*1 30
106, (1982) (McDermott, J., 451 1344 concurring A.2d memo- Tomlinson, Commonwealth v. randum); 241, Pa. 446 252- Commonwealth v. Wein- 254, 687, (1971); 696 stein, 70, and Commonwealth (1971); 274 A.2d 182 Neill, 507, Pa. 362 Accordingly, drink, those or use are who not excused under drugs section because simply they have done so under impulse or need. The self-induced General has Assembly excluded drug parame- intoxicated and induced conditions from the ters of by clearly section 315 defining the circumstances under can they which be raised section The 308. majority establishes a dangerous precedent by failing to clearly is, identify appellant’s defense for futile what it and Otherwise, frivolous. I join majority opinion. LARSEN, JJ., FLAHERTY PAPADAKOS, join concurring opinion. this SCARBOROUGH, minor, by parent
Edward his and natural guardian, SCARBOROUGH, Patricia and Patricia
Scarborough, right, Appellees, in her own Castle, Joseph Andrew Reading L. LEWIS and L. trustees for Company Philadelphia, Appellants.
Supreme Pennsylvania.
Argued Dec.
Decided Oct. *2 Kurland, Sol., Weaver, Deputy Norma S. Seymour Axelrod, Claims, R. Divisional Charge Deputy Barbara for Charge Appeals, appellants. Warner, Philadelphia,
E. for Lewis & Castle. Parry Beasley, Philadelphia, Scarborough. James E. LARSEN, FLAHERTY, NIX, C.J., and Before *3 ZAPPALA, STOUT, PAPADAKOS and JJ.
OPINION ZAPPALA, Justice. of to the of Philadel- granted appeal
We allowance Superior determine erred in phia (City) to whether of part in an order of the Court of Common Pleas affirming banc, en insofar as it denied the Philadelphia County, sitting the judgment notwithstanding motion for City’s post-trial the issue of City properly preserved verdict.1 Because the a the Edward Scarbor- Appellee, whether it owed to holding to the Court’s the ough, contrary Superior waived, in part issue the order of Court is was not judgment reversed and the motion for withstand- is ing granted. the verdict personal this action are that underlying injury
The facts 24, 1974, Edward, nine, aged playing on then was June Scarboroughs’ appeal petition of on 1. We denied the for allowance Scarboroughs May petition, four issues for 1988. In the the raised consideration, Superior Court erred our which all focused on whether judge’s granting upon answer to a in a new trial based the trial posed by jury. question the Street, Thirteenth a dead along his friends with basketball shot he took a Philadelphia. of When street the end backboard, basket, off of the ball ricocheted the the at chain link through a end of the street and to the rolled Street, and McFerran fence, adjacent stretched to the which railroad tracks. Edward an toward the down embankment in the fence and down embank- through a hole climbed up then walked back the ball. He ment to recover Instead under the fence. and threw the ball embankment Edward, heard a who returning game, to the basketball of to the the embankment went back down approaching, train by various tracks, readily accessible which were railroad before, hopped then, as he had done routes. He other Company. Reading Railroad freight train owned hop he tried to off a short travelling After distance caught. process In the train; however, pant leg got his wheels it, he and fell under the slipped loosen trying to just were severed below legs Both of the train. Edward’s his knees. his Patricia Scarborough and mother Edward
Appellees, damages in 1976 this for Scarborough, instituted action Castle, L. trustees Joseph L. Andrew Lewis against collectively (hereinafter to referred Reading Company as an additional Reading joined Reading). as keep it had failed to grounds that on the defendant owed breached repair thereby and had fence dangerous him from the Scarborough protect Edward on the rail- of trains by the movement created condition property.2 road’s *4 I. Judge in before April, 1981
Following a trial jury both Kremer, against returned a verdict was Raymond in Scarborough City in favor of Edward and the Reading in favor of Patricia Scarbor- $3,000,000 and the amount $300,000. pursuant damages Delay ough in the amount were molded the verdicts 238 were added and to Pa.R.C.P. 1980, 5, Act, ofAct October Tort Claims The Political Subdivision 693, seq. predecessor, Act of Novem- its 8541 et nor § 42 Pa.C.S. P.L. 1978, P.L.1399, 26, seq. applicable to were et § 53 P.S. 5311.101 ber this case. $3,454,500 to the $345,400 sums of respectively. Read- ing and the both filed post-trial motions and extensive post-trial post-trial briefs.3 The motions argued were appeal, denied.4 On a Superior panel Court reversed the order of the trial court insofar as it dismissed Reading’s motion for judgment n.o.v. As to the City, Superior Court affirmed the n.o.v., trial court’s denial of judgment but reversed the denial of a new trial and remanded for that purpose. appeal, Reading
On and the City argued that the failed to Scarboroughs cognizable establish a legally cause of action and that judgment n.o.v. should have been grant ed. in reviewing the record found that the present had failed to argument post-trial its brief source, concerning existence or nature of the duty owed by the Scarborough. Edward This finding was on the fact post-trial based that the City’s brief addressed only issue of the existence of a causal connection between Edward’s and the injuries City’s breach of some unspecified The duty. City’s failure to brief the critical issue at close of proceedings, Superior Court concluded, deprived trial court of both the need and opportunity to address the merits of the City’s contention Scarboroughs failed to a legally cogniza establish because, law, ble cause of action aas matter of the City no duty owed to Edward Scarborough. Scarborough Lewis, 57, Pa.Super. 62-63, 563,
In Dilliplaine Lehigh Valley Trust Company, 255, (1974), we set forth the doctrine of waiver and the underlying policy considerations which are: Reading Scarboroughs settled with the while the motions were pending. argued 4. Post-trial motions were on December 1981 before a court en banc consisting Stanley Greenberg, of the Honorable M. the Honor- Kremer, Raymond judge, able I. the trial and the Honorable Bernard Snyder. Judge Greenberg joined Judge denying with Kremer all date, post-trial Judge Snyder on March motions 1984. On that participation chose to recuse himself from in this matter. *5 expend time First, required not be courts will appellate ruling has on which no trial reviewing points energy Second, promptly correct may the trial court made. been presented, properly the issue the asserted error. With result, satisfactory to reach a likely trial court is more the review on this issue. appellate the need for obviating thus the may granted by if is it be necessary, a new trial Or and the litigants both subjecting court without trial in appellate inherent expense delay to the courts Third, be free to more courts will appellate review. properly preserved of the issues expeditiously dispose re- exception the Finally, appeal. omitted]. [Footnote advantage formerly enjoyed by remove the quirement will appellate looked to the unprepared lawyer the trial who omissions. for his trial compensate court to [Footnote omitted]. at 116-117. 457 Pa. at
Id. was City’s post-trial in the brief question presented The A FAILED TO PROVE LEGALLY as follows: PLAINTIFF THE BETWEEN CAUSAL CONNECTION COGNIZABLE AND PLAINTIFF’S CITY’S ALLEGED NEGLIGENCE BE ENTERED INJURY, MUST AND JUDGMENT N.O.V. Added). Brief Post-Trial (Emphasis City’s THE FOR CITY reveals that post-trial of the brief City’s 8. Examination p. posi- length sets out at introduction section Scarborough and to Edward duty it owed no tion argument This was negligent. could not be found therefore re- presented for question into the implicitly incorporated negligence, because, describing the claim view an element of alleged negligence, that was used was term duty. which is dissent, in his
Furthermore, noted Judge as Wieand did not trial, contended that the law City throughout the danger- minor child from protect on it a impose another. by land owned conducted on being ous activities case, the moved for Scarboroughs’ close of the At the denied nonsuit, summarily which was compulsory rested, for a moved parties After both judge. trial verdict, The once directed which was also denied. points it submitted addressed the issue when again *6 City duty that the owed no to charge provided for which property on not defective conditions maintained repair from protect dangerous the or to citizens by City owned property on owned others. private activities conducted reasons, the issue of was duty For these we find that presented into the for re- incorporated question implicitly doctrine considerations of the waiver policy view and the prevent satisfied so as to waiver. have been argument was City’s duty Because the common law review, for now address whether properly preserved we conten would afford a basis for the arguments such in to n.o.v. As we stated judgment tion that it was entitled Pittsburgh, Redevelopment Authority Atkins v. Urban 344, (1980): 489 Pa. 100 A judgment of review is settled. n.o.v. Our standard case, any entered in a clear doubts only should be in the verdict. should resolved favor of Steward be (1970). In A.2d 259 consider- 439 Pa. 266 Chernicky, n.o.v., evidence, together the ing judgment a motion for therefrom, inferences is considered with all reasonable most favorable to the verdict winner. Miller v. light the Co., Checker Cab 351, 414 these stan- Applying Pa. at A.2d at 103.
Id. 489 to a dards, Appellees present no that failed we have doubt because, as a matter of cause of action legally cognizable law, to Edward. owed no City a repair undertook to argue that where
Appellees area, the fence its failure to maintain dangerous fence in a the Restatement under Section 323 of legal duty created a as follows: (Second) provides of Torts.5 Section Ren- Undertaking Performance of to Negligent § der Services repaired by Appellee’s was According evidence the fence to the was fixed after the incident. this incident and the fence before jury this was instructions to the indicated The trial court’s negligence. City's of the fence and not its evidence of the control N.T.1998. consideration, undertakes, to gratuitously or
One who recognize he should as to another which services render or person of the other’s protection for the necessary physical other for liability is things, subject failure to exercise reasonable from his resulting harm if undertaking, his perform care to the risk exercise such care increases (a) his failure to harm, or of such reliance of the other’s
(b) harm is suffered because undertaking. upon the that at common law contends
Conversely,
property
on a
imposed
was never
Pennsylvania
land
were
those
crossed
owner’s
owner to
who
prop-
on the
by dangerous
condition
subsequently injured
*7
v.
Railroad
Pennsylvania
another.
erty of
Malischewski
554,
(1947);
Baptist
v.
Co.,
Magner
Pa.
Superior
agreed
adjacent
of
upon possessor
no
a
imposed
duty
that the law
as to deter
warnings
or
so
fencing
provide
land
erect
to
However,
entering
property.
party’s
from
third
persons
appeal
of moment in the
argument
no
the court found this
court
with the
agreed
revealed the trial
the record
because
to
and
that effect
charged
jury
of the law
statement
359 Pa.
City’s request. Scarborough,
with
accordance
words,
65,
the jury
A.2d
569. In other
Super, at
518
at
of the law
Sec
statement
rejected the aforementioned
the City’s liability.6
basis of
tion 323 formed the
provided
38
Appellees also contended that Police Directive
6. At trial.
police
liability.
offi-
City’s
38 directed
Police Directive
basis for
city property.
report dangerous
on
In Mindala
conditions
cers to
misperception
The
of both
Court and Appel
lees is that
323 creates a
duty requiring
Section
to
the fence. In
repair
Morena v. South Hills Health System,
634,
(1983)
Pa.
Id.
at
At
charged
common
one
with the
keeping
highways and
safe for travel
roadways
required
was
take measures to eradicate or reduce the
posed
risks
steep cliffs and
located
upon
embankments
or
close
proximity
highway
Sladek,
to a
or roadway. See Balla v.
(1955);
381 Pa.
Winegardner v. Spring
(1917)
102 A.
Township,
not
(duty
field
maintaining
confined to
of the road
bed
but extends to
erection of barriers and other devices for
unsafe
guarding
road);
places along
Township Montgom
Scott
*8
Case law would at first to imposed have a on the duty along to erect a barrier the dead end of (1988), Corporation, American Motors 518 Pa. we duty found that Section of the Vehicle 6109 Motor Code created a upon township police dangerous highway to alert motorists of missing stop sign conditions when it was aware of a and PennDOT’s inability Although Reading seventy- to correct the situation. received area, complaints trespassing Appellees two in the did not establish police department that the was aware of the hole in the fence nor that trespassers subject complaints who were the of the had used that Consequently, police department hole. and thus the did not duty breach a that would have otherwise arisen from Police Directive
39 Balia, However, Winegardner Street. Thirteenth case sub from the distinguished can be Township Scott municipality on a imposed duty fact that the by judice falling from of vehicles danger as to avoid was so cliffs and embankments. steep roadways down or highways through Scarborough climbing after case, Edward In this on his own volition retrieving the basketball the fence and This unsu- hop to a train. tracks to the railroad returned sought danger was not the a minor child activity of pervised erect common law to of a the creation by to be avoided along roadway.7 a barriers no imposes that the law it is well settled
Alternatively,
or
fencing
to erect
land
possessor
adjacent
a
duty upon
entering
from
a
persons
deter
so as to
provide warnings
dangerous
there exists a
on which
party’s property
third
the landowner and
or maintained
condition not created
no control. Kearns v. Rol
the landowner has
over which
596, 492
Inc., 89 Pa.Commw.
Advertising,
lins Outdoor
Church,
(1985);
supra; Hel
Baptist
v.
Magner
(E.D.
6
F.Supp.
576
Corporation,
Rail
ler v. Consolidated
(3d Cir.1983);
Yae
Pa.1982),
F.2d 662
Cousins v.
aff 'd 720
Furthermore,
(E.D.Pa.1975).
it would
F.Supp.
ger,
landowners
impose
duty upon
to
such a
incongruous
be
has
long
when it
been
right-of-way
to a railroad
adjacent
erect fences on its
a railroad has no
held that
right-of-way
trespassers. Dugan
Pennsylvania
to deter
(1956);
25,
The order of insofar as it affirmed that of the order of the part Court of Common Pleas of Philadel- n.o.v., phia County denying City’s judgment motion for record, is reversed and vacated. Based upon we must grant the motion for n.o.v. judgment relinquished.
Jurisdiction McDERMOTT, J., did in participate not consideration or decision of this case.
STOUT, Justice, participate Former did not in the decision of this case.
LARSEN, J., in dissenting opinion files which PAPADAKOS, J., joins.
LARSEN, Justice, dissenting.
I strenuously gross dissent. It is a misconstruction of English language to conclude that appellant, of Philadelphia, preserved appellate review its claim that it no duty appellee, owed Edward Scarborough, merely by (the phrasing preserve causation) the issue it did issue of in “alleged” negligence. terms of This amounts to no more “boilerplate” allegation. than a have held We that such allegations diligence” constitute “a lack of on the part counsel, and consider the we issues raised such fashion to Hall, 115, 137-38, waived. re be See In Estate The issue of is appellant’s duty not raised in appellant’s post-trial motions nor is there any argument appellant’s post-trial plumbing depths brief source, of the regarding law of this Commonwealth existence or nature of the duty by appellant appel- owed Thus, waived, lee. the issue was and the of this majority retreating Court is from our clear and year fifteen wise *10 Dilliplaine Lehigh Valley set forth in pronouncement Pa. Company, Trust I affirm the order of
Accordingly, would Pleas case to the Court of Common would remand the for a trial. County new Philadelphia PAPADAKOS, J., dissenting opinion. this joins Caruso, Appellants, and Alba Lea MONACO Pennsylvania, UNEMPLOYMENT COMMONWEALTH REVIEW, Appellee. BOARD OF COMPENSATION Supreme Pennsylvania. Court of 3,May
Submitted Oct. Decided