Donlin v. J.J. Newberry Co.

466 A.2d 174, 319 Pa. Super. 310, 1983 Pa. Super. LEXIS 3950
CourtSuperior Court of Pennsylvania
DecidedSeptember 23, 1983
DocketNo. 1031
StatusPublished
Cited by5 cases

This text of 466 A.2d 174 (Donlin v. J.J. Newberry Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donlin v. J.J. Newberry Co., 466 A.2d 174, 319 Pa. Super. 310, 1983 Pa. Super. LEXIS 3950 (Pa. Ct. App. 1983).

Opinion

HESTER, Judge:

On May 14, 1977, appellee, Elizabeth D. Donlin, was a customer in the J.J. Newberry Store, situate at Desmond Street, in the City of Sayre, Bradford County, Pennsylvania. JJ. Newberry Co. is a division of McCrory Corp. JJ. Newberry Co. and McCrory Corp. were defendants below and are appellants herein. •

Mrs. Donlin entered the store at 4:45 p.m. through the southern doorway from Desmond Street. She browsed for approximately one-half hour and eventually purchased white socks, coloring books and a package of crayons. It was closing time while Mrs. Donlin was inside the store, and doors were being locked and lights turned off. Having made her purchases, Mrs. Donlin was instructed to leave through the northern exit onto Desmond Street.

[313]*313Upon leaving, Mrs. Donlin walked through an interior doorway, across a vestibule, and through a second doorway to the outside. She took two steps beyond the exterior doorway and was not yet clear of the open door when her right foot was snagged by a metal strip protruding from the concrete sidewalk. The concrete was crumbling; in fact, Mrs. Donlin detected its deteriorating condition as she walked into the vestibule.

The metal strip obstructed Mrs. Donlin’s gait and forced her to fall to the pavement. With the aid of Newberry’s assistant manager, she managed to get to her car and drive home alone. X-rays revealed a fracture of the right anklebone. Mrs. Donlin also sustained bruises over the posterior portion of her right hip, recurring pain in her right hip, buttocks and pelvis and an aggravation of a pre-existing lower-back ailment. These injuries prevented Mrs. Donlin from returning to work as a seamstress for the Darling Dress Factory in Waverly, New York, until July 11, 1979.

As a result of these injuries, Mrs. Donlin filed a Complaint in Trespass against appellants in the Court of Common Pleas of Bradford County, Pennsylvania. She demanded damages in excess of $10,000.00 as compensation for pain and suffering, lost earnings and disability. Mrs. Don-lin’s husband, Leo A. Donlin, joined as a complainant seeking compensation for medical expenses and loss of consortium. He joins Mrs. Donlin as appellee before this Court.

Following a trial by jury, a verdict of $500.00 was awarded to Mr. Donlin and a verdict of $41,770.00 was awarded to Mrs. Donlin. Appellants’ motion for new trial and judgment non obstante verdicto was denied by an Order of Court, dated September 19, 1980. A Notice of Appeal from the September 19th Order was timely filed; nevertheless, it was quashed by the Superior Court. Judgment on the verdict was then entered by the trial court by an Order of Court, dated March 15, 1982. Appellants filed this appeal from the March 15th Order.

[314]*314It is appellants’ first contention that Mrs. Donlin was contributorily negligent as a matter of law due to her knowledge of the crumbling sidewalk and her failure to look down as she proceeded through the exterior set of double doors. According to appellants:

____ persons have an ever-present duty to look where they are going, and they must avoid an obvious danger by the use of the means at hand, and if one can reasonably assure her safety by the use of her senses, she must do so, or abide the consequences of her carelessness. Brief of appellants, p. 11.

Appellants cite three opinions in support of this contention. Unlike the facts in those opinions, the facts here disclose that, although Mrs. Donlin observed the deteriorating condition of the sidewalk, she did not notice the defect which actually caused the injuries. She was unaware of the metal band since it comprised a negligible portion of the entire sidewalk. The crumbling concrete, unlike the band, was a significantly larger mass rendering it readily detectable. Also, the lower section of the exterior doors, when closed, and as Mrs. Donlin proceeded through the vestibule, concealed the metal band. Moreover, the band was no more than three feet from the exterior doors; consequently, there was no appreciable opportunity to detect the danger upon stepping outside. In fact, the band was so close to the exterior doors that Mrs. Donlin fell while one door remained open. Her half-prone body prevented the door from closing until she pushed herself along the concrete. Finally, Mrs. Donlin had no alternative but to exit through the northern doors on Desmond Street. Since it was closing time, patrons were instructed to leave through that doorway only; therefore, she was compelled to use a treacherous route to her vehicle. In light of these facts, we will not reverse the jury’s finding that Mrs. Donlin did not voluntarily expose herself to a known risk. Contributory negligence can be found as a matter of law in clear cases only. Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970); Davis v. Feinstein, 370 Pa. 449, 88 A.2d 695 (1952). Only where it is [315]*315beyond dispute that a dangerous condition is so apparent that an ordinarily prudent person would regard it as a hazard and attempt to avert it, can we say as a matter of law that a person exposing himself to such risk is contribu-torily negligent. See McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982). Sufficient evidence of Mrs. Donlin’s involuntary exposure to a latent defect precludes a finding of contributory negligence as a matter of law.

Although we agree with appellants’ averment that pedestrians “must look where they are going,” Villano v. Security Savings Association, 268 Pa.Super. 67, 407 A.2d 440 (1979); Lewis v. Duquesne Inclined Plane Co., 346 Pa. 43, 28 A.2d 925 (1942), we will not hold them responsible for walking so tentatively as to detect nearly-latent defects. Such action exceeds the burden placed upon the ordinarily prudent man under these circumstances. DeGregoris v. Stockwell Rubber Co. Inc., 235 Pa.Super. 71, 340 A.2d 570 (1975).

Next, appellants argue that the trial court erred in charging the jury on lost future earnings and loss of earning capacity. Mrs. Donlin made the following allegations in her Complaint with respect to damages:

7. As a result of the aforementioned negligence on Defendant’s part, the Plaintiff, Elizabeth D. Donlin, was rendered sick, sore, lame and disabled and experienced pain and suffering, which is permanent and still exists.
8. As a result of the injuries sustained by the Plaintiff, she was unable to work at Darling Dress Factory, 306 Broad Street, Waverly, New York, for the period from May 16, 1977 until July 12, 1977, where she earned $92.00 gross per week, for a total loss of wages of $736.00, a copy of said lost earnings attached hereto as Exhibit A.

Lost future earnings and loss of earning capacity were not set forth in the pleadings; therefore, according to appellants, it was improper to submit them for determination to the jury. Appellants cite Heymann v. Electric Service [316]*316Manufacturing Co., 412 Pa.

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Bluebook (online)
466 A.2d 174, 319 Pa. Super. 310, 1983 Pa. Super. LEXIS 3950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donlin-v-jj-newberry-co-pasuperct-1983.