Brancato v. Kroger Co., Inc.Brancato v. Kroger Co., Inc.
This is an appeal from the judgment entered by a court en banc of the Court of Common Pleas of Allegheny County denying appellants’, Mildred and Carmen Brancato’s, Motion For A New Trial. We affirm.
The instant case arose on April 28, 1973 as the result of an injury sustained by appellant, Mildred Brancato, when she was struck in the back by the opening of an automatic door as she reaсhed for trading stamp books situated near the entrance to Kroger’s Supermarket in Glannon’s Shopping Center, Allison Park, Pa. After a trial by jury, a verdict was entered finding both parties (Mildred Brancato and Kroger) negligent. 1
On June 8, 1981, appellants’ trial counsel filed a Motion For A New Trial, wherein he alleged that the verdict was
Following аrgument and consideration of briefs, the court en banc (per Judges Farino and Zappala) denied appellants’ Motion For A New Trial by Order dated April 28, 1982. This appeal followed.
Appellants’ counsel presents us with three issues to review; to-wit:
“I. THE JURY VERDICT WAS TAINTED IN THAT ONE OF THE JURORS COMMUNICATED WITH THE PLAINTIFF, MILDRED BRANCATO, DURING THE COURSE OF THE TRIAL.
II. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY THAT, WHERE A LATENT DANGER EXISTS, IT IS NEGLIGENT FOR A POSSESSOR OF LAND TO INDUCE A FALSE SENSE OF SECURITY IN ANOTHER.
III. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT WHERE EYE-CATCHING GOODS ARE DISPLAYED IN A STORE THEN A PATRON MAY BE EXCUSED FROM NOT NOTING AN UNGUARDED HAZARD.”
To start with, our examination of the record reveals that appellants’ trial counsel submitted 12 hand-written points for charge. Of these, Points #1, #3, #6 and # 7 were specifically denied. (Record No. 54) However, as mentioned previously
{see supra
note 2), appellants’ trial counsel took exception only to the court’s refusal to read Point # 2 in its entirety after the jury had been instructed.
In making a ruling on the question of waiver regarding the two specific points fоr charge, we look for guidance to
Broxie v. Household Finance Co.,
“It has long been the law in this Commonwealth that in order to preserve for appellate review an issue concerning the correctness of a trial court’s charge to the jury, the complaining party must submit a specific point for charge or mаke a timely, specific objection to the charge as given. E.g., Lobalzo v. Varoli,422 Pa. 5 ,220 A.2d 634 (1966); Bell v. Yellow Cab Co.,399 Pa. 332 ,160 A.2d 437 (1960). See also Commonwealth v. Sisak,436 Pa. 262 ,259 A.2d 428 (1969). The only exception to this general rule was where a trial court’s charge involved basic and fundamental error, but this exception was formally abrogated in Dilliplaine v. Lehigh Valley Trust Co., [supra]. See also Commonwealth v. Clair,458 Pa. 418 ,326 A.2d 272 (1974).” (Emphasis added) Id.,472 Pa. at 377 ,372 A.2d at 743 . Accord Atherholt v. Interstate Energy Co.,35 Pa.Cmwlth. 289 ,386 A.2d 167 (1978); but see Commonwealth v. Rineer,310 Pa.Super. 241 ,456 A.2d 591 (1983).
Consistent with the preceding, we note that Pa.R.Civ.P. 227(a) reads:
“(a) It shall not be necessary on the trial of any action or proceeding to take exception to any ruling of the trial judge. An exception in favor of the party against whom the adverse ruling was made shall be deemed to havebeen taken with the same force and effect as if it had been requested, noted by the official stenographer and thereafter written out, signed and sealed by the trial judge.”
In light of the aforesaid, we find no merit to appellee’s counsel’s contention that “[n]one of the issues raised by the Brancatos should be addressed by this Court for the Brancatos failed to preserve or raise the issues at the time of trial.” (Appellee’s Brief at 9) Contrary to appellee’s counsel’s recounting of what transpired below, we find that appellants' trial counsel submitted 12 points for charge, 4 of whiсh (numbered 1, 3, 6 and 7) were denied by the trial court. Thus, we hold that the Brancatos “in fact had a specific exception on th[ese 4] point[s] for charge ----”
Atherholt v. Interstate Energy Co., supra,
Turning to the issues at hand, we see that appellants’ argument number II alleges that the trial judge should have instructed the jury (on their requested Point # 1) “that, where a latent danger exists, it is negligent for a possessor of land to induce in its business visitors a false sense ... of security.” (Appellants’ Brief at 10) In other words, appellants’ assert that Kroger’s placement of the trading stamp books so near to the automatic door “had created a latеntly dangerous situation” so as to entitle them to the requested point for charge. We disagree.
To gain entrance to Kroger’s, one would have to go through two doors, both of which automatically opened inward and to the right when a person stepped on the sensitized mats that activated the hydraulically operated doors. The distance between the first outer door and the second inner door was approximately five feet. When one passed through the second door, there was a four-foot long railing to the right that stood about “hip” high. Also, there
Appellants’ argument number III, regarding the claim that they were entitled to а charge that the eye-catching goods (trading stamp books) on display excused Mrs. Brancato from not noting an unguarded hazard, is no more persuasive than the previous one. Since we have concluded that the evidence did not establish the existence of a “hazard,” it would be incongruous to hold that appellants should have been granted the requested point for charge.
See Auerbach v. Philadelphia Transportation Co., supra.
As counsel for the appellee’s notes in his brief to this Court, the instant case is more akin to
Bream v. Berger,
“ ‘ “No person is required to take extraordinary precautions to save adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness and carelessness. * * * 'Everyone has a right to proceed upon the assumption that those to whom he owes a duty of care are normal in every respect and prepared on their part to exercise the care of prudent persons generally’”. Jefferson v. Y.M.C.A.,354 Pa. 563 , 567,47 A.2d 653 , 655.
* * * * # ¡K
‘ “What this court stated in Bailey v. Alexander Realty Co.,342 Pa. 362 ,20 A.2d 754 , 756, applies to the instant case: * * * When an individual can assure his own safety by the use of his senses, he must do so or abide the consequences of his carelessness. * * * The duty of availing oneself of one’s senses, for self-protection can seldom be breached with physica[l] impunity and never with legal sanction. * * * ’
‘ “A person may not recover for injuries which are received as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed”: Boock v. Acme Markets Inc.,347 Pa. 501 , 503,32 A.2d 759 , 760; Rogers v. Max Azen, Inc.,340 Pa. 328 ,16 A.2d 529 .’
The well established rule that a victim cannot recover damages for injuries sustained by him if he could have avoided the injury by the exercise of ordinary care bars this plaintiff’s recovery.
This is not the case of a hidden danger, or of a danger that was obscured by another pedestrian, or by a worn or slippery or defective doorstep; this regrettable accident was caused by plaintiff’s thoughtlessness, carelessness or inattention.” Id.,388 Pa. at 436 ,130 A.2d at 709-710 .
In the case at bar, Mrs. Brancato was not unaware of the fact that her stance, in between the railing and the second
“At the main floor level the stairway [leading to the basement] is bound on the north by the north wall, on the east by tables, shelving displays, and a drinking fountain, and on the south by the mop, broom, and brush display rack. Because of the location and surrоundings, the stairs are not generally visible from the front of the store or the side but only from a position almost directly in front of the entrance to the stairway. The brush display runs along one side of the stair well opening, thereby concealing the entrance of the stairway from the view of anyone approaching in the manner of the wife-plaintiff. The stairs rise sharply and lead to the basement which is used only for storage purposes. The basement was not lighted; there were no signs or warnings indicating the presence of the stairway, and there was no barrier across the top of the stairway. Although she had been in the store numerous times, wife-plaintiff was not aware of the existence of the stairway.”191 Pa.Super. at 174-75 ,156 A.2d at 543-544 .
Instantly, unlike in
Hallbauer,
wife-appellant was cognizant that her pоsition in the supermarket (behind the second incoming door) rendered her vulnerable to sustaining injury
Lastly, appellants’ aver that the verdict was tainted by juror # 6 purportedly inquiring, during a recess, as to wife-appellant’s physical condition. The wife-appellant allegedly gestured with her hands and said, “I cannot talk about it.”
The court en banc, after initially noting that such an accounting rendered the incident harmless to appellants’ case, then stated that appellants’ failure to call the exchange to the court’s attention befоre the trial concluded, resulted in it “no longer [being] a matter of inquiry.” (Lower Court Opinion at 2) We agree, in part, with the court en banc.
First, we deal with the question of whether inquiry into the propriety of the alleged communication between a juror and Mrs. Brancato was preserved for post-trial and appellate review. The court en banc (with Zappala, J., cоncurring in the result) and appellee’s counsel opine that such an issue was not properly preserved for review. We think otherwise.
As recounted earlier in this Opinion, appellant’s trial counsel filed post-trial motions, but prior to the hearing scheduled to argue them, he submitted a Petition For Withdrawal As Counsel. The granting of this Petition necessitated the rescheduling of the argument to hear post-trial motions so as to afford appellants the opportunity to secure
Given the rather fortuitous withdrawal of trial counsel before the litigation had come to a close—at least at the post-trial level—we hold that new counsel’s submission of an amended motion raising the issue now before this Court was sufficient to preserve it below and on appeal for our review.
See Pittsburgh National Bank v. Mutual Life Insurance Company of New York,
In
Printed Terry Finishing Co. v. City of Lebanon,
“If, however, contact between an officer of the court and a juror should occur, ‘it is not required that [the parties] be curt or lacking in the customary amenities of social intercourse....’ Pessin v. Keeneland Association,298 F.Supp. 593 , 599 (E.D.Ky.1969). Such contacts, however, must not be of such a nature as to cast suspicion upon the integrity of the jury verdict. Thus, the Supreme Court of the United States, in Mattox v. United States,146 U.S. 140 ,13 S.Ct. 50 ,36 L.Ed. 917 (1892), pronounced that:
‘Private communiсations, possibly prejudicial between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.’ Id. at 150,13 S.Ct. at 53 .
We therefore agree with the statement of the court in California Fruit Exchange v. Henry, 89 F.Supp. 580 , 588-89 (W.D.Pa.1950), that:
‘The courts look with suspicion upon any communications between parties to a suit or their counsel and the jury impaneled to try it; and if such communication is hаd and it appears that a conversation was had about the suit, or the communication is not explained satisfactorily, it will, in itself, be ground for a new trial. If, when explained, however, it can be seen in the communication nothing was said about the case and nothing was done for the purpose of influencing the mind of the jury, and that the communication or conversation had no influence on the verdict which was reached, nо ground exists to set the verdict aside for the reasons that said comment could not have been prejudicial.’ ” (Emphasis in original) Id.,247 Pa. at 298-99 ,372 A.2d at 471 .
Based on the preceding, we are not in accord with appellants’ counsel’s assertion that “[w]hat we have here is an issue that would per se have required reversal if previous counsel had timely brought it to the attention of the trial cоurt.” (Appellants’ Brief at 8)
Albeit the trial court should have had its attention called to the occurrence, we do not find, in light of the facts at bar, that the alleged response (“I cannot talk about it”) by Mrs. Brancato to a juror’s inquiry as to her physical condition is so infested with prejudice that the law clearly demands that a new trial be granted. Rather, we observe that wife-appellant offers no proof of prejudice other than the mere happening of the incident, and a review of the record does not disclose that an impression was made on the minds of the jury, if any, which was not overcome by the trial judge’s instructions as to the law the jury was to apply in making its determination.
See Paustenbaugh v. Ward Baking Co.,
Judgment affirmed.
Notes
. A compulsory non-suit was granted by the trial court as to eaсh of the additional defendants (The Stanley Works, JED Products and S & E Associates); none of whom is involved in the present appeal.
. Counsel for appellants requested Point # 2 reads in toto:
"2.) A possessor of land owes to a business visitor the duty of reasonable care for his protection and safety, that is, to keep the premises in a reasonably safe condition and if there be any defects or unsafe areas known or disсoverable by the exercise of reasonable care and diligence, to warn business invitees of these dangers. Miller v. Hickey,368 Pa. 317 at 324 [81 A.2d 910 ].”
To the left of the margin and in juxtaposition to Point # 2, the court had written "granted.” However, at trial the court did not read Point # 2 in its entirety; as a result, the following exchange occurred after the jury had been instructed:
"[THE COURT:] ... Do the attorneys wish to discuss anything with the Court beforе I send the jury out?
A A A A A A
MR. DUERRING [Appellants’ trial counsel]: Your Honor, I believe you will find Point 2 here as to the second aspect of it that if there are any defects or unsafe areas that the defendant or defendants could have conceivably known about, that they would have a duty to at least warn the customers that they existed.
THE COURT: I’ll overrule that.” (RR. 28 & 30)
We need not discuss the propriety of the court’s ruling on this point, for it is not raised on appeal.