Clewell v. Pummer

• Decision Date: 13 March 1956
• Citation: 121 A.2d 459,384 Pa. 515
• Parties: Harry CLEWELL and Helen Clewell, Appellants, v. Frank PUMMER and Minnie Pummer, his wife. Appeal of Harry CLEWELL. Appeal of Helen CLEWELL.
• Court: Pennsylvania Supreme Court

Page 459

121 A.2d 459

384 Pa. 515

Harry CLEWELL and Helen Clewell, Appellants, v. Frank PUMMER and Minnie Pummer, his wife Appeal of Harry CLEWELL Appeal of Helen CLEWELL.

Supreme Court of Pennsylvania.

March 13, 1956.

Rehearing Denied April 6, 1956.

Laurence H. Eldredge, Philadelphia, William M. Power, Doylestown, Paul A. McGinley, Allentown, for appellant.

Frederick E. Smith, Ross & Smith, Doylestown, C. William Freed, Quakertown, Sidney L. Wickenhaver, Robert L. Trescher, Montgomery, McCracken, Walker & Rhoads, Philadelphia, for appellee.

Before STERN, C. J., and JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

MUSMANNO, Justice.

The California House in Bucks County near Quackertown is a three-story country hotel with many of the limitations associated with that type of hostelry. It is without elevators or outside illumination but it does have a bar on the first floor. On the night of June 2, 1951, the plaintiffs in this case, Harry Clewell and Helen Clewell, his wife, called to visit Mr. and Mrs. Raymond M. Schaffer (Raymond Schaffer is brother to Mrs. Clewell), who lived in an apartment on the third floor. They entered the establishment through the barroom whose lights directed attention to the door which opened into that part of the hotel. A second outside door opened into a center hall accommodating a staircase with steps climbing to the second and third floors.

After visiting with the Schaffers for several hours the Clewells started down the steps which conducted to the second floor to a point opposite an outside door which gave out on to the slanting roof of a porch. Believing that they had reached the first floor, Mrs. Clewell opened the door, which was unlocked, and stepped out, plunging to the ground beneath, dragging with her her husband whose hand she was holding. Mrs. Clewell's head struck the bumper of an automobile parked below, with resultant fractures of the skull. She also sustained fractures of the vertebra and numerous other injuries of a serious character. Mr. Clewell suffered injuries of his own.

In the ensuing trespass action against Frank and Minnie Pummer, the proprietors of the hotel, Harry and Helen Clewell recovered verdicts in the sums of $5,000 and $28,700 respectively, which verdicts were reversed by the Court of Common Pleas of Bucks County on the basis that the plaintiffs were guilty of contributory negligence as a matter of law. This appeal followed.

Photographs introduced at the trial depict the door through which the plaintiffs fell as one that could readily be mistaken as a ground floor exit. Its upper half was panelled in glass and covered with a lace curtain. It had the same general appearance as both the outer doors on the first floor. There was no suggestion that this door might have been the entrance to another apartment or to a rest room. Its dress was specifically that of an outside door.

The steps coming down from the third to the second floor could easily convey the idea to the casual visitor that they were aiming at the curtain-covered door as a passageway to a first floor egress. The anemic glimmer from the feeble 15-watt bulb in the ceiling above shed no light on the true situation. There was nothing about the door, so far as the record shows, which would rebut the natural conclusion that it was a normal outlet from the building. The only question on this appeal is whether or not the plaintiffs should have known that they were in reality on the second floor, which knowledge should have vetoed their sensory perception that they had arrived at the ground floor.

The lower Court, having reversed on contributory negligence, regarded the question of defendant's negligence as moot. In view of the disposition we will make of the appeal we find it necessary to pass on the question of negligence as well as contributory negligence. In Held v. American Hotel Realty Corp., 378 Pa. 196, 198, 106 A.2d 582, 584, we quoted with approval the following:

"Where a store, office building, or similar business establishment to which the public is impliedly invited to resort has a door leading to a cellar, elevator shaft, or other dangerous place, which is left unfastened, and which from its location and appearance may be mistaken for a door which a member of the public on the premises is entitled to use, the proprietor is liable to a person who by mistake passes through that door and is injured. " Annotation 20 A.L.R. 1147.

In that case the front of the building had two doors, one leading into the lobby and the other opening into the cellar with precipitous but inconspicuous steps. The plaintiff fell down those steps. In affirming the plaintiff's verdict we said:

'The proprietor of a business building is answerable in law if he maintains two identically-looking entrances one of which is safe and the other unsafe, and, because of that identity in appearance, a business visitor is injured. It is not for the visitor to guess which entrance is safe. If one of the entrances plunges perpendicularly into a cellar instead of leading horizontally to a ground floor level, the building proprietor is liable for resulting injuries unless suitable warnings have been posted informing the visitor of the accelerated and unintended destination to which the wrong door leads.'

In the case at bar every rule of caution and care dictated the need for either keeping the roof door locked or posting it with a notice that it was not a proper exit from the building. No one could doubt the negligence of a business proprietor who would house a vicious dog in a room neither locked nor suitably posted, into which an unwary visitor walked to his injury, under the erroneous impression, as here, that the door led to the ground floor outside. The potential injuries which follow precipitation into empty air from a second floor roof are certainly no less grievous than those which would result from the attack of a dog.

The negligence of the proprietor is even greater if it appears that there was no need to keep the dangerous dog in the room having an unmarked and unlocked door. While entitled to use his premises as he sees fit, a proprietor has less chance escaping liability in accident cases if the dangerous area he controls has little or no utilitarian value:

'Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.' Restatement, Torts § 291(1).

Stated in other language, this principle is firmly settled in jurisprudence: Any act which subjects an innocent person to an unnecessary risk is a negligent act if the risk outweighs the advantage accruing to the actor. It cannot be doubted in this case that the roof door constituted a risk of considerable magnitude. One of the previous tenants of the building, a Mrs. Gross, testified that Mrs. Pummer, the co-owner, warned her not to use the door because 'we would fall off the roof.' With the risk incontrovertibly established, we turn to the advantage accruing to the proprietors. What was it? It seems that the only use to which the door was put was to afford Mrs. Pummer a place to shake out her mop. But Mrs. Pummer could have shaken her mop from a window or even more appropriately into a bucket. At any rate, there was no excuse for leaving this door unlocked at 1:30 in the morning. The hour for shaking out mops would certainly have passed before that time. It would be no strain on credulity to surmise that a jury could find that a second story door that opens into the empty night might foreshadow harm more readily than utility.

Clopp v. Mear, 134 Pa. 203, 19 A. 504, 505, is one of the early cases on the subject of dangerous double doors. There the plaintiff fell into the cellar through a hatchway which resembled a proper door at its side. The former bore no warning sign. In affirming the verdict returned for the plaintiff, this Court said:

'In view of the evidence, this was not only a clear case for submission to the jury, but it was scarcely possible for them to come to any other conclusion than that the defendants were chargeable with negligence in leaving the hatchway open and unguarded, and thereby causing the serious injury that was sustained by the plaintiff.'

We conclude in this case that the question of negligence was also one for the jury, and find, after reading the record in the light most favorable to the verdictwinner, as we are required to do, that the jury was warranted in reaching the conclusion that the defendant was negligent.

Now we come to the real question in the appeal: Were the plaintiffs guilty of contributory negligence as a matter of law? The lower court declared that the plaintiffs were 'chargeable with knowledge that they were still on the second floor when they decided to go out of the door in question.' That the plaintiffs did not know they were on the second floor is scarcely debatable because it can be taken for granted that they were not trying to reach the ground via the second story roof. The query presents itself: Should they have known?

The plaintiffs had never visited the premises before. They arrived at the hotel on the night of June 2, 1951, between 9 and 9:30 p.m. They entered through the door of the barroom, the illumination from which cast a glow on the outside porch. Some 15 minutes later they ascended to the third floor with Mrs. Schaffer, as her husband had not yet returned from his employment. A few minutes later they descended to the barroom to await the coming of Mr. Schaffer who arrived at 11:45 p.m. At midnight the four of them returned to the third floor apartment where they talked and drank coffee until 1:30 a.m., when the plaintiffs took their departure. The defendants stress the fact that the plaintiffs passed the roof door three times before the tragic...