Fucci v. Sommers

41 Pa. D. & C.2d 30, 1963 Pa. Dist. & Cnty. Dec. LEXIS 5
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedAugust 2, 1963
Docketno. 25
StatusPublished
Cited by1 cases

This text of 41 Pa. D. & C.2d 30 (Fucci v. Sommers) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fucci v. Sommers, 41 Pa. D. & C.2d 30, 1963 Pa. Dist. & Cnty. Dec. LEXIS 5 (Pa. Super. Ct. 1963).

Opinion

Davis, P. J.,

This is a trespass action by V. James Fucci and Rose Fucci, his wife, against Donald Sommers and Wanda Sommers, his wife, trading as Starlit Lodge, to recover for injuries sustained by each of plaintiffs while they were paying guests at Starlit Lodge, a resort business located in Barrett Township, Monroe County. It appears from the complaint that they occupied a cabin or housekeeping cottage at Starlit Lodge during the week of August 6 through August 12, 1961, “and for a long period of time before and after said week”. Mrs. Fucci remained until September 4, 1961, but the complaint is silent as to when Mr. Fucci terminated his stay there. The first count of the complaint avers that the wife-plaintiff sustained a cut thumb when a glass furnished by defendants broke while she was washing it; and the second count avers that the husband-plaintiff sustained a cut or scrape on his right shin bone while proceeding at night from his cabin to the lodge in order to make a phone call. Defendants have filed preliminary objections to the complaint: (a) in the nature of a demurrer, and (b) as a motion for a more specific complaint.

On demurrer, the court is required to determine whether or not the two counts of the complaint set forth valid causes of action. To constitute actionable negligence, a complaint must disclose three essential elements: (1) a duty or obligation of defendant to [32]*32protect plaintiff from injury; (2) failure of defendant to discharge that duty; and (3) injury to plaintiff resulting from that failure: McGeehan v. Cicconi, 48 Luz. 127, 130 (1958). The first of these elements has been adequately pleaded in paragraphs 2 to 6 of the complaint, averring the existence of the innkeeper-guest relationship and thereby bringing into operation the relevant law. In Pennsylvania, an innkeeper is not an insurer of the safety of the guest: Jefferson v. Young Men’s Christian Association, 354 Pa. 563, 567 (1946); Hunter v. Hotel Sylvania Co., 153 Pa. Superior Ct. 591, 593 (1943); Tamres v. Reed, 109 Pa. Superior Ct. 28, 30 (1933); Moffses v. Paradise Falls Lutheran Association, 16 Monroe 64, 65 (1954); but he is required to exercise such watchfulness and care as would reasonably secure the safety of the guest during his stay at the hotel: Ritchey v. Cassone, 296 Pa. 249, 255 (1929); Tomko v. Feldman, 128 Pa. Superior Ct. 429, 434 (1937); and to provide safe premises and necessary articles of furniture which may be used by the guest without danger: Lyttle v. Denny, 222 Pa. 395, 398 (1909); Cross v. Laboda, 190 Pa. Superior Ct. 119, 121-22 (1959); Manchester v. Barnett, 27 D. & C. 75, 77-78 (1936).

Passing to the second essential element, it will be necessary to deal with the two counts separately.

First Count

“6. On or about August 7, 1961 the Plaintiff, Rose Fucci, while washing dishes including glasses supplied by the Defendants to the Plaintiffs as guests in one of the cabins of the Defendants, one of the glasses she was washing broke and cut her left thumb which cut went through to the bone and was approximately one and one-half inches long”.

This, without more, is an insufficient averment of negligence. In Flagiello v. Crilly, 409 Pa. 389 (1963), [33]*33the Supreme Court affirmed a judgment of nonsuit, and Bell, C. J., said:

“The mere happening of an accident or the mere fact that a moving vehicle collides with a pedestrian or with 'another vehicle does not establish negligence nor raise an inference or a presumption of negligence nor make out a prima facie case of negligence. . . .”

To warrant a conclusion that defendants were negligent, plaintiff relies upon two additional averments : (1) that the glass which broke “was a ‘Heinz tomato juice jar’, which was intended for the storage of tomato juice, but was not intended or designed for the use as a drinking glass in a household” (paragraph 7); and (2) that defendants failed “to properly inspect the glasses which they supplied to the plaintiffs for use by the plaintiffs as household glasses” (Paragraph 8(a)) or “to test, examine, or otherwise determine whether or not the glasses which they supplied were fit for use as household drinking glasses. . . .” (Paragraph 8(c)).

The first averment is clearly demurrable because it fails to show any causal connection between the breach of duty alleged and the injury sustained: Charnogursky v. Price-Pancoast Coal Company, 249 Pa. 1, 3 (1915); Neagley v. Cassone, 10 D. & C. 632 (1927). Plaintiff was injured because the glass broke while she was washing it; not because she attempted to drink from it. The relevant factor here is fragility. Many glasses specifically designed for drinking are more rather than less fragile than a commercial tomato juice glass, which should withstand the handling associated with its passage through the channels of trade from the bottler to the ultimate purchaser. If defendants had supplied plaintiff with a specially designed drinking glass, the probability that it might break under the circumstances would not be lessened, but possibly might be increased.

[34]*34The second averment, that defendant failed to inspect or test the glass, will not support a conclusion of negligence unless it can be established that such inspection or testing would have revealed the defect which resulted in plaintiff’s injury. An analogous situation was presented in Hunter v. Hotel Sylvania Co., 153 Pa. Superior Ct. 591 (1943). There, a hotel guest sustained injuries to his hand when a porcelain faucet handle, which he was attempting to turn, broke under the pressure. The Superior Court affirmed judgment for defendant n. o. v., and Rhodes, J., (now P. J.), said:

“Defendant had no actual knowledge of any defect in the porcelain handle. The care required of defendant would seem to have been the inspection of the shower in a careful endeavor to discover any defective condition that would cause an injury to a guest. But a failure to make inspection does not create liability unless inspection, if made, would have disclosed the particular defect which made the use harmful”.

In a similar case, Trembly v. Capital Co., 89 Cal. App. 2d 1606, 201 P. 2d 398 (1949), the court affirmed a judgment of nonsuit, and Bray, J., said:

“While the defendants were under the duty of making reasonable inspections (Adams v. Dow Hotel, supra [25 Cal. App. 2d 51, 52, 76 P. 2d 210]) there is no evidence in this case to show that such inspections would have discovered whatever condition it was that caused the handle to crumble. As said in Reinhard v. Lawrence Warehouse Co., 41 Cal. App. 2d 741, 107 P. 2d 501, there is no liability on the owner for injuries to an invitee from a hidden defect which could not have been discovered, either by reasonable care or reasonable inspection”.

In Licari v. Markotos, 180 N. Y. S. 278 (1920), plaintiff had recovered judgment for injuries sus[35]*35tained when a bottle of straw hat dye manufactured by defendant broke in her hand. On appeal, the judgment was reversed and Wagner, J., said:

“Nor is there any force in respondent’s contention, strenuously urged upon this appeal, that the defendant failed in his duty to inspect the bottles before filling them; this for the reason that there is no proof that any examination or inspection would have found the existence of any defect. If such had been the case, it was the plaintiff’s duty to give evidence thereof. Bruckel v. Milhau’s Son, 116 App. Div. 836, 102 N. Y. Supp. 395.

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41 Pa. D. & C.2d 30, 1963 Pa. Dist. & Cnty. Dec. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fucci-v-sommers-pactcomplmonroe-1963.