Antonace v. Ferri Contracting Co., Inc.

• Decision Date: 28 October 1983
• Citation: 467 A.2d 833,320 Pa.Super. 519
• Parties: Anthony ANTONACE, Administrator of the Estate of Richard Allen Antonace, Deceased v. FERRI CONTRACTING COMPANY, INC. and Joseph A. Micale. Appeal of FERRI CONTRACTING COMPANY, INC. 1074
• Court: Pennsylvania Superior Court

Page 833

467 A.2d 833

320 Pa.Super. 519

Anthony ANTONACE, Administrator of the Estate of Richard Allen Antonace, Deceased v. FERRI CONTRACTING COMPANY, INC. and Joseph A. Micale Appeal of FERRI CONTRACTING COMPANY, INC.

1074

Superior Court of Pennsylvania.

Argued April 28, 1982.

Filed Oct. 28, 1983.

[320 Pa.Super. 521] David B. Fawcett, Jr., Pittsburgh, for appellant.

William S. Schweers, Jr., Pittsburgh, for Antonace, appellee.

David Harry Patterson, Pittsburgh, for Micale, appellee.

Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.

MONTEMURO, Judge:

This is an action in trespass commenced under the Wrongful Death and Survival Acts, 42 Pa.C.S.A. §§ 8301, 8302. Appellee, Antonace, is seeking damages for the death of his minor son, Richard, age 16, who died September 16, 1979 as a result of injuries he sustained the previous day.

On September 15, 1979, at approximately 5:00 P.M., the decedent was operating a dirt bike on property owned by appellee, Joseph A. Micale, but leased to appellant, Ferri Contracting, Inc. It was the decedent's intention to visit a friend, Gerry Penk, whose residence was located adjacent to the property occupied by appellant. The decedent entered the property at the south or rear end and travelled a short distance before his dirt bike collided with a one and one-half inch steel cable which had been strung across a roadway on the property by appellant. The cable flew up and struck the decedent on the neck. This injury ultimately proved fatal as the decedent died the following day.

On March 24, 1981, this case was tried by a jury before the Honorable Stephen A. Zappala of the Court of Common Pleas On appeal, appellant, Ferri, seeks a judgment n.o.v., or in the alternative, a new trial.

                Allegheny County. 1  After the close of appellee Antonace's case, the trial court granted a compulsory non-suit in favor of appellee, Micale.  On March 26, 1981, the jury [320 Pa.Super. 522] returned a verdict, on special interrogatories, in favor of appellee Antonace.  Motions for judgment n.o.v. and a new trial were dismissed
                

Motion for Judgment n.o.v.

Initially, appellant urges the court to hold that the trial court erred in denying its motion for judgment n.o.v.

In reviewing a trial court's denial of a motion for judgment n.o.v., we must view the evidence and all reasonable inferences from it in a light most favorable to the verdict winner. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963); Hargrove v. Frommeyer and Company, 229 Pa.Super. 298, 323 A.2d 300 (1974).

Here, the trial judge determined that appellee's decedent was a trespasser, and neither party is disputing his status under the common law. Under current law, the duty owed to a trespasser by a landowner or occupier is to refrain from willful or wanton misconduct. Engel v. Friend's Hospital, 439 Pa. 559, 266 A.2d 685 (1970); Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965).

Definitions of the terms willful and wanton were set forth at length in Evans, supra:

... Correctly speaking, wilful misconduct means that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue. This, of course, would necessarily entail actual prior knowledge of the trespasser's peril. Wanton misconduct, on the other hand, "means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences * * *." Prosser, Torts § 33 at 151 (2d ed. 1955).

Regarding "knowledge", the court continued, saying:

Other decisions of this Court have recognized that actual prior knowledge of the injured person's peril need not be affirmatively established to constitute wanton misconduct. These cases, as well as the Restatement of Torts, clearly indicate that if the actor realizes or at least has knowledge of sufficient facts to cause a reasonable man to realize the existing peril for a sufficient period of time beforehand to give him a reasonable opportunity to take means to avoid the accident, then he is guilty of wanton misconduct if he recklessly disregards the existing danger.

Evans, supra at 573-574, 212 A.2d at 443-444.

A review of the evidence reveals the following relevant facts.

Appellee, Micale, had leased the property in question to appellant, Ferri, early in 1978. The lease was an oral month to month lease which was to continue until a sewer project contracted by appellant was completed. The purpose for which appellant leased the ten acre property was the storage of material and equipment to be used on the sewer project.

Almost immediately after taking possession of the property, appellant began experiencing problems with vandalism. In an attempt to remedy this problem, appellant installed a house trailer on the property and had one of his employees live there. In addition, appellant strung the steel cable, which ultimately injured the decedent, across one of the three dirt roadways which The cable was a dark rust color, was strung horizontally across the road surface, and was approximately 27-30 inches off the ground. The roadway in question was about 250-300 yards in length, with trees and underbush on either side. The cable was strung midway along the length of the roadway.

were located on the property. The cable was left down during normal business hours but was put up on evenings and weekends.

There was testimony that prior to the erection of the cable, boys in the vicinity used the property leased by appellant for dirt bike riding. In fact there was testimony that an employee of the appellant, who lived on the property in the house trailer, had invited Gerry Penk and other neighborhood boys to go bike riding on the property with him. Appellant did not dispute that it knew dirt bikers were using the property; however, its superintendent did state that he had never seen trail bikers on the particular roadway in question. Regarding this particular decedent, there was no evidence which indicates that he had ever been on the property prior to the date of the fatal accident.

There was also testimony, disputed by appellant, that the steel cable would not be visible to a dirt bike rider at distances greater than 100 feet. Appellant's superintendent, William F. Duchess, testified that it was foreseeable that someone using the road would not see the cable unless it were somehow marked. Duchess admitted on cross examination that the cable posed a danger and that orange ribbons should have been put on to make it safer. In fact Duchess admitted that he had tied ribbons on the cable at some point but that they had been torn off. Adding to evidence of difficult visibility, appellee Micale testified that when he had been in possession of the property he had placed a gate at the same point that the cable was located, and that he had painted it yellow so that it could be seen.

Local police Officers Simonetti and Chearno testified that on dozens of occasions they had been on the property and had not seen the cable. In addition to patroling the property in his capacity as a police officer, Officer Simonetti had on several occasions been hired by appellant as a private security guard, and was characterized by appellant's superintendent as being "very familiar with the property." (R. 323a). The testimony of Officers Simonetti and Chearno also indicated that during the time appellant was in possession of the property, there were never any "no trespassing signs" or other warning signs posted. This testimony was corroborated by Gerry Penk, a friend of the decedent, who stated that he too had never seen any warning signs on the property. Appellant's witnesses explained this by saying that they had posted signs but that they had been torn down by vandals.

Specifically, in regard to the "knowledge" requirement for a finding of liability, appellant argues that there is no evidence which indicates that the decedent had been on the property prior to the date of the fatal accident, even if other dirt bike riders had been, and that, therefore, it did not have the requisite notice. However, as the definition quoted earlier indicates, actual knowledge is not required for a finding of wantonness. Evans, supra. See also, Fugagli v. Camasi, 426 Pa. 1, 229 A.2d 735 (1967).

In the case of Franc v. Pennsylvania Railroad, 424 Pa. 99, 225 A.2d 528 (1967) (per Musmanno, J., with four Justices concurring and two dissenting), Justice Musmanno reasoned that since railroad employees walked across a bridge that the plaintiff had fallen off of, it was for the jury to determine whether the railroad "if it did not have actual notice, had constructive notice of the hiatus in the walking surface of the span." Franc, supra, at 102, 225 A.2d at 529.

Here similarly it can be said that since appellant's employees were frequently on the property, and in fact one lived there, it was for the jury to determine whether it Additionally, appellant argues that where one thinks of conscious indifference to the safety of others, one thinks of the spring gun cases where homeowners maimed trespassers, or cases where a property owner strung a very thin, electrically charged wire on his land and camouflaged it so as not to be easily detected by trespassers. While it is perhaps true that these are the classic hornbook examples, appellant sets forth no case law, and we are able to find none, which limits a finding of willful or wanton misconduct to the examples given.

had constructive notice that the decedent was using the property for dirt bike riding.

Applying the principles from the foregoing authorities to the case sub judice, it is clear that a jury could conclude that appellant knew that dirt bike riders such as the...