Pushnik v. Winky's Drive-In Restaurants, Inc.

• Citation: 242 Pa.Super. 323,363 A.2d 1291
• Parties: Anthony PUSHNIK v. WINKY'S DRIVE IN RESTAURANTS, INC., a corporation, et al., Appellants, v. Walter J. SMITH et al. Appeal of JIFFY STEAK COMPANY.
• Decision Date: 27 September 1976
• Court: Superior Court of Pennsylvania

363 A.2d 1291

242 Pa.Super. 323

Anthony PUSHNIK v. WINKY'S DRIVE IN RESTAURANTS, INC., a corporation, et al., Appellants, v. Walter J. SMITH et al.

Appeal of JIFFY STEAK COMPANY.

Superior Court of Pennsylvania.

September 27, 1976.

[Copyrighted Material Omitted]

James F. Manley, Pittsburgh, for appellant in No. 285.

W. Arch Irvin, Jr., Pittsburgh, for appellant in No. 299.

George A. Conti, Jr., Edgar P. Herrington, Jr., Patrick R. Riley Costello & Berk, Greensburg, for appellee.

PRICE, Judge.

Defendant-appellant Winky's Greensburg, Inc. (Winky's), operates a restaurant at the intersection of Route 119 and Huff Avenue in South Greensburg, Pennsylvania. In 1969, the food-service aspect of Winky's operation could have been characterized by its efficiency. All food was prepared 'to go.' No tables or seats were provided for patrons. A diner had the option of partaking of his repast while seated in his automobile in the parking lot provided by Winky's or of taking his meal elsewhere. Orders were placed by entering a glass-enclosed anteroom in front of the building. There, the customer approached a window over a stainless steel counter and gave the order to a waiting clerk. The clerk placed the ordered items in a bag, the customer paid his bill, and the transaction was completed.

On the fateful day of March 23, 1969, plaintiff-appellee Anthony Pushnik entered the glass-enclosed anteroom and ordered a meal. At the same time, defendant Walter J. Smith had just finished his meal while seated in his automobile, and was preparing to depart. Smith's automobile was parked directly in front of the glass-enclosed room. Smith testified that he started his automobile, and, due to some slippery matter on his right shoe, his foot slipped from the brake to the accelerator. The automobile responded instantly, crashing through the glass enclosure and pinning Mr. Pushnik against the stainless steel counter. Mr. Pushnik, no match for his two steel oppressors, suffered severe injuries.

Mr. Pushnik filed a suit in trespass against Winky's, Winky's Drive In Restaurants, Inc., and Saralouise F. Rose (now Saralouise F. Hirshberg). Winky's joined Nathan Cantor and Walter Smith as additional defendants. Mrs. Hirshberg joined Smith, Cantor, and Jiffy Steak Company (Jiffy) as additional defendants. ^[1]

At the close of appellee's case, the lower court granted compulsory nonsuits in favor of Mrs. Hirshberg and Winky's Drive In Restaurants, Inc. The case then proceeded to conclusion and a jury awarded appellee a verdict of $75,000.00 against Jiffy, Winky's, and Smith. The jury found in favor of Nathan Cantor. Jiffy and Winky's have appealed the judgments entered on the verdicts against them. Mr. Smith is not a party to this appeal.

Appellee based his cause of action against Jiffy and Winky's on the theory that the appellants negligently failed to warn him of a dangerous condition existing on the land or to put the premises in a reasonably safe condition. See Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970); Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). Appellee charges that the appellants were placed on notice of the dangerous condition of the property by the fact that two similar accidents had occurred in the past, one in 1966 and one in 1967. ^[2] Appellee contends that once appellants were notified of the dangerous condition, they were under a duty, at least, to take some precaution against future accidents, such as erecting a barrier between the parking lot and the glass enclosure.

Appellants contend that the lower court erred in denying their motions for judgments N.O.V. because, even assuming negligence on their part, they cannot be held liable because their conduct was not the proximate cause of appellee's injuries. More specifically, Jiffy contends that the sole proximate cause of the accident was the negligence of the driver, Smith, while Winky's contends that Smith's conduct was a superseding cause of the accident.

This court recently had the opportunity to examine similar arguments in Noon v. Knavel, 234 Pa.Super. 198, 339 A.2d 545 (1975). In that case, the plaintiff was injured while making a telephone call when an uncontrolled automobile careened through the telephone booth that he was occupying. The plaintiff sued, Inter alia, the owner of the booth, General Telephone Company of Pennsylvania, charging that the defendant had been negligent in locating its booth in a dangerous area. The defendant appealed a judgment in the plaintiff's favor, contending in the alternative that its conduct was not the cause of the plaintiff's injuries, and that the automobile driver's negligence was a superseding cause of the injuries. This court, interpreting the applicable law as stated by the Supreme Court of Pennsylvania, rejected both arguments.

Applying the same principles of law utilized in Noon v. Knavel,supra, it must first be determined whether appellants' conduct was a substantial factor in bringing about the appellee's harm. Restatement (Second) of Torts § 431 (1965); Flinkinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). To have been so, appellants' conduct must have been a factual cause of the harm. Restatement (Second) of Torts § 432(1) (1965); Noon v. Knavel,supra.

In this case, appellants do not contest the fact that their negligence was a factual cause of the harm, nor could they do so. It cannot be said that appellee would have sustained the same harm if appellants had not been negligent. For example, if appellants had erected a barrier in front of the building, it is probable that the harm would not have been sustained. Thus, appellants' conduct was a factual cause of appellee's injuries.

Once it is determined that appellants' conduct was a factual cause of the harm, whether the conduct was a substantial factor in bringing about the harm is, under these circumstances, interrelated with whether any of the other factual causes were superseding causes. If appellants' conduct was the only factual cause of the harm, then, obviously, it was a substantial factor in causing the harm. Only if some other cause was a superseding cause can appellants' conduct be said to have not been a substantial factor. Therefore, we must next consider appellants' argument that Smith's conduct was a superseding cause of the harm.

The law of superseding cause is related in Restatement (Second) of Torts §§ 440--61 (1965). As in Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975), and Noon v. Knavel, supra, §§ 447 and 449 are determinative of the issue in this case. § 447 provides:

'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

(c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.'

§ 447 is aided in its application by § 449:

'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally or criminal does not prevent the actor from being liable for harm caused thereby.'

Here, appellee alleged and a jury found that appellants were negligent because they failed to take precautions against the likelihood that an automobile would crash through the front of their restaurant. That type of accident had occurred twice prior to the accident in which Mr. Pushnik was injured, and it was the very foreseeability of another such accident which made negligent appellants' failure to act.

Because the failure to protect against that risk is exactly the element of appellants' conduct that was negligent, appellants cannot now contend that the fruition of their negligence was superseded by the negligence of another. The likelihood that an automobile would crash through the glass enclosure, whether due to negligence or mere happenstance, is exactly what made appellants' conduct itself negligent. Restatement (Second) of Torts §§ 447, 449 (1965); Miller v. Checker Yellow Cab Co., supra; Noon v. Knavel, supra.

Jiffy also contends that it is not liable because, as a matter of law, it was not in control of the premises where the accident occurred. Jiffy contends that Winky's had sole and exclusive possession of the premises and that Winky's and Jiffy are separate legal entities. There can be no doubt that Winky's and Jiffy are separate corporations, and if Jiffy had been able to establish that it was not in control of the premises, we would have to concede to Jiffy's argument. However, it is abundantly clear from the record that the division of control between Jiffy and Winky's was anything but definite.

The testimony of Harold Erenstein, executive vice-president of Jiffy, revealed that Jiffy leased the land for Winky's from Mrs. Hirshberg and then sub-leased the land to Winky's. Jiffy hired and paid the architect and contractor responsible for building Winky's. Subsequent to the time of the accident, a decision was made to alter the structure of Winky's to provide seating space for customers in the restaurant. That decision was made and the alterations were paid for by Jiffy.

In addition, Jiffy employed supervisors who made periodic inspections of Winky's. The supervisors were responsible for hiring,...