Wiggin v. Kent McCray of Dover, Inc.

• Decision Date: 30 April 1969
• Docket Number: No. 5818,5818
• Parties: Carroll WIGGIN, Administrator, Estate of Blanche Wiggin v. KENT McCRAY OF DOVER, INC., and Dover Shopping Plaza, Inc. Carroll WIGGIN v. KENT McCRAY OF DOVER, INC., and Dover Shopping Plaza, Inc.
• Court: New Hampshire Supreme Court

Page 418

252 A.2d 418

109 N.H. 342

Carroll WIGGIN, Administrator, Estate of Blanche Wiggin v. KENT McCRAY OF DOVER, INC., and Dover Shopping Plaza, Inc.

Carroll WIGGIN v. KENT McCRAY OF DOVER, INC., and Dover Shopping Plaza, Inc.

No. 5818.

Supreme Court of New Hampshire.

Argued Feb. 5, 1969.

Decided April 30, 1969.

SYLLABUS BY THE COURT

1. A corporate owner of a shopping plaza was held to have breached no duty owed to a business invitee of a lessee store who sustained injury while exiting through an automatic door leading from such store as the alleged result of negligent maintenance of the operational facilities of the door, in the absence of evidence that the owner ever maintained or exercised any control over the door or had any knowledge that it operated improperly, or that the door served as a common entrance to other lessee establishments within the plaza.

2. In an action for personal injuries sustained as the result of a malfunctioning automatic door, expert opinion as to the cause of the malfunction as disclosed by the witness' inspection subsequent to the accident was properly admitted where the jury could find on the evidence that the condition of the door and operating devices on the day of the inspection was the same as upon the day of the accident.

3. General objections to the admission of testimony of certain witnesses without request for limitation of the evidence or cautionary instruction, presented no questions of law to the Supreme Court.

4. Objection to certain pamphlets admitted in evidence, on care and maintenance of automatic doors, which furnished a rational basis for an expert's opinion on what caused the doors to malfunction went to the weight of the evidence rather than its admissibility.

5. A verdict of $35,000 for personal injuries, sustained by a sixty-four year old plaintiff with a life expectancy of 13.9 years, consisting of a broken hip and shoulder and a severe blow to head, resulting in permanent disability and aggravation of arthritis was held not to be manifestly exorbitant as a matter of law.

6. So also a verdict of $22,000 in such case to the husband for medical expenses and loss of consortium was warranted by the evidence where the special damages were $3,500 and the wife who had been capable of caring for his home and comfort became an invalid and would findably remain crippled for the balance of her life as a result of the accident.

Actions on the case to recover for personal injuries suffered by Blanche Wiggin and consequential damages suffered by her husband Carroll Wiggin. These suits arose from an accident which happened on December 18, 1963, involving an automatic door in a store operated by the defendant Kent McCray of Dover, Inc. under lease from the owner, defendant Dover Shopping Plaza, Inc. Originally, the K & R Corporation and the Pittsburgh Plate Glass Company were also named as defendants. At the close of the plaintiffs' evidence, motions for nonsuits were granted as to all defendants except Kent McCray.

A trial by jury resulted in a verdict for the plaintiff Blanche Wiggin for thirty-five thousand dollars ($35,000) and for her husband Carroll Wiggin in the amount of twenty-two thousand dollars ($22,000). During the trial, the defendant Kent McCray excepted to the denial of its motions for nonsuits and directed verdicts and to certain evidentiary and other rulings of the Court. After the verdicts, the defendant Kent McCray excepted to the denial of its motions to set aside the verdicts, and of its motions for judgments, notwithstanding the verdicts.

The plaintiffs excepted to the granting of nonsuits in their actions against the defendant Dover Shopping Plaza, Inc.

The questions of law presented by these exceptions were reserved and transferred by the Presiding Justice, Grant, J.

Burns, Bryant, Hinchey & Nadeau, Paul Cox, Dover, for plaintiffs.

Sheehan, Phinney, Bass & Green and E. Paul Kelly, Manchester, for defendant Kent McCray of Dover, Inc.

Devine, Millimet, McDonough, Stahl & Branch, Shane Devine, Manchester, for defendant Dover Shopping Plaza, Inc.

PER CURIAM.

The accident happened on December 18, 1963, when the plaintiff Blanche Wiggin, who had been shopping in the store of the defendant Kent McCray, attempted to exit through the automatic door. She testified that at first it stuck, then when she stamped upon the mat, it began to open. Before she could get out, it closed and locked, pinning her against the frame. She endeavored unsuccessfully to open it. Suddenly the mat and door began to shake and then the door swung violently open, striking her on the head and hurling her out onto the sidewalk, fracturing her left shoulder and hip and causing her to be 'all black and blue.'

We first consider the plaintiffs' exception to the nonsuit granted to the defendant Dover Shopping Plaza. The issue here is whether there was evidence to sustain a finding that this defendant breached any duty which it owed to the plaintiff. Cote v. Litawa, 96 N.H. 174, 176, 71 A.2d 792, 18 A.L.R.2d 216; Gossler v. Miller, 107 N.H. 303, 305, 221 A.2d 249. This in turn depends on whether the Shopping Plaza had the right to control, or maintained or exercised any control, over the automatic door. Black v. Fiandaca, 98 N.H. 33, 35, 93 A.2d 663; Paine v. Hampton Beach, etc., 98 N.H. 359, 364, 100 A.2d 906. The basis of the plaintiffs' claim was that the malfunctioning of the door, which was electrically activated and hydraulically operated, was caused by lack of due maintenance. They claimed that the door, and especially the area of the mat in front of the door, was not properly serviced or maintained and was not kept clean. The result was that dirt worked under and between the layers of the mat, resulting in the door's erratic and improper operation. The plaintiffs' expert so testified. No expert testimony was presented to contradict this opinion as to the cause of the accident.

The transcript is barren of evidence that the defendant Dover Shopping Plaza ever maintained or exercised any control over the door, nor was there any testimony that it ever received any complaints about the door or requests to inspect, repair or maintain it prior to the accident. Nor did it have any knowledge before December 18, 1963, that the door was not operating properly. The plaintiffs' argument that it was admitted at the pretrial that the plaintiff was an 'invitee' of this defendant at the time of the accident is not sustainable. The relevant part of the pretrial order reads as follows: '2. Kent McCray at the time operated a store selling goods to the general public and Blanche Wiggin was on the premises as a business invitee.' This obviously means an invitee of the defendant Kent McCray and not the defendant Plaza. The fact that the Plaza owned the shopping area where the store and a bowling alley were located, and to which it is claimed that this defendant invited patrons, does not help the plaintiffs' cause. The offending door was not used in common with the entrances to, or the exits from the bowling alley. Thus such cases as Frear v. Manchester Traction, Light & Power Company, 83 N.H. 64, 139 A. 86, 61 A.L.R. 1280, and Manning v. Leavitt Company, 90 N.H. 167, 5 A.2d 667, 122 A.L.R. 249, relied upon by the plaintiff, are inapposite.

The plaintiffs' position that the lease from Plaza to McCray gave rise to obligations on the part of Plaza to the plaintiffs also is not sustainable. The pertinent portions of this involved and lengthy document read as follows:

'7(A). Tenant agrees that it will make all repairs and alterations to the property which tenant is required to maintain, as hereinafter set forth, which may be necessary to maintain the same in as good repair and condition as the same are in at the commencement of the term of this lease except for structural defects * * *. The property which Tenant is required to maintain is the interior of the demised premises, including without limitation, the heating and air-conditioning systems, all doors * * *.' (Emphasis supplied.)

'(B). * * * The property which Landlord is required to maintain is the foundation, the roof, the exterior walls, the marquee, if any, and the structural parts of the demised premises, and all common areas and common facilities of the Shopping Center, and, to the extent not included in the foregoing, all utilities, conduits, fixtures and equipment serving the demised premises and other premises in the Shopping Center in common and located within the Shopping Center, including, but without limitation, sub-floors, window frames but excluding all plate glass and doors except if caused by Landlord's agents, servants or employees * * *.' (Emphasis supplied)

'(C). Notwithstanding anything herein contained to the contrary it shall be the obligation of Landlord to make all repairs and alterations (other than those required as a result of fault or negligence of Tenant or any sub-tenant or concessionaire of Tenant or the agents of any of them or as the result of repairs, alterations, other improvements or installations made by Tenant or any sub-tenant or concessionaire of Tenant or the agents of any of them) to the property which Tenant is required to maintain which may become necessary during the first full calendar year after the completion of landlord's construction work * * *.' (Emphasis supplied.)

The Trial Court ruled that under this lease the control and the duty to maintain the door rested with the defendant Kent McCray. It is axiomatic that the final interpretation of all written instruments is for this court. Pettee v. Omega Chapter, 86 N.H. 419, 170 A. 1; 171 A. 441; Aldrich v. Charles Beauregard & Sons, 105 N.H. 330, 336, 200 A.2d 14. As we interpret the lease, responsibility for the maintenance of the door was that of the tenant, Kent McCray, which was also charged with any repairs of the door which might be required, except for a limited period at the commencement of the term, during which...