Miller v. Peter J. Schmitt & Co., Inc.

• Decision Date: 17 June 1991
• Citation: 592 A.2d 1324,405 Pa.Super. 502
• Parties: Luanne MILLER v. PETER J. SCHMITT & CO., INC., t/d/b/a Loblaws, Edward Edinger and Mary L. Edinger, Individually, and t/d/b/a Edinger Super Ice Service. Appeal of PETER J. SCHMITT & CO., INC., t/d/b/a Loblaws.
• Court: Pennsylvania Superior Court

Page 1324

592 A.2d 1324

405 Pa.Super. 502

Luanne MILLER v. PETER J. SCHMITT & CO., INC., t/d/b/a Loblaws, Edward Edinger and Mary L. Edinger, Individually, and t/d/b/a Edinger Super Ice Service Appeal of PETER J. SCHMITT & CO., INC., t/d/b/a Loblaws.

Superior Court of Pennsylvania.

Argued Oct. 17, 1990.

Filed June 17, 1991.

Anthony J. Williott, Pittsburgh, for appellant.

T. Warren Jones, Erie, for Edinger, appellee.

Lawrence M. Kelly, Ellwood City, for Miller, appellee.

Before ROWLEY, WIEAND and FORD ELLIOTT, JJ.

ROWLEY, Judge:

On July 19, 1984, while shopping in a supermarket owned and operated by appellant Peter J. Schmitt & Co., t/d/b/a Loblaws (Loblaws), appellee Luanne Miller slipped and fell in front of an ice machine that had been stocked minutes earlier by appellee Edward Edinger, an independent contractor who regularly delivered ice to the machine. To recover for injuries sustained in the fall, Miller brought an action against Loblaws and Edward and Mary Edinger, individually, and t/d/b/a Edinger Super Ice Service (Edinger). A jury awarded damages to Miller in the amount of $35,000.00 and apportioned causal negligence as follows: Miller, 25%; Loblaws, 45%; and Edinger, 30%. ¹ Following the denial of post-trial motions and the award of delay damages, a judgment was entered against Loblaws in the amount of $19,035.13 and against Edinger in the amount of $12,266.01.

In this timely appeal from the judgment, Loblaws contends that 1) because the evidence at trial was not sufficient under Pennsylvania law to sustain a verdict against Loblaws, Loblaws is entitled to judgment notwithstanding the verdict; or, alternatively, 2) Loblaws is entitled to a new trial as a result of one or more errors made by the court during the course of the trial. In addition, Loblaws argues that the trial court erred in failing to order Edinger to indemnify Loblaws. For the reasons set forth below, we conclude that the remedy of judgment notwithstanding the verdict is not warranted but that the admission of evidence of a post-accident remedial measure requires that we vacate the judgment and remand the case for a new trial.

I. LOBLAWS' REQUEST FOR JUDGMENT N.O.V.

"The entry of judgment notwithstanding a jury verdict to the contrary is a drastic remedy" which will be granted "only if 'no two reasonable persons could fail to agree that the verdict is improper.' " Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 264-65, 545 A.2d 926, 928-29 (1988) [quoting Neal by Neal v. Lu, 365 Pa.Super. 464, 478, 530 A.2d 103, 110 (1987), (quoting Northwest Savings Association v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986)) ]. In reviewing a motion for judgment n.o.v., we consider all of the evidence actually received and all reasonable inferences therefrom in the light most favorable to the verdict winner. Id., 376 Pa.Super. at 264-65, 545 A.2d at 929. Mindful of our scope of review, we turn to the facts of the case before us.

Edinger Super Ice Service, owned and operated by Edward L. Edinger, Sr., was under contract to deliver ice to Loblaws, the supermarket where the accident occurred. Mr. Edinger had been delivering ice to Loblaws for at least a year. When ice was needed, Loblaws would call Mr. Edinger; thus, Loblaws always knew when Mr. Edinger was going to make a delivery. During 1984 Mr. Edinger delivered ice to the store at least weekly and sometimes more frequently. These deliveries involved an average of several hundred bags of ice per week. The ice cubes had been packaged by Mr. Edinger in plastic bags with a tie or seal at the top.

The usual procedure when making a delivery at the store was for Mr. Edinger to back his truck up to the loading dock at the rear of the store and then ring a bell, which would summon a store employee to admit him into the store and to take an inventory of the ice being delivered. Mr. Edinger would then load the bags of ice onto a cart. When one of the store's carts was available, he would use it; otherwise he would use his own open cart. Knowing that condensation or leakage from the bags of ice could drip onto the floor, he preferred to use one of Loblaws' carts in this particular store because if water dripped onto the tile floor, which was regularly buffed to a high gloss, it would be "an accident waiting to happen" (N.T. at 174).

After the ice had been loaded onto a cart, Mr. Edinger would take it to the ice machine, which was located in the front of the store, a distance of approximately half a block from the receiving area in the back, or to one or more of several other locations in the store where ice was used. When doing so he normally carried a mop on the cart because of the possibility of spillage or leakage. Loblaws did not provide an employee to assist him in loading the ice machine. Although Loblaws had placed rugs in the produce area and at the front entrance because of the possibility of wet floors in those areas, there was no rug in front of the ice machine, which was located in a high-traffic area.

On July 19, 1984, the day of Ms. Miller's accident, the weather was hot and sunny, with a temperature of approximately ninety degrees. Responding to a call from Loblaws, Mr. Edinger was admitted by Alois Stuczynski, the co-manager of the store. Mr. Edinger unloaded ice in the receiving area, which was not air conditioned. ² Because no Loblaws cart was available, he used his own cart to transport approximately twelve bags of ice to the ice machine at the front of the store. On the way to the ice machine he said hello to Earl Rosenquist, the store manager. After Mr. Edinger had placed the ice in the machine, he returned to the back of the store without mopping the floor; he was unable to remember whether he had had a mop on the cart at that time.

Within minutes of the delivery of ice, Ms. Miller slipped and fell on a "surface wetness" (N.T. at 57) located approximately three to five feet in front of the ice machine. She had not seen any water on the floor before she fell. After the accident she was assisted by the store manager, who told her "that probably the ice company had just been there and probably they had left the water on the floor" (N.T. at 60). The co-manager of the store examined the floor and saw two trails of water drops, "one heading to the freezer and the other back out to the store area" (N.T. at 222). Mr. Rosenquist, the store manager, prepared an accident report indicating that the floor was wet from the ice company filling the machine and listing as a step taken to prevent a recurrence, "Forbid Edinger Ice Company to carry ice in open carts" (N.T. at 208). As a result of Ms. Miller's accident a rug was placed in front of the ice machine.

Loblaws contends that the "extreme remedy" of judgment notwithstanding the verdict is warranted because neither § 343 of the Restatement (Second) of Torts, which Loblaws considers to be controlling, nor § 344, which appellees consider to be controlling, provides a basis for holding Loblaws liable for appellee's injury. According to Loblaws, the crucial issue under either section of the Restatement is whether "Loblaws act[ed] reasonably to discover any dangerous conditions on its premises?" (Brief for Appellant at 19). Contending that it exercised reasonable care, Loblaws points to the undisputed fact that at no time before July 19, 1984, had there been a similar situation involving Edinger. Therefore, Loblaws argues, since Loblaws did not cause or contribute to, did not have actual or constructive notice of, and could not have foreseen the accident, there is no basis on which to hold Loblaws liable for Ms. Miller's injuries.

With respect to § 344 of the Restatement (Second) of Torts, we disagree. ³ Section 344 reads as follows:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Comment f to § 344, which addresses the issue of foreseeability, serves to limit the landowner's liability:

f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

However, as the trial court noted in its opinion denying Loblaws' motion for judgment n.o.v., comment c to § 344 controls the issue before us. Comment c reads as follows:

c. Independent contractors and concessionaires. The rule stated applies to the acts of independent contractors and concessionaires who are employed or permitted to carry on activities upon the land. The possessor is required to exercise reasonable care, for the protection of the public who enter, to supervise the activities of the contractor or concessionaire, including the original installation of his appliances and their operation, and his methods.

(Emphasis...