Wisniewski v. Great Atlantic & Pacific Tea Co.

226 Pa. Super. 574
CourtSuperior Court of Pennsylvania
DecidedApril 3, 1974
DocketAppeal, No. 274
StatusPublished
Cited by31 cases

This text of 226 Pa. Super. 574 (Wisniewski v. Great Atlantic & Pacific Tea 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
Wisniewski v. Great Atlantic & Pacific Tea Co., 226 Pa. Super. 574 (Pa. Ct. App. 1974).

Opinion

Opinion by

Jacobs, J.,

This is an appeal from judgment against the defendant in a products liability case under Article 2 of the Uniform Commercial Code.1 Both the denial of judgment n.o.v. by the lower court in banc and its refusal to grant a new trial are assigned as error by the defendant on this appeal. We affirm.

“In considering a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Isaac v. Continental Cas. Co., 442 Pa. 480, 482, 276 A.2d 299 (1971). Viewed according to these principles, the facts may be stated as follows:

On December 16, 1967, plaintiff Angela Wisniewski purchased several loaves of bread from one of defendant’s food stores. The following day, she asked her 7-[578]*578year-old daughter to prepare her a sandwich of chipped ham and mayonnaise on toast. The sandwich was made in the kitchen out of Mrs. Wisniewski’s presence, and she consumed it without incident. She then granted the daughter permission to make a sandwich for herself.

Upon being called to the kitchen, Mrs. Wisniewski found the daughter coughing on something in her mouth and gagging. The child spit out a piece of red string and “something brown.” In inspecting the ldtchen for a source of the materials in question, Mrs. Wisniewski noticed the sandwich ingredients, including a loaf of bread purchased the previous day, on the kitchen table. She testified:“...! looked at the bread and I just was shocked. I just couldn’t believe it. . . . It was all brown stuff in there and string and it just looked awful.”

Although the child apparently suffered no further adverse effects, Mrs. Wisniewski was struck by fright at the thought of having herself ingested poison. Her fear either generated or exacerbated a physical illness, which was diagnosed by a specialist in gastroenterology, to whom she had been sent on January 5, 1968, as diffuse and severe hemorrhagic gastritis.2 The brown ma[579]*579terial in the bread was, it appears, some form of coarse paper. Substantial medical expenses were incurred by Mrs. Wisniewski following the incident described above.

The defendant was sued in assumpsit and the case was submitted to a jury on a theory of breach of the implied warranty of merchantability, under §2-314 of the Uniform Commercial Code.3 The heart of this warranty is that the item sold is fit for the ordinary purposes for which such goods are used. R. Nordstrom, Handbook of the Law of Sales §76 (1970). Damages for breach of the warranty would be those resulting from the breach in the ordinary course of events.4 Normally, the damages for such a breach are measured by the difference between the value of the goods accepted and their value as warranted, at the time and place of [580]*580acceptance.5 But special circumstances showing proximate damages of a different amount will alter the rule,6 permitting incidental and consequential damages to be recovered in a proper case.7 Consequential damages include injury to person or property proximately resulting from the breach.8

At trial, the defendant’s written requests for a jury instruction that the verdict had to be in its favor and for an instruction that the burden of proof was on Mrs. Wisniewski to show that she ate bread containing a foreign substance which was injurious to her health were denied.9 The jury returned a verdict in favor of Mrs. Wisniewski in the sum of $4,100.

With regard to the denial of defendant’s motion for judgment n.o.v., it must be remembered that “[t]he fundamental principle underlying the right of withdrawal of cases from the jury is that a case may be withdrawn only in clear cases in which as a matter of law the jury would not be legally justified in arriving at a verdict in favor of the party against whom the withdrawal is made.” 6 Standard Pennsylvania Practice 259 (1960). In the context of the present case, the [581]*581question to be determined is whether the principles of damage law under the pertinent sections of the Uniform Commercial Code as above recited permit recovery for Mrs. Wisniewski’s harm under the facts as above related.

The import of the cited damage sections is that personal injury proximately caused by breach of the warranty of merchantability with respect to food is compensable.10 Proximate causation, or legal causation with respect to negligent conduct,11 is a term familiar in tort law,12 as to which a considerable body of law has developed. It generally denotes more than mere causation-in-fact,13 and serves as a means by which courts are able to place practical limits on liability as a matter of policy.14 In Pennsylvania, a proximate cause is “[t]Iiat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Coyne v. Pittsburgh Rys., 393 Pa. 326, 334, 141 A.2d 830, 835 (1958); Whitley v. Philadelphia Transp. Co., 211 Pa. Superior Ct. 288, 294, 234 A.2d 922, 925 (1967).

Where conduct is a substantial factor in bringing about a certain harm, and where there is no rule of law relieving the actor from liability because of the manner in which the conduct has resulted in the harm, the [582]*582test for proximate or legal causation is met in negligence law, and the harm may be attributed to the conduct. Restatement (Second) of Torts §431 (1965); see Dollison v. Baltimore & O. R.R., 446 Pa. 96, 284 A.2d 704 (1971) (section 431 of Restatement (Second) of Torts cited with apparent approval).

With respect to the substantial factor requirement, the following considerations are important in determining whether conduct constitutes such a factor: the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; whether the conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; and lapse of time. Restatement (Second) of Torts §433 (1965); see Heck v. Beryllium Corp., 424 Pa. 140, 226 A.2d 87 (1966) (section 433 of Restatement (Second) of Torts followed as to first consideration listed above).

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Cite This Page — Counsel Stack

Bluebook (online)
226 Pa. Super. 574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisniewski-v-great-atlantic-pacific-tea-co-pasuperct-1974.