropriate where cautionary instructions are sufficient to 

overcome any potential prejudice. 

Id. at 83-84 (citations and quotations omitted). To the extent Giant Eagle 

challenges the trial court’s evidentiary rulings, this Court has recognized: 

[O]ur standard of review of a trial court’s decision to admit or 

exclude evidence is well-settled. When we review a trial court 

ruling on admission of evidence, we must acknowledge that 

decisions on admissibility are within the sound discretion of the 

trial court and will not be overturned absent an abuse of 

discretion or misapplication of law. In addition, for a ruling on 

evidence to constitute reversible error, it must have been 

harmful or prejudicial to the complaining party. An abuse of 

discretion is not merely an error of judgment, but if in reaching a 

conclusion the law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill-will, as shown by the evidence or the 

record, discretion is abused.

Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008) (citation and 

quotations omitted). “A party suffers prejudice when the trial court’s error 

could have affected the verdict.” Schuenemann v. Dreemz, LLC, 34 A.3d 

94, 101 (Pa. Super. 2011) (citation omitted).

The trial court rejected Giant Eagle’s assertions regarding the 

challenged testimony, stating:

While improper remarks or tactics by counsel may sometimes 

warrant granting a new trial, this [c]ourt does not believe the 

tactics utilized by [Stapas’] counsel in this case rise to such 
J-A20016-16

- 24 -

level. When considered in context, the [c]ourt did not find 

counsel[’s] remarks or tactics to be impermissible or beyond the 

scope of legitimate examination. Counsel’s remarks did not 

unduly appeal to the prejudice and sentiments of the jury and, 

even if they did, any possible error was cured when this [c]ourt 

instructed the jury not to allow sympathy or prejudice to play 

any part in their deliberations. The jury charge in this case was 

sufficient, under the circumstances, to cure any possible error.

Trial Court Opinion, 11/2/14, at 8. We agree with the trial court’s 

conclusions that the testimony, evidence, and “tactics” in question did not 

warrant a new trial and were not harmful or prejudicial to Giant Eagle. 

Specifically, Giant Eagle’s first two claims regarding subsequent 

remedial measures relate to an acknowledgement that Giant Eagle placed a 

security guard in the store and created a safety committee after the 

incident. Pennsylvania Rule of Evidence 407 (Subsequent Remedial 

Measures) provides:

When, after an event, measures are taken by a party that would 

have made an earlier injury or harm less likely to occur, 

evidence of the subsequent measure is not admissible against 

that party to prove: 

. negligence; 

.

culpable conduct; 

.

a defect in a product of its design; or

. a need for a warning or instruction. 

But the court may admit this evidence for another purpose such 

as impeachment or – if disputed – providing ownership, control, 

or the feasibility of the precautionary measure. 

Pa.R.E. 407.
J-A20016-16

- 25 -

With regard to placing a security guard in the store, it is important to 

note that Giant Eagle’s counsel objected to the question. At a sidebar 

discussion, the trial court sustained the objection and granted Giant Eagle’s 

motion to strike. See N.T., 11/10/14, at 223-24. Giant Eagle did not 

further request an instruction for the jury to disregard the question and no 

instruction was given. We find neither abuse of discretion nor error of law 

with respect to the trial court’s ruling. 

Regarding the formation of a safety committee, the exchange in 

question took place on direct examination by Stapas’ counsel of a GetGo 

supervisor called as a plaintiff’s witness as follows:

QUESTION: Unrelated to this accident, you developed a safety 

committee later on in the years. Is that fair?

ANSWER: Yes.

QUESTION: That didn’t exist in ’07?

ANSWER: They always had safety newsletters. I don’t know 

what years they were developed.

QUESTION: I said “safety committee.”

ANSWER: Yeah, that’s part of the - -

Counsel for Giant Eagle: Objection, Your Honor. 

Subsequent.

Stapas’ Counsel: It’s unrelated to this, Judge. They say 

they didn’t do anything.

The Court: (Indicating.)

Stapas’ Counsel: Okay. One moment, Your Honor.
J-A20016-16

- 26 -

N.T., 11/12/14, at 434. 

There was no further questioning about a safety committee and it is 

not even clear whether or not there was a safety committee in 2007. 

Further, as the quoted excerpt reflects, the trial court did not rule on the 

objection raised by Giant Eagle’s counsel and counsel did not move to strike 

or renew his objection before Stapas’ counsel moved on to another subject. 

Nor did Giant Eagle’s counsel request a curative instruction or mistrial 

relating to the issue of a safety committee. Therefore, there is no ruling for 

us to review.8 

The third contested “subsequent remedial measures” issue stems from 

re-direct examination of the Giant Eagle supervisor by Stapas’ counsel. 

Counsel asked what the supervisor did in response to the shooting. Id., 

11/13/14, at 502. The supervisor replied that she trains workers to be calm, 

not follow people into the parking lot, not get loud, and not aggravate a 

situation. Id. at 502-03. When asked if nothing had changed since the 

shooting, counsel for Giant Eagle interjected, “Wait. Let -- ” The trial judge 

instructed, “Answer, ma’am.” Id. at 503. The supervisor gave an answer 

that can best be described as equivocal, stating, “I do what I did now and 

____________________________________________

8 Stapas suggests that the transcript’s reference to the trial court 

“indicating,” might mean that the trial court gestured for counsel “to move 

along.” Appellee’s Brief at 50. We will not speculate as to the meaning of 

“indicating.” However, it is clear that Stapas’ counsel moved on to another 

area of questioning. 
J-A20016-16

- 27 -

then, yes.” Id. The re-direct examination continued and counsel for Giant 

Eagle never registered an objection. Id. at 503-505. In light of the lack of 

objection, no issue was raised before the trial court. Therefore, we will not 

entertain it on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower 

court are waived and cannot be raised for the first time on appeal.”); see 

Agostinelli v. Edwards, 98 A.3d 695, 700 (Pa. Super. 2014). We find no 

basis for relief based on any of Giant Eagle’s remedial measures arguments.9 

Giant Eagle next alleges the trial court erred by denying his request for

a mistrial after Stapas’ counsel elicited evidence regarding Stapas’ lack of 

medical insurance. The only reference to insurance came in response to a 

question on direct examination when Stapas was asked, “After you got out 

of the hospital, you didn’t seek much treatment, did you?” N.T., 11/10/14, 

at 146. Stapas responded that he did not seek much treatment “[b]ecause, 

I mean, by the time I came close, I didn’t have any insurance.” Id. Counsel 

for Giant Eagle objected and the trial court directed the response be 

stricken. During sidebar discussion at the conclusion of direct examination, 

Giant Eagle’s counsel moved for a mistrial. Id. at 155-56. The trial court 

noted that the response had been stricken and discussed the possibility of 

giving an instruction to the jury but did not make a decision at that point, 

noting that “if it would happen to happen again, but hopefully it will not, but 

____________________________________________

9 We note Giant Eagle’s counsel did not request a mistrial in relation to any 

of the subsequent remedial measures issues challenged in this appeal.
J-A20016-16

- 28 -

if it does, that’s another story. Okay.” Id. at 157. Counsel for Giant Eagle 

responded, “Okay.” Id. 

In Gatto v. Kisloff, 649 A.2d 996 (Pa. Super. 1994), this Court 

observed:

The general rule is that evidence of insurance is irrelevant and 

prejudicial and the presentation of such evidence justifies the 

grant of a mistrial. The mere mention of the word “insurance”, 

by itself, however, does not necessitate a new trial. Instead, 

there must be an indication that the party moving for a new trial 

was prejudiced in some way by the mention of the word 

“insurance.” 

Id. at 998-99 (citations omitted).

We agree with Stapas that the prohibition against the mention of 

insurance generally applies to a defendant’s possession of liability insurance. 

See Pa.R.E. 411. We cannot agree with Giant Eagle’s contention that 

Stapas’ alleged inability to pay for medical treatment was prejudicial to Giant 

Eagle. There was no suggestion that Stapas did not receive treatment 

necessary for his recovery and the jury was instructed that Stapas was 

entitled to recover his medical expenses from Giant Eagle if the jury found 

Giant Eagle casually negligent for his injuries. If anything, if Stapas had 

medical insurance, indicating so would have been prejudicial to Stapas, not 

Giant Eagle. However, Stapas testified he had no medical insurance and the 

jury was instructed that he was entitled to recover medical expenses, which 

the jury awarded. Further, Giant Eagle’s counsel acknowledged he was 

agreeable to the trial court’s “wait and see” approach, indicating a curative 
J-A20016-16

- 29 -

instruction could be given if the issue of insurance came up again. It did 

not, and counsel did not request an instruction. To the extent Giant Eagle 

suggests counsel was appealing to the jury’s emotions by soliciting 

information about Stapas’ lack of medical insurance, the trial court 

instructed the jury that it was not to be influenced by anything other than 

the law and the evidence of the case. N.T., 11/17/14, at 861. Accordingly, 

we find no basis for relief relating to the mention of Stapas’ lack of medical 

insurance. 

Giant Eagle also contends the trial court erred by denying his mistrial 

request and allowing Stapas’ counsel to use a demonstrative exhibit that 

contained “unsupported references to sexual gestures” made by the shooter 

to one of the GetGo clerks before the shooting. While it is clear the clerk did 

not testify that McCallister made sexual gestures to her, it is equally clear 

that she testified that he was rude, disrespectful and called her names. 

N.T., 11/13/14, at 274, 283. Further, when counsel for Giant Eagle objected 

to the reference to “sexual gestures” in the exhibit, the trial court ordered 

Stapas’ counsel to strike those references from the exhibit. Id. at 342. We 

cannot agree that the passing reference to a “rude” and “disrespectful” 

name-calling non-party’s “sexual gestures” resulted in any prejudice to Giant 

Eagle. Cf. Poust v. Hylton, 940 A.2d 380 (Pa Super. 2007) (violation of 

pre-trial order precluding counsel from using the word “cocaine” with respect 

to a decedent resulted in prejudice warranting a new trial). 
J-A20016-16

- 30 -

We find neither abuse of discretion nor misapplication of law in the 

evidentiary rulings made by the trial court or in denying Giant Eagle’s 

motions for mistrial, to the extent those motions were made. Further, we 

find no resulting harm or prejudice to Giant Eagle. Giant Eagle’s fourth issue 

fails.

In its fifth and final issue, Giant Eagle contends it was entitled to a 

JNOV based on Stapas’ assumption of risk. We cannot agree. 

This Court’s standard of review of a trial court’s denial of JNOV is as 

follows:

Appellate review of a denial of 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 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 

JNOV should only be entered in a clear case and any doubts 

must be resolved in favor of the verdict-winner[.]

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959, 

967 (Pa. Super. 2015) (citations, quotation marks and brackets omitted).

We first note Giant Eagle’s argument that the case “should have ended 

with a nonsuit because no reasonable jury could have found against Giant 

Eagle given the undisputed evidence establishing that Stapas pursued 
J-A20016-16

- 31 -

McCallister and assumed the risk of confronting and fighting him.” 

Appellants’ Brief at 36. However, the record reveals that at the close of 

Stapas’ case, his counsel moved for a directed verdict as to Giant Eagle’s 

negligence based on the testimony that Giant Eagle never “responded to the 

Brandon McCallister incident.” N.T., 11/14/14, at 643. Counsel for Giant 

Eagle responded:

We would obviously deny that. I was going to move for a 

nonsuit on behalf of Giant Eagle due to they haven’t established 

any link between what happened and the shooting in question. 

However, the evidence in this case is such that there were 

responses by Giant Eagle to the incidents, and it would be 

inappropriate at this point in time to make any ruling in favor of 

[Stapas]. 

Id. The trial court responded, “Both denied.” Id. No other argument took 

place relating to a motion for nonsuit and there is no indication on the record 

that assumption of risk was even the basis of Giant Eagle’s nonsuit request.

Giant Eagle is correct in recognizing that assumption of risk, while oftchallenged, remains a viable defense “when a plaintiff voluntarily proceeds 

to encounter a known risk.” Appellants’ Brief at 37 (citing Howell v. Clyde, 

620 A.2d 1107, 1110 (Pa. 1993) (plurality)).10 In Carrender v. Fitterer, 

469 A.2d 120 (Pa. 1983), our Supreme Court held:

____________________________________________

10 In its reply brief, Giant Eagle cites an unpublished memorandum opinion 

of this Court in support of its contention that the demise of assumption of 

risk in Pennsylvania has been greatly exaggerated. Appellants’ Reply Brief 

at 22 n. 7. Had this been the only instance of Giant Eagle’s violation of the 

prohibition against relying upon or citing an unpublished memoranda 

(Footnote Continued Next Page)
J-A20016-16

- 32 -

A danger is deemed to be “obvious” when “both the condition 

and the risk are apparent to and would be recognized by a 

reasonable man, in the position of the visitor, exercising normal 

perception, intelligence, and judgment.” Restatement [(Second 

of Torts] § 343A comment b. For a danger to be “known,” it 

must “not only be known to exist, but . . . also be recognized 

that it is dangerous and the probability and gravity of the 

threatened harm must be appreciated.” Id. Although the 

question of whether a danger was known or obvious is usually a 

question of fact for the jury, the question may be decided by the 

court where reasonable minds could not differ as to the 

conclusion. See Restatement, supra, § 328B comments c and d.

Id. at 123-24. 

Giant Eagle contends that no reasonable minds could disagree that 

Stapas assumed the risk of being injured when he pursued and fought 

McCallister. Appellants’ Brief at 38. We cannot agree. As Stapas asserts, 

there is no evidence Stapas was aware McCallister had a gun. Appellee’s 

Brief at 57. Moreover, while characterized as a rude, disrespectful namecaller, there was no evidence of prior violent acts on McCallister’s part or any 

history of bad words or bad feelings between Stapas and McCallister before 

the night of the shooting. N.T., 11/10/14, at 101-04. Therefore, Stapas 

could not be said to have voluntarily encountered a known risk. 

 

(Footnote Continued) _______________________

decision of this Court, see 210 Pa. Code § 65.37, we might have chosen not 

to mention it. However, because it is one of three unpublished decisions 

relied upon or cited in Giant Eagle’s reply brief, we remind practitioners to 

refrain from future instances of citation to unpublished memoranda 

decisions. 
J-A20016-16

- 33 -

Based on our review of the entire case, including a review of Giant 

Eagle’s issues challenging liability, we are convinced that liability—attributing 

73% to Giant Eagle and 27% to Stapas—has been “fairly determined,” i.e., 

that the jury has “settled the issue as to responsibility fairly and upon 

sufficient evidence—so that dissociated from the other questions it ought to 

stand as the final adjudication of the rights of the parties.” Banohashim, 

77 A.3d at 23 (citations omitted). Further, we find, as did our Supreme 

Court in Kiser, that the issue of damages here is not intertwined with the 

issue of liability. Giant Eagle had a “fair opportunity to litigate the issues of 

negligence and contributory negligence[.]” Kiser, 648 A.2d at 8. The jury 

found Giant Eagle negligent and Stapas contributorily negligent and 

apportioned causal negligence accordingly. With regard to liability, we find 

the jury’s decision was unambiguous and “free from doubt.” Id. Therefore, 

we find that Giant Eagle is entitled to a new trial limited to damages only.

Judgment vacated. Case remanded for further proceedings consistent 

with this Opinion. Jurisdiction relinquished.
J-A20016-16

- 34 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2016