McHale v. Bensalem Country Club Inc.

18 Pa. D. & C.4th 156, 1993 Pa. Dist. & Cnty. Dec. LEXIS 238
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJanuary 14, 1993
Docketno. 90-11160-16-2
StatusPublished

This text of 18 Pa. D. & C.4th 156 (McHale v. Bensalem Country Club Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McHale v. Bensalem Country Club Inc., 18 Pa. D. & C.4th 156, 1993 Pa. Dist. & Cnty. Dec. LEXIS 238 (Pa. Super. Ct. 1993).

Opinion

Me ANDREWS,

This matter is before the court on the motion of defendant, Bensalem Country Club Inc., d/b/a The Bam, for judgment notwithstanding the verdict or for a new trial, pursuant to Pennsylvania Rule of Civil Procedure 227.1. Plaintiff Mark McHale, on November 28, 1990, filed this civil action in trespass against defendant, seeking to recover damages arising out of injuries inflicted on the plaintiff while a patron at the defendant’s establishment. This matter was tried without a jury on the dates of February 14 and March 2, 1992, before the undersigned. This court, having heard all of the evidence, found against [157]*157defendant and in favor of plaintiff and entered an award in the amount of $30,000. On March 10,1992, defendant filed this motion for post-trial relief. For the reasons set forth below, this motion is denied, and the verdict stands.

FACTS

The defendant is the owner-operator of a nightclub establishment known as The Bam. Live music is featured and alcoholic beverages are available for sale. The plaintiff testified that he arrived at The Bam on March 23, 1990, at approximately 9:45 p.m. and was asked for identification by three doormen attending the entrance way. At approximately 12:15 a.m. on March 24, 1992, the plaintiff was on the second floor of The Bam when he decided to leave. As he approached a stairwell leading from the second floor to the first floor, he was grabbed from behind the neck, picked up and pushed down the stairwell. Plaintiff fell on his face. The assailant was wearing a white polo shirt labeled “staff.”

On the first floor plaintiff was restrained by two men wearing black satin jackets bearing the insignia of The Bam. He recognized one of those men as a doorman who had earlier requested identification from him. These two men repeatedly punched and kicked plaintiff about his body, upper body and legs. One of the assailants then pinned plaintiff against the wall, while the second continued to repeatedly punch and kick plaintiff. Soon the two men were joined in their assault by the man who pushed plaintiff down the stairwell. The two men held plaintiff tightly while the third repeatedly punched plaintiff’s body. The three men then pushed plaintiff out the front door and told him to sit on a nearby rock. Plaintiff sat on the rock for 20 minutes waiting for medical assistance. No aid arrived. Plaintiff’s testimony indi[158]*158cates that he consumed eight bottles of beer between 7:15 p.m. and 12:15 a.m., although no evidence was presented that plaintiff was intoxicated.

Donna Slusarski, a patron at the nightclub on March 23, 1990, also testified and essentially corroborated the testimony of plaintiff. Ms. Slusarski observed the men punching and kicking plaintiff, and identified a jacket presented as an exhibit at trial which was similar to the jacket worn by one of the assailants. The jacket was the type worn by employees of The Bam.

Dr. Mark Medway, a board certified physiatrist at Jeanes Hospital in Philadelphia, Pennsylvania, testified that plaintiff came under his care on April 11, 1990. Dr. Medway treated plaintiff for seven weeks. Dr. Medway’s diagnosis was persistent neck and chest pain caused by two fractured ribs, increased spasm and tenderness in the cervical paraspinal muscle and surrounding muscles, and local tenderness over the right chest wall. Dr. Medway approved of plaintiff’s continued use of anti-inflammatory medication and prescribed a physical therapy program. Plaintiff further testified that because of his injuries, he was forced to miss 16 weeks of work.

Kevin King, the manager at The Bam, testified that the doormen wear white shirts with “The Bam” written on them, black pants and black satin jackets. He further testified that while the jackets have been worn by patrons, it is infrequent. Mr. King testified that doormen are never allowed to use force beyond taking hold of a person’s arm and escorting that person outside. If a patron resists, the doormen were instructed to call the police. Any deviations from standard operating procedure were to be reported. No other witnesses were presented by defendant.

Having heard the evidence this court found that: (1) plaintiff was assaulted at The Bam by defendant’s em[159]*159ployees; (2) plaintiff did not provoke the assaults; and (3) defendant’s employees were acting within their scope of employment.

A judgment notwithstanding the verdict should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. Atkins v. Urban Redevelopment Authority, 489 Pa. 344, 414 A.2d 100 (1980). It is an extreme remedy, properly entered by the trial court only in a clear case where, after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa. Super. 49, 537 A.2d 814 (1987), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988). In considering a motion for judgment notwithstanding the verdict, the verdict winner must be given the benefit of every reasonable inference of fact arising from the evidence, and any conflict in evidence must be resolved in its favor. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977). The issue presently before the court is whether its findings of fact at trial were proper, viewing the evidence in the light most favorable to plaintiff.

Plaintiff has sustained his burden of proof on the issue of whether he was assaulted at The Bam by defendant’s employees. Plaintiff testified that for no apparent reason he was repeatedly punched and kicked by three men, each wearing some part of The Barn’s uniform. Plaintiff recognized at least one of these men as being a doorman that requested identification from him upon his arrival at The Bam. Plaintiff’s testimony was substantially corroborated by Donna Slusarski who recognized two of the assailants as men who functioned as The Barn’s doormen earlier in the evening.

[160]*160No direct evidence was presented tending to prove that the incident did not occur. Rather, defendant would have the court conjecture that the assault did not occur based on Mr. King’s testimony that, to his knowledge, the incident was not reported to those responsible for receiving incident reports. Defendant’s burden cannot be sustained by conjecture. See Anschel v. Pennsylvania Railroad Co., 346 Pa. 123, 29 A.2d 694 (1943). After viewing the evidence in the light most favorable to plaintiff, no two reasonable minds could fail to agree that plaintiff sustained his burden of proving that plaintiff was assaulted at The Bam by defendant’s employees.

Second, defendant has failed to sustain its burden of proof on the issue of whether plaintiff provoked the assaults. Wilbert v. Pittsburgh Consolidation Coal Co., 385 Pa. 149, 122 A.2d 406 (1956) (“Ordinarily, one who asserts an affirmative defense has the burden of proving it....”).

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18 Pa. D. & C.4th 156, 1993 Pa. Dist. & Cnty. Dec. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mchale-v-bensalem-country-club-inc-pactcomplbucks-1993.