The wrongful death suit brought by the estate of Michael Tobin against the University landed in Philadelphia's Court of Common Pleas on Monday, two years after it was first filed and over four years after the accident that claimed Tobin's life.
Contending that Penn's alleged failure to maintain the stairs behind a University owned Locust Walk fraternity house caused Tobin's death, the estate is seeking $5 million in damages, a figure based on estimates of Tobin's prospective earnings.
Jury selection was completed on Monday, though a number of pre-trial motions had to be resolved before opening arguments began the following day. Speaking briefly to the jury as the trial got under way, Court of Common Pleas Judge Paul Panepinto estimated that the case would take three weeks to try.
"Both sides are very sincere," Panepinto said, noting that hard-fought cases tend to take some time to resolve.
Similar as they may be in their determination, the Tobin estate and the University agreed on little but the tragic nature of Michael Tobin's early passing at the age of 26.
A 1994 College graduate,Tobin fell to his death behind what was then Phi Gamma Delta's fraternity house at 3619 Locust Walk. Better known as FIJI, the fraternity house had been Tobin's home during his junior and senior years at Penn. As a former brother, Tobin was invited back to campus for FIJI's annual "Pig Roast" alumni dinner.
Having consumed a significant amount of alcohol during the course of the evening, Tobin was found dead by a fraternity brother around 6 a.m. the following day in the open area outside of the house's basement kitchen.
Face down in the garbage filled "Pit," he had sustained a number of injuries, badly fracturing his skull.
Shortly after, the 117-year-old chapter was disbanded by the brothers.
In the details, however, the stories diverge.
According to the plaintiff's counsel, Tobin had most likely been trying to return to his room at the Sheraton hotel, exiting the house by the kitchen door. In order to leave the property, Tobin had to cross the refuse-choked Pit and navigate the 14 step staircase that would bring him to street level.
Demonstrating her points with slides, pictures and a life-sized wooden mock up of the Pit staircase right in the courtroom, attorney Patricia Pierce argued that the allegedly unlit, unsafe staircase was "an accident waiting to happen... In clear violation of municipal code."
Showing pictures of Tobin as he was first discovered on a mountain of trash, Pierce argued that Penn, as owner and landlord of the building, was responsible for ensuring the safety of the property as mandated by law.
Central to the plaintiff's case is the handrail, which allegedly did not reach the minimum height proscribed by city building codes. Standing on the mock up, Pierce claimed the low railing allowed Tobin to fall to his death.
"The stairs were defective and in disrepair -- and Penn knew it," she said.
The position of one of Tobin's shoes, about a third of the way up the staircase, was also cited by the plaintiff's counsel as proof that Tobin fell from the stairway.
The University presented an alternative version of events, retaining the services of complex civil litigation expert Dan Segal.
Delivering his opening remarks, Segal, a former law professor at Penn, submitted that Tobin had more likely fallen from one of the house's balconies or from the area directly above the Pit. Judging by the seriousness of Tobin's injuries and the distance the body was found from the stairway, Segal argued, a fall from the steps was highly unlikely.
Segal also focused heavily on Tobin's drinking during the course of the day. Having enjoyed "abundant hard alcohol and kegs of beer," an evening of bar-hopping and finally a round of beer pong, Tobin was "grossly impaired in his coordination and judgment" according to defense counsel. Segal cited the toxin report done for Tobin's autopsy -- the former FIJI brother had a blood alcohol level of .23.
He had "the equivalent of ten bottles of beer in him at his death," Segal said, concluding that "he fell and died not because of any claimed negligence from Penn, but [because he was] severely impaired" from drinking.
Though the defense had evidently planned to introduce evidence that FIJI brothers routinely climbed along the face of the building above the Pit, Judge Panepinto granted a motion by the plaintiff to exclude the testimony.
The University scored a pre-trial victory as well, however, successfully moving to exclude testimony relating to "broad University policy." This win could potentially weaken the plaintiff's ability to reference Penn's suspension of an iniative to improve campus lighting. Consequently, it seems Penn President Judith Rodin will not be obliged to testify.
The first witness called by the plaintiff was Beth Schnitman-Malm, an Office of Fraternity and Sorority Affairs facilities administrator who oversaw the maintenance of the FIJI house at the time of Tobin's death.
The suit was also filed against Trammell Crow, management company to which Penn had outsourced some facilities maintenance duties, as well as the national chapter of Phi Gamma Delta fraternity.
