Haddon v. Lotito

• Decision Date: 04 May 1960
• Citation: 161 A.2d 160,399 Pa. 521,81 A.L.R.2d 1199
• Parties: , 81 A.L.R.2d 1199 Sarah HADDON, a Minor, by Dorothy Haddon, her Guardian, James Haddon, a Minor, by Dorothy Haddon, his Guardian, and Andrew Brunnet, Appellants, v. Girolomo J. LOTITO, otherwise James Lotito, Trading and Doing Business as Lotiti Fireworks Company. Appeal of HADDON (two cases). Appeal of BRUNNET.
• Court: Pennsylvania Supreme Court

Page 160

161 A.2d 160

399 Pa. 521, 81 A.L.R.2d 1199

Sarah HADDON, a Minor, by Dorothy Haddon, her Guardian James Haddon, a Minor, by Dorothy Haddon, his Guardian, and Andrew Brunnet, Appellants, v. Girolomo J. LOTITO, otherwise James Lotito, Trading and Doing Business as Lotiti Fireworks Company Appeal of HADDON (two cases) Appeal of BRUNNET.

Supreme Court of Pennsylvania.

May 4, 1960.

Lawrence L. Davis, Davis & Davis, Ebensburg, for appellants.

Myers, Taylor & Peduzzi, Edward F. Peduzzi, Ebensburg, for appellee.

Before CHARLES ALVIN JONES, C. J., and MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

EAGEN, Justice.

The plaintiffs, Sarah Haddon, James Haddon and Andrew Brunnet, were injured while attending and witnessing a public fireworks display at a public picnicpark on July 4, 1956. An action in trespass against the defendant, producer of the exhibition, resulted at trial in the entry of a compulsory nonsuit which the lower court en banc refused to remove. The correctness of this ruling is now before this Court on appeal.

It is well established that a compulsory nonsuit should be entered only in a very clear case and that the suing party or parties must be given the benefit of all the evidence and inferences therefrom favorable to their cause. Gift v. Palmer, 1958, 392 Pa. 628, 141 A.2d 408. The record must, therefore, be read in this light.

The defendant, under contract with St. Joseph's Parish, Portage, Pennsylvania, produced the fireworks display as one of the attractions at a church picnic. The injured plaintiffs visited the park for the purpose of viewing the display. They arrived together at the park about ten minutes after eleven o'clock at night when the exhibition was nearly over, and it was during the climax, or grand finale, of the show that the unfortunate accident occurred. Counsel for the plaintiff-appellants argue that under the evidence the latter are entitled to recover and that the defendant's liability is established on any one of three theories: namely, (1) absolute liability; (2) exclusive control; (3) defendant's negligence.

This is a case of first impression. However, in Pennsylvania it is established that one who carries on an ultrahazardous activity is liable for injury to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity, when the harm results thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent it. This is known as the doctrine of absolute liability. Federoff et ux. v. Harrison Construction Company, 1949, 362 Pa. 181, 66 A.2d 817; Restatement of Torts, sections 519 and 520. This doctrine had been applied in blasting operation cases and in other instances wherein harm was done by parties who so misused some private rights of their own as to have exposed the person or property of others to unreasonable risks of danger. However, a public fireworks display, handled by a competent operator in a reasonably safe area and properly supervised (and there is no proof to the contrary herein), is not so dangerous an activity. Other jurisdictions have so ruled and common experience supports this conclusion. Where one discharges fireworks illegally or in such a manner as to amount to a nuisance and causes injury to another, some jurisdictions have held that liability follows without more. Gerrard v. Porcheddu, 1927, 243 Ill.App. 562; Doughty v. Atlantic City Business League, N.J.1911, 80 A. 473. But the production of a public fireworks display, under the circumstances presented herein, is neither illegal nor a nuisance and, consequently, liability, if existing, must be predicated upon proof of negligence. Crowley v. Rochester Fireworks Company, 1906, 183 N.Y. 353, 76 N.E. 470, 3 L.R.A.,N.S., 330; Dwell v. Guthrie, 1890, 99 Mo. 653, 12 S.W. 900; Shannon v. Dow, 1934, 133 Me. 235, 175 A. 766. The doctrine of absolute liability does not apply.

The same may be said with equal force in regard to the doctrine of exclusive control. The elements necessary to bring a situation within the purview of this rule were set forth with great care in Mr. Chief Justice Stern's opinion in Mack v. Reading Company, 1954, 377 Pa. 135, 103 A.2d 749, 41 A.L.R.2d 927. The doctrine in effect places upon the defendant the burden of rebutting an inference of negligence by a satisfactory explanation. Negligence is not presumed in such cases from the mere happening of the accident. It is the unusual character of the attendant circumstances which constitute evidence from which the existence of negligence may be inferred by the jury. Application of this doctrine is necessarily limited to cases where the evidence of the cause of the unusual accident is peculiarily or exclusively within the possession of the defendant and not equally available to both parties. Mere difficulty of obtaining evidence as to the cause of the accident is not, of itself, sufficient to warrant application of the rule. The nature of the occurrence must be so unusual that an inference reasonably follows that it would not have happened except for the operator's failure to exercise due care. In other words, the accident must be of such a nature that it would not likely have occurred unless negligence existed. This does not mean that it is enough for the plaintiff to show that one of the possible causes of the accident could be the defendant's negligence; rather, the doctrine is applicable to a situation where, in the light of human experience, the accident was such as almost invariably occurs because of negligence on the part of the person in control of the operative instrumentality.

These elements are not present in this case. The accident was not of such a nature that it can confidently be assumed, in the absence of proof, to have been due to defendant's negligence. Consistent with the record in this case, it could, we feel, just as reasonably be concluded that the unfortunate occurrence is owing to latent defects in the fireworks themselves, a situation for which the defendant would not be legally answerable.

The only questions of merit are whether or not sufficient facts were proven to sustain a finding of defendant's negligence and, if sufficiently shown, whether the plaintiffs accepted and assumed the risks involved. The producer of a public fireworks exhibition is duty bound to use the care and prudence of a reasonably prudent and intelligent man in providing a reasonably safe place for the spectators and in protecting them from unnecessary risks of harm. In other words, he is liable only if he fails to exercise reasonable care. The mere happening of an accident at such an exhibition is not proof of negligence and, of course, negligence is never presumed. This is the rule universally followed in other jurisdictions. See cases cited 35 C.J.S. Explosives § 10, pp. 245, 246; 4 Shearman & Redfield on Negligence, Sect. 762, pp. 1745, 1746; Cooley on Torts; 22 Am.Jur., Sections 62, 63. The care required is similar to that expected of an individual who maintains a place of amusement for admission to which a price is charged. Such a party is not an insurer but he must use reasonable care in the construction, maintenance and management of it, having regard to the character of the exhibitions given and the customary conduct of the patrons invited. Schentzel v. Philadelphia National League Club, 1953, 173 Pa.Super. 179, 96 A.2d 181.

Do the facts established by the evidence indicate that the defendant failed in his duty? We think not! When the plaintiffs arrived at the park, they joined the spectators and took up a standing position on the rear fringe of the crowd, approximately one thousand feet distant from the point where the display was being set off. The proof of negligence to sustain the action must be gleaned entirely from the testimony of one of the plaintiffs, who described the situation in this manner, '* * * we arrived * * * and they started sending these great big salutes up, these big rockets, * * * they go up and bust and make all kinds of beautiful stars, and they give a big loud thud and then they give a final grand salute. I would say there must have been roughly about twenty of those large ones in those grand salutes and they just thumped and busted all over and some of them hit the ground in among us and busted up. * * * Some of them, instead of going away up and busting away up, they just went up a little way, part way up, and then they came right back down and started busting among us. * * * They seemed to be getting lower and lower instead of staying high. * * * They seemed to be bursting closer to the ground. * * * It seemed practically above our heads. * * * Some of them already hit in front of us on the...