Calhoun v. Jersey Shore Hospital
378 A.2d 1294
Pa. Super. Ct.
1977
Check Treatment

*1 L.Ed.2d 368 shall postpone we its resolution until it is crucial to the case.

The judgment is vacated sentence and record remanded to the lower court instructions permit to withdraw his appellant plea.

WATKINS, JACOBS, J., President Judge, concur in the result. VOORT, JJ.,

PRICE and VAN der dissent. A.2d Dorothy CALHOUN HOSPITAL, Appellant. JERSEY SHORE Superior Court Pennsylvania.

Argued Dec. 1976. Decided Oct. *2 Candor, with him Williamsport, M. Humphrey, John Gault, appellant. for Williamsport, & Gibson Youngman, for Jr., Williamsport, appellee. L. Greevy, Lester JACOBS, and WATKINS, Judge, President Before YOORT, and PRICE, der VAN HOFFMAN, CERCONE, SPAETH, JJ.

SPAETH, Judge: an Dorothy Calhoun filed action in trespass against Jersey Shore that as Hospital alleging a result the hospital’s negligence she had fallen in the and suffered hospital inju- ries back and The right leg. case was tried before a following jury, denial motion for hospital’s verdict, nonsuit and directed compulsory returned a verdict for Mrs. $12,000. Calhoun the amount of The hospital filed a motion for non obstante veredicto judgment denied, or new trial. The motion was and this appeal followed.

-1 The contends that the lower court should for granted judgment its motion n.o.v. n.o.v., a motion considering judgment for the evi- dence, together all reasonable inferences capable *3 therefrom, being drawn light must be viewed in the most favorable to the verdict Flickinger winner. Estate v. 69, Ritsky, 452 Pa. 305 40 The A.2d court must find and consider only that evidence which supports verdict, and all conflicts must resolved favor of the v. Ford Motor prevailing party. Moyer 205 Pa.Super. 384, 43, refused, 209 A.2d allocatur 205 xxxvii Pa.Super. case, therefore, ... In the this present evidence, Court must consider whether the reviewed in the of light these can in a principles, support finding any way against appellant. liability Inc., Winkler v. Farm, Pa.Super. 641, Seven 240 Springs 643-644, 440, 441 (1976).

Mrs. Ruth E. Muhtler testified as follows. On April 1974, at p.m. about 2:00 she a friend who visited was patient on the second floor of the hospital. She observed that in front of her friend’s room hallway being was wet-mopped, and that the was cleaning progressing woman down the room, hall the direction of the next where Mrs. Calhoun’s a patient. husband was The floor was being from wall wet-mopped to wall and no dry spots were appar- ent. N.T. 124. In order to enter the room Mrs. Muhtler walked wet on the floor and almost on her “tramped [the in, 5. went mentioned cleaning mop.” N.T. She woman’s] friend, to that condition the floor her and remarked “it would be a if someone didn’t fall.” N.T. 5. No wonder later, more than two Mrs. Muhtler heard a minutes commo- tion in hallway. out of the room and saw stepped She Mrs. Calhoun 6. helped up off the floor. N.T. being room,

Mrs. left Calhoun testified as she her husband’s Brest, she hall accompanied by up Reverend started N.T. the floor. 39-40. suddenly Hill, housekeeper, executive tes- hospital’s Charles M. posted tified are whenever a warning signs always up. in the is or even when a is cleaned spill hospital mopped, and Mrs. Calhoun testified N.T. 91-92. Muhtler N.T. warning signs. not see they any did of Mrs. gist it be seen that may From this testimony had negligently was that the complaint Calhoun’s condition unreasonably dangerous her an failed to warn Restatement such condition. See or from protect Torts (Second) A.2d Lange, Lenkiewicz v. de- Hoffman (1976) Judge (concurring opinion), Court, Supreme quoting

scribed a burden plaintiff’s as follows: law, that necessary Pennsylvania is not under

“[I]t liability; point unerringly fact or circumstance every say facts for the be sufficient that there enough . liability. favors preponderance reasonably *4 whether say the court Also, beyond power it is . ‘equal.’ are inferences reasonable two or more upon based case whether any jury are for the The facts con- where a reasonable evidence circumstantial direct or liability on place at which can be arrived clusion substan- produce is duty plaintiff It defendant. he the verdict believed, warrants which, if tial evidence seeks.” 134, v. Telephone

Smith Bell Co. 397 Pa. Pennsylvania, 477, 138, 153 A.2d 480 (1959).

It is the mere of an happening of course true that Shemaka, accident is not evidence of Amon v. negligence. 314, Pa. 214 A.2d 238 is also that It true that more, a floor without is not evidence of v. negligence. Co., Burton Horn & Hardart 371 Pa. Baking 60, however, 88 A.2d 873 general These propositions, are dispositive could, not of this case. Here the and jury did, evidently First, find the following: from Mrs. Muhtler’s testimony, second, was wet and from slippery; Mrs. Muhtler’s and Mrs. testimony, Calhoun’s that Mrs. floor; Calhoun fell on wet and third, and slippery partly by accepting Mr. Hill’s testimony it, and partly by rejecting the hospital knew that when wet the floor became so dangerous it was to walk slippery yet despite this knowledge, hospital failed to put up any warning signs. See Burton v. Horn Baking Co., supra, & Hardart distinguishing Flora et ux. Great Atlantic & Pacific Tea 166, 330 Pa. A. Company, and Brand v. Donahoe’s 357 Pa. Incorporated, 55 A.2d 362 As the dissent acknowledges, necessary is not “[i]t Plaintiff prove with mathematical exactness that the acci- dent could have been caused in only one manner to the exclusion of all possibilities other v. G. C. (Finney Murphy 406 Pa. (1962)), 178 A.2d 719 he but must eliminate those other if causes, were any, as fairly suggested by evidence.” Cuthbert v. Philadelphia, [citations omitted] 263-64 (1965) (emphasis added). Here there no cause fairly suggested Mrs. Calhoun’s evidence other than that the had failed to warn a dangerously wet floor. The did slippery not this accept suggestion, for it did not have to Mrs. accept Calhoun’s evidence. For example, the might have disbelieved Mrs. Calhoun and Muhtler and have believed Mr. Hill Eckenstine, and Rosalie cleaning woman, therefore finding (as Mr. Hill and Mrs. Eckenstine in effect claimed) that since no warning signs had been put *5 572

up, the floor could not been wet. How the evidence however, should be regarded, decide, was for the to for jury as der Judge Van Voort has observed: inconceivable, nonsuit can be entered when it is only

“[A] on reasonable a mind any hypothesis, desiring solely to reach a just proper conclusion accordance with law, the the governing viewing relevant after principles light advantageous evidence in the most to the plaintiff, could in his the in- controlling determine favor issues volved.” 248, 251-2,

McMillan v. Mt. Laurel 240 367 Racing, (1976) A.2d 1107 Borisoff v. Penn Fruit Com- quoting 572, 574, 165 Pa.Super. 69 A.2d 168 pany,

-2- judge also the trial erred in hospital The contends that and that it contributory negligence, on charging jury new trial. The be granted should therefore it had burden charged concedes that judge but it contends that contributory negligence, proving if Mrs. Calhoun showed failed instruct the judge negli- been contributorily her own evidence that she had by not she could recover. gent, out case free not have to make

The does plaintiff equivalent for that would negligence, of contributory Goodstein, v. 438 plaintiff. Argo on the placing burden Peltz, Pa. 783 Heimbach v. 384 (1970); Pa. this effect A.2d 114 An instruction to Davis, v. 408 Pa. error. Stegmuller reversible therefore be Jones, v. 404 Pa. Brown 267, 182 A.2d instruct However, it proper A.2d 831 case, plaintiff’s in the contributory negligence if it finds Jones, supra; Brown v. for the defendant. find should 633, 202 A.2d 48 Motors, Inc., 414 Barclay Nelson not shift effect does to this instruction (1964). An While the defendant. remains which burden proof, contributory establish may case the plaintiff’s from evidence any production without defendant, Lanes, Matteo v. Sharon Hill Inc., 216 Pa.Super. 188, 263 A.2d the burden must remain on the *6 defendant.

At the close of the charge, counsel for the hospital following noted the exception:

Now, the second point that Pm concerned about the charge recollection is that my the contributory negligence is that the Plaintiff’s charge case must be free contributory negligence, and that of the part contribu- tory negligence charge is not included. You placed have Defendant, burden on the preponderance of the by that, evidence to but the prove Plaintiff’s case have may itself, contributory negligence in and and there is no burden for the in Defendant that case.

N.T. 139.

Counsel’s first sentence seems request that the court charge that the plaintiff’s case must be free of contributory negligence; discussed, as has been such a request would be in properly refused. Counsel’s statement his second sen- tence, “Plaintiff’s case have may contributory negligence”, was proper, follow-up, but his “there is no burden for the case”, Defendant in that was not. for the purpose decision, we shall read counsel’s as request statement that the instructed that could find contributory plaintiff’s from the as case as well from the defendant’s. this is the Apparently way the trial judge counsel, statement, understood for following this collo- quy occurred:

THE COURT: You are saying that should they consider

not just your evidence but all the evidence.

MR. GAULT: All the evidence.

N.T. 139. During charge judge must, therefore, said: “You determine whether the Plaintiff was negligent, that as an prudent ordinarily person, under all of the circumstances present, she failed to exercise reasonable care for her own protection.” N.T. 134 (emphasis added). Later in the “If, said:

charge judge after all considering evidence, are not you unable decide whether or a fact not, occurred or then you resolve that issue against person having burden of on that proof N.T. It (emphasis added). issue.” therefore appears that counsel’s that the be instructed to consider request all of the evidence was with. complied

Affirmed.

PRICE, J., opinion. a dissenting files PRICE, dissenting: Judge, Calhoun visited appellee Dorothy

On April was ac- Hospital. at Shore She appellant Jersey husband Robert Brest. walking the Reverend While companied *7 room, Mrs. Calhoun the after her husband’s hallway leaving A awarded right leg. fell and her back and injured I re- $12,000.00 a of the would against appellant. verdict because the evidence the of the lower court judgment verse action for negligence establish a cause of insufficient to the against hospital. Muhtler, testified neighbor, next door appellee’s

Mrs. Ruth and Clarence daughter she visited her on April At Hospital. approx- Shore Groover, Jersey both at patients As she room. Mr. Groover’s 2:00 she entered p.m., imately was of the employee that an so, did she noticed remarked prophetically and she hallway, “wet-mopping” didn’t if someone “it be a wonder would to Mr. Groover in later, heard commotion Mrs. Muhtler Minutes fall.” and observed Mr. room left Groover’s She hallway. had fallen. where she the floor helped from being Calhoun the condition signs warning no had observed Mrs. Muhtler floor. left and Mrs. Calhoun that as he testified Brest Reverend He not know fell. did room, Mrs. Calhoun Mr. Calhoun's was the floor testified Mr. Brest her fall. cause of that, smooth, and and very shiny “I walk wouldn’t on a that, floor like as I normally walk other floors because it to me gave appearance just wouldn’t you walk on it normally.”1 it— Mrs. Calhoun also testified the smooth and condi- shiny tion of the floor. She did not testify that the floor was nor did she slippery, testify to the cause of her fall. denied, After a motion for was compulsory non-suit appel- lant’s case presented. Testimony was elicited that the hospital floor was made of asbestos. It was main- vinyl tained at the time of Mrs. Calhoun’s with a injury product called which was an “Vintage,” institutional waxing agent and cleaner with non-skid properties. A floor maintained or a similar Vintage product, even when would be less than an slippery unmaintained floor. Eckenstine,

Rosalie for clean- housekeeper responsible ing and maintaining fell, which Mrs. upon Calhoun testified that she had no of the independent recollection events April she testified that was the hospital’s deviated, strict from which policy, she never erect in a cautionary signs that was hallway being cleaned.

Appellee’s theory of liability this case is that appellant to warn negligently failed her of an unreasonably dangerous or put condition premises in safe condi- reasonably tion. Restaurants, Pushnik v. Inc., See Drive Winky’s 323, 363 A.2d Restatement (Second) court, Torts Recently, supreme Inc., Gilbert Korvette’s 327 A.2d 94 *8 clarified the law in which has Pennsylvania long permitted the elements of a cause of action for negligence to be established by circumstantial v. evidence. Cuthbert Phila- 417 delphia, 610, (1965); Pa. 209 A.2d 261 Smith v. Bell Co., 397 Telephone 134, Pa. 153 A.2d 477 v. Paul Bros., Inc., Hess 92, 226 Pa.Super. 65 (1973). 312 A.2d In building a framework with which to analyze the issues case, in this it is useful preliminarily to examine and distin- However, Reverend slippery. Brest also testified that the floor was testimony subsequently this was stricken when Reverend Brest ad- mitted that he had no basis for such a conclusion. 576 cases, a

guish parallel products situation. In is liability of a is well established evidence malfunction circum- Drilling stantial of a defect. Cornell v. Ford proof Co. Co., Pa.Super. (1976). 241 359 A.2d 822 This is Motor an inanimate does not malfunction product normally because in the absence of a defect. v. Ford Motor MacDougall 214 257 (1969). A.2d 676 this rule Pa.Super. permit of evidence does not an accident to circumstantial do proof Unfortunately, happen. of accidents negligence. Therefore, courts have Pennsylvania properly required to prove evidence an accident negligence. more than of no of an accident is evidence of mere happening “[T]he presumption negligence.” and does not raise negligence Farm, Inc., 641, 647, 240 Pa.Super. v. Springs Winkler Seven “of a kind The event must be 359 A.2d negli- absence of does not occur ordinarily which D.(l)(a) (1965). of Torts 328 (Second) gence.” Restatement § Shemaka, See also Amon v. 214 A.2d evidence, plain- circumstantial by causation prove To with mathematical “prove tiff need not exactness manner to the been caused one only accident could . . he must all other . but possibilities exclusion of causes, any, if as were fairly suggested those other eliminate Philadelphia, v. . . .” Cuthbert the evidence . by cannot be 614-15, 209 A.2d at 263-64. Pa. at “[A] and not speculation a verdict based to return permitted inferences.” or reasonable evidence by adequate supported Farm, Inc., at Springs Winkler v. Seven causes, including “[Ojther responsible at 442. . . . persons and third plaintiff [must conduct Restatement the evidence.” eliminated sufficiently be] D.(l)(b) Torts 328 (Second) of causation case, only this Muhtler’s combined fall is fact of appellee’s fell. The appellee was wet before the floor testimony that was wet floor have inferred reasonably could However, evidence that fell. appellee when Horn Burton more, negligence. not evidence without *9 & Hardart 371 Pa. Baking

Therefore, could not infer unless jury appel- lee adduced evidence that the floor was dan- unreasonably However, there is no gerous. this case that the floor was one of dangerous. appellee’s Not witnesses testi- fied that the floor was slippery.

It might fall, contended that the fact of appellee’s together wet, evidence that the floor was is evidence of the floor’s dangerous condition. This argument assumes wet, fell appellee because of the condition of slippery floor. has appellee not sufficiently, eliminated other possible for the explanations accident. fall for People many reasons. There is no evidence in this case that appel- Indeed, lee feel because of a wet floor. one of appellant’s witnesses testified that a floor of the used type by appellant, even when is less than a normal floor. To slippery allow the in this case to infer that jury appellee’s fall was caused a wet floor would be tantamount to allowing jury speculate among plausible solutions. This is imper- missible. See Lenkiewicz v. Lange, A.2d 1172 (Second) Restatement of Torts 328 D. comment on clause (a) (1) of subsection

To simplify, appellee seeks to have the infer that the fell; floor was because slippery she she simultaneously, seeks to have the infer that she fell because the floor I do slippery. not believe that two impermissible infer- ences can be used as evidence in support each other.

Because appellee produce failed to sufficient evidence to establish a cause of for negligence action I against appellant, would reverse the judgment of the lower court.