437 Pa. 80 | Pa. | 1970
Concurrence in Part
The appellants present nothing but a far-fetched tortured argument. In an attempt to avoid every danger and risk which a fireman necessarily, and by the very nature of his exacting and dangerous job assumes, they further unwisely, unfairly and unrealistically seek to impose on an owner of property a legal duty to know more about fires and their causes than the firemen themselves who are experts in the field of “fires.” Only by a stretch of the imagination can the facts in this case be distorted into a hidden danger which was created by defendants.
For these reasons, I dissent, and would affirm the Order of the lower Court which granted a new trial in Nos. 218 and 219, and I would grant a new trial in the other cases.
Concurrence in Part
Concurring and Dissenting Opinion by
By pretrial conference it was decided that two actions serving as test cases on liability were to be tried together, one to bind all injured firemen, the other to bind all deceased fireman. The court below, by amended order, departed from the procedure agreed upon at the pretrial conference and granted a new trial as to six of the thirty-two firemen. It did so because it felt the record indicated that contributory negligence was an issue as to these six and that a manifest injustice would be done if the defendants were not permitted to raise that issue. The pretrial order was silent as to how contributory negligence could be raised against individual plaintiffs. The lower court refused to grant a new trial as to the others because it felt the parties should be bound by their agreeemnt (contained in the pretrial order) and because the record did not indicate that there was a jury issue on contributory negligence
There is little authority as to what types of cases are suitable for treatment as test eases. Because our courts now face such a backlog of cases and because the test case device (by way of pretrial orders) offers some relief from that pressure, it seems appropriate to determine when, or at least when not, such a device should be used. One factor that must be present is the identity of issues, both factual and legal, in all cases that are subject to the order. Of course, the facts can only be developed later as the trial proceeds so the judge must use whatever is available to determine whether the case is of the type in which the facts are identical as to all parties or in which different facts will have no legal significance. It should have been obvious that this case does not fit into that category. The various firemen likely had different amounts of knowledge about this situation and fires in general, were in different locations and were doing different things at the time of the explosion. Therefore, it was improper for the lower court to have entered such a pretrial order, and a new trial should be granted as to all plaintiffs.
It should not matter that the pretrial order was bargained for or that no objection was raised until after the verdict because this is a matter of the integrity of the judicial system, something over which the parties have no control. As a matter of our supervisory powers over this Commonwealth’s courts, we should hold that no court should use the test case device when it is obvious that facts pertaining to individual plaintiffs have legal significance apart from facts before the court in the representative suit. It is important for this Court to establish guidelines for this type of action because in the proper circumstances it can be quite useful.
Concurrence in Part
Concurring, and Dissenting Opinion by
On April 15, 1961, an explosion destroyed a gasoline station in Philadelphia, killing three firemen and injuring twenty-nine others. Thirty-two separate suits were instituted; by pretrial conference and order, two actions serving as test cases on liability were tried together, one to bind all injured firemen, the other to bind all deceased firemen.
Approximately three months- before the explosion in question, the manager of the gas station received complaints, from customers concerning water and dirt in the gasoline. Sun Oil, when informed, sent its maintenance men to check the pumps, but no evidence of water was found. Approximately three weeks before the explosion-, the manager again informed Sun of complaints
When a different Midstates employee arrived the next morning, an employee of Sun was already at the station, delivering gasoline. The Midstates employee went down to the basement; upon discovering two to six inches of water covering the basement floor, he returned to his truck for his boots. He then re-entered the basement and attempted to find the source of the water leak. Several minutes later he heard a muffled sound, which he described as a “phoom,” and noticed a flame shooting across the stairway to the cellar entrance. He escaped from the cellar, told Sun’s employee to move his gasoline truck, and ran to a fire station one block away. He did not, however, tell the firemen about the history of the leaking tank. Nor did the Sun employee inform them that he had just filled the leaking tank with gasoline.
Plaintiffs’ expert,' whom the. jury reasonably chose to belieAm, gave his opinion that the explosions were caused by the ignition of vaporized liquid gasoline. Hydrostatic pressure, caused by filling the basement tank with gasoline from the Sun truck, forced liquid gobs of gasoline through the openings in the tank, which was surrounded by Avater. The water carried the escaping gasoline to the surface through the hole in the floor, Avhere it then vaporized, igniting .on the surface of the water in the basement. After each explosion, the resultant heat caused the gasoline which escaped in the interim to ignite Avith greater force, finally resulting in the explosion which destroyed the building.
Plaintiffs’ theory of liability is based on Sections 342 and 345 of the Eestatement Second of Torts. Section 345 provides that one who enters the land in the exercise of a privilege is a licensee. Licensees, under Section 342, may recover, for physical harm caused by a condition on the land only if the possessor
Defendants assert that this was, at most, a negligently started fire, and that there is no liability for such fires; that, even if this was a condition- which involved an unreasonable risk, defendants’ employees at the scene did not know, or have reason to know, of the risk; and, finally, that plaintiff firemen assumed the risk of these explosion when they went to fight a fire at a gas station.
Although I believe that one who negligently starts a fire may be liable to firemen for proximately caused injuries,
Defendants next assert that since their employees on the scene the day of the fire did not know the previous history of repairs, they could not have realized the risk involved and, therefore, were under no duty to warn the firemen. The corporate entity, however, can act only through agents and, consequently, all the knowledge of these agents must be imputed to the corporation. See Corn Exchange National Bank & Trust
Defendants also assert that plaintiff firemen, as a matter of law, assumed the risk of gasoline exploding, since they were fighting a fire at a gas station. I do not believe that a fireman, by merely accepting employment and doing his job, necessarily assumes, voluntarily, the risks which are inherent in fighting particular types of fires. Further, in the instant case, the jury could properly find that there was no voluntary assumption of risk, predicated on their finding that the condition on the land creating the risk was one which the firemen did not discover. This Court has long held that the risk of injury from hidden defects is not one which, as a matter of law, is voluntarily assumed. See Drake v. Fenton, 237 Pa. 8, 85 Atl. 14 (1912) (fireman injured when falling down improperly guarded elevator shaft may recover); Hild v. Montgomery, 342 Pa. 42, 20 A. 2d 228 (1941) (licensee assumes all normal or ordinary risks, but does not assume risk of hidden dangers) ; cf. Restatement, Torts (2d) §496D (1965) (plaintiff must know of existence of risk and appreciate its unreasonable character for there to be a voluntary assumption of risk).
Defendants also allege numerous errors in the scope allowed to them in cross-examination. Upon examination of the record, however, I am unable to see any abuse of the trial judge’s discretion in this matter. See Parente v. Dickinson, 391 Pa. 162, 137 A. 2d 788 (1958); Lester v. Century Indemnity Co., 356 Pa. 15, 50 A. 2d 678 (1947); Tolomeo v. Harmony, 349 Pa. 420, 37 A. 2d 511 (1944).
Defendants also complain about four of the seven interrogatories submitted to the jury. While some of these interrogatories could, perhaps, have been better
Plaintiffs in six of the cases which were not test cases are appealing the decision of the court en banc ordering that trials be held in their cases. The court pointed out that there was some evidence of contributory negligence on the part of these six plaintiffs, but that the pretrial order
Rule 212 of the Rules of Civil Procedure provides that a pretrial order when entered “shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice.” This reflects the basic reason for having pretrial orders'—issues, once simplified, are to remain simplified throughout the trial unless there is some very good reason for a change. In long and complex trials, as here, this insistence on adhering to the simplification agreed to in the pretrial conference and order is most essential. Litigants who are dissatisfied with the simplification may object at trial and seek a modification if they can show manifest injustice. See 1 Goodrich-Amram, Standard Pennsyl
I cannot too strongly state my belief that the majority today has emasculated Buie 212, and impaired the utility of pretrial conferences and orders by allowing counsel to object to pretrial orders after the trial has ended. For now, under the majority’s treatment of this case, if an issue is not mentioned specifically in the pretrial order, counsel will be able to remain silent and await the verdict. Then, if the verdict is unfavorable, counsel can upset it by merely pointing out the issue that was “forgotten.” In fact, I question whether the defendants here, in agreeing to the test cases, “forgot” about contributory negligence. After all, by choosing two plaintiffs injured on the premises, they were able to have the case tried on a less exacting standard of care. See note 4 supra. I do find it difficult to believe that any defense lawyer would forget about the issue of contributory negligence—an issue so elementary and so vital to his client’s interests.
Backlogs in civil cases have become a hindrance to prompt and efficient judicial administration in this country, and in Philadelphia where this case was tried. We should not destroy the viability of pretrial procedures which can help speed the disposition of civil cases,
The pretrial order, provided, inter alia:
“1. Two test cases will be tried simultaneously as follows:
(a) One surviving fireman against all defendants, the outcome to constitute a precedent- and be binding on the cases of aU other surviving firemen against- all other defendants, as to liability only.
(b) (Simultaneously) One case arising from the death of a fireman will be tried against all defendants to the same end, in the same manner and with the same effect on aU cases arising from the deaths of other firemen ... as the prior case.”
All parties agree that Sun and Midstates, acting on behalf of the possessor, are subject to the same duty as the possessor. See Restatement Torts (2d) §§383, 384 (1965). .
This Court has not, at least in this century, passed directly on this question insofar as it relates to firemen injured on the premises. See Ruhl v. Philadelphia, 346 Pa. 214, 29 A. 2d 784 (1943) (recovery allowed for injuries sustained off premises due to a negligently started fire); Drake v. Fenton, 237 Pa. 8, 85 Atl. 14 (1912) (fire classified as one due to an “unforseen occurrence”).
Although plaintiffs were content to have their case tried on this standard of care, I question whether the distinction between “licensees” and “invitees” is at all valuable in the context of this case. In some jurisdictions, firemen have been .classified as invitees, see Dini v. Naiditch, 20 Ill. 2d 406, 170 N.E. 2d 881 (1960); cf. Buckeye Cotton Oil Co. v. Campagna, 146 Tenn. 389, 242 S.W. 646 (1922) (firemen summoned from neighboring jurisdiction are invitees); in other jurisdictions, they have been classified as “sui generis,” see Buren v. Midwest Industries, Inc., 380 S.W. 2d 96 (Ky. 1964) ; Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N.W. 2d 549 (1951); Krauth v. Geller, 31 N.J. 270, 157 A. 2d 129 (1960). In fact, in some jurisdictions, the categories of the Restatement, creating differences between licensees and invitees,
In the least, I believe that a possessor of land should be held to a higher standard of care when a “condition,” such as a fire, has the potential of “leaving” the premises. As the court en banc noted in its opinion, if the test case had involved a fireman injured off the premises, §371 of the Restatement would probably have applied. That section imposes liability for unreasonable activity which injures persons off the land, regardless of whether the condition was hidden and irrespective of any warning given. This would lead to the seemingly anomalous result of having the possessor's duty of care, with respect to the condition he creates, depend on the scope of the fire and the location of the victims. Cf. Ruhl v. Philadelphia, 346 Pa. 214, 29 A. 2d 784 (1943).
For decisions of like effeet in other jurisdictions, see, e.g., Kanelos v. Kettler, 406 F. 2d 951, 955 (D.C. Cir. 1968) (plaintiff must have knowledge of risk and full appreciation of its dangers); Buren v. Midwest Industries, Inc., 380 S.W. 2d 96, 99 (Ky. 1964) (fireman does not assume risk of “unusual hazards”); Krauth v. Geller, 31 N.J. 270, 157 A. 2d 129, 131 (1960) (liability can be im
See note 1 supra.
Concurrence Opinion
Concurring Opinion by
On the merits the Court has affirmed the actions of the lower court, and with this I am in agreement. This brief comment is not directed to the merits of the appeal, but to the procedural problem presented by the use of the test case device where the pretrial order directing it is discovered to be defective.
I subscribe to Justice Cohen’s remarks concerning the usefulness of the test ease device and the need for this Court to develop guidelines for this type of action. My view of the case at hand, however, leads me to a different conclusion than Justice Cohen as to the appropriate result. In the present case, the pretrial order providing for simultaneous trial of two test cases was entered without an awareness by the trial court that contributory negligence would be an issue with respect to some plaintiffs. In the course of the trial, -the importance of that issue became evident. Realizing that the situation of certain firemen placed them outside the reasonable ambit of the pretrial order, the trial court realistically attempted to rectify the situation by granting new trials as to those men. Post-trial modifications of such pretrial orders should be carefully weighed, but in my view the trial court was fully justified in its action in the present instance.
When events prove a pretrial order inadequate as to some parties, it does not follow that the order must for that reason be set aside as to all parties. In the present case, I think it was correct to conclude, as the lower court did, that a new trial as to all thirty-two plaintiffs was not required because of a defect in the consolidation order which affected only six of their
Lead Opinion
Opinion
. The order of the Court of Common Pleas of Philadelphia County is affirmed in Numbers 218 and' 219. The judgments entered are affirmed as to all other plaintiffs.