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HomeMy WebLinkAbout93-3210 civilRUSSELL RAY WILSON, SR., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 3210 CIVIL 1993 : MONTGOMERY WARD & COMPANY, : Defendant : IN RE: DEFENDANT'S MOTION FOR POST TRIAL RELIEF BEFORE HOFFER, P.J. ORDER OF THE COURT AND NOW, January 16, 1998, after careful consideration of both parties' briefs, Defendant's Motion for Post Trial Relief is denied. By the Court ~ p,j, William P. Douglas, Esquire ~ Douglas, Douglas & Douglas 27 W. High St. Carlisle, PA 17013 Attorney for the Plaintiff John G. DiLeonardo, Esquire Tucker Arensberg, P.C. 100 Pine St., Suite 510 Harrisburg, PA 17101 RUSSELL RAY WILSON, SR., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. NO. 3210 CIVIL 1993 MONTGOMERY WARD & : COMPANY, : Defendant : IN RE: DEFENDANT'S MOTION FOR POST TRIAL RELIEF BEFORE HOFFER, P.J. OPINION HOFFER, P.J.: In this opinion, we address Defendant's Motion for Post Trial Relief. On or about October 14, 1991, Russell Ray Wilson ('Plaintiff" or 'Wilson") was shopping in a Montgomery Ward store located in Camp Hill. (Notes of Testimony, hereinafter "N.T.," 13.) While there, Wilson attempted to sit in a display chair that proceeded to tip over backwards causing Wilson to fall to the floor. (N.T. 14.) After the fall, Wilson began to suffer from several physical maladies. (N.T. 18.) Wilson. experienced vomiting that lasted for several days along with constant headaches. (N.T. 18.) Wilson was diagnosed with whiplash and a concussion. Additionally, his fifth vertebrae was found to be out of alignment. (N.T. 19-21 .) On the advice of his doctor, Wilson attempted physical therapy, but to no avail. (N.T. 21.) These injuries forced Wilson to stop driving his car, along with causing his 3210 CIVIL 1993 vision to become blurred. (N.T. 20.) Furthermore, Wilson's medical problems forced him to curtail some of his activities, such as walking and bike riding. (N.T. 56.) Wilson finally gained partial relief by visiting a chiropractor for twelve sessions. (N.T. 25.) The chiropractor realigned Wilson's neck and back, thereby decreasing Plaintiff's neck problems along with alleviating his headaches. (N.T. 26.) However, Wilson must go for continual readjustments in order to prevent the onset of more headaches. (N.T. 26.) Dr. Skocik, a chiropractor, testified in his deposition that Wilson's injuries were directly related to his fall and that Plaintiff had cervical subluxation which was complicated by cervical hypolordosis. (Dr. Skocik's Deposition, 05-05-96, 4-6.) A non-jury tdal was held before this Court. After headng testimony from both sides, we found in favor of the Plaintiff and awarded damages in the amount of $10,075.47. Defendant then filed a Motion for Post-Trial Relief requesting that we (1) grant a new trial because the decision was unsupported by the weight of the credible evidence in the record; and/or (2) vacate the decision and award and instead enter an order granting Defendant's motion for compulsory nonsuit; and/or (3) vacate the decision and award and instead enter a decision on the question of liability in favor of Defendant; and/or (4) vacate the damage award as excessive 3210 CIVIL 1993 and enter a new award in consideration of the evidence.~ We now address Defendant's motion. DISCUSSION In a case of negligence, in order to establish liability, the plaintiff must prove four elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached this duty; (3) this breach was the cause of Plaintiff's injury; and (4) plaintiff sustained damages from the breach. Williams v. Otis Elevator, Co., 409 Pa. Super. 486, 489, 598 A.2d 302, 303 (1991). After hearing both sides' arguments and witnesses at trial, we found that Plaintiff presented adequate evidence to prove that all four of these elements were met. The duty of care owed by a landowner to a business invitee has been set forth in the Restatement (Second) of Torts: The extent of care required to be exercised by an owner or possessor of land is at all times commensurate of the circumstances surrounding the use to which he has invited his property to be used. One who enters a private residence even for purposes connected with the owner's business is entitled to expect only such preparation as a reasonable prudent householder makes for the reception ~ In lieu of a brief, Defendant submitted the case of Lonsdale v. Joseph Horne Co., 403 Pa. Super. 12, 587 A.2d 810 (1991). However, this case does not discuss excessive damage awards which is one of the issues brought up by Defendant in his Post Trial Motion. According to Cumberland County Rules of Procedure No. 210-7, any issue not briefed is automatically waived. Therefore, there is no need for the Court to discuss the issue of damages since it has been waived by the Defendant. 3210 CIVIL 1993 of such visitors. On the other hand, one entering a store, theater, office building, or hotel is entitled to expect that his host will make far greater preparations to secure the safety of his patrons than a householder will make for his social or even his business visitors. McDonald v. Aliquippa Hosp., 414 Pa. Super. 317, 320-21, 606 A.2d 1218 (1992)(quoting RESTATEMENT (SECOND) OF TORTS § 343 cmt. e (1977)). Montgomery Ward had a heightened duty to the Plaintiff to ensure his safety. The extent of the care required was greater than that owed by a homeowner to a business invitee. Montgomery Ward's duty was to ensure the safety of its customers by inspecting the various displays in the store. Unfortunately, Montgomery Ward failed in its duty. According to Plaintiff's testimony, Montgomery Ward admitted that the chair was dangerous. Terry Bloom, manager of Montgomery Ward, told Wilson after the accident that the chair was unsafe for sitting purposes. (N.T. 17.) Therefore, Montgomery Ward breached this heightened duty of protecting its customers. Furthermore, Plaintiff's injuries were caused by his fall from the chair. In his testimony, Dr. Skocik stated that Plaintiff's cervical subluxation and cervical hypolordosis were directly related to the fall. Plaintiff suffered damages from the fall based upon his medical expenses in trying to prevent the recurring head and neck aches along with the pain and suffering which these ailments brought upon 4 3210 CIVIL 1993 him. Based upon this evidence, the court found that all four elements necessary to prove negligence were met by the Plaintiff. Defendant, in lieu of a brief, offered the case of Lonsdale v. Joseph Horne Co., 403 Pa. Super. 12, 587 A.2d 810 (1991). This case deals with a woman who was injured by a faucet handle at one of the Joseph Horne Company's stores. Id. at 15-16, 813. The Pennsylvania Superior Court held that there was no evidence presented to show that the defective faucet could or should have been discoverable by store employees in the course of a reasonable inspection. Id.__~. at 20-22, 815. Based upon this finding, the court held that there was no evidence to support an inference of negligence. Id. However, we find that this case can be distinguished from the case at bar. Generally, the fixture in Lonsdale was permanently attached to the store, while, in the present case, the chair was a movable commodity for sale by the store. Furthermore, the faucet could be visually inspected by the employees in order to determine if it was defective. However, visual inspection alone would not have been adequate to discover any defects in the chair. Loosened screws or knobs may not be discovered on visual inspection alone. Additionally, Terry Bloom testified that Montgomery Ward's policy is to have the sales associates check daily to determine if anything is out of place. (N.T. 7.) A visual inspection which looks 5 3210 CIVIL 1993 to see only if a chair is moved out of place may not be adequate to determine whether the object is safe for customers. This case was tried on straight negligence principles and we have found that all necessary elements were satisfied. We have accepted Plaintiff's testimony as true and Defendant presented no evidence which would discredit Plaintiff. Because we find that this decision was supported by the weight of the evidence, we see no need to vacate this decision. Therefore, Defendant's Motion for Post Trial Relief is denied. 6