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KLINE v. S. M. FLICKINGER

February 5, 1962

Olive Gertrude KLINE and Elmer P. Kline, her husband, Plaintiffs,
v.
S. M. FLICKINGER, INC., a New York corporation, and Super-Duper, Inc., a NewYork Corporation, a subsidiary of the S. M. Flickinger Company, Inc., and LouisGreco, Original Defendants, and Louis GRECO, individually and d/b/a 'Red andWhiteGrocery', Third-Party Defendant



The opinion of the court was delivered by: GOURLEY

This is a diversity suit for personal injuries stemming from an accident when the wife plaintiff fell at the entrance while leaving a grocery store operated by Louis Greco, third-party defendant, and allegedly in possession and control of the other corporate defendants.

Upon jury trial, a verdict was returned in favor of all defendants.

 The sole matter before the Court is plaintiff's Motion for New Trial based upon the following reasons:

 1. The Court erred in striking the testimony of plaintiff's witness, John Douglas, as it pertained to the design of the proximity of the sill to the edge of the step.

 2. The verdict was against the weight of the evidence.

 Plaintiff contended that the original defendants designed and constructed the market and were responsible for its inspection, supervision and operation, and that Louis Greco, third-party defendant, served in a master-servant relationship, or in the alternative engaged in a joint enterprise.

 STRIKING TESTIMONY AS IT PERTAINED TO DESIGN OF THE PROXIMITY OF THE SILL TO THE EDGE OF THE STEP

 Plaintiff counsel, at time of pretrial conference, had taken the position both in his pretrial narrative statement, filed with the Court, as well as in his own oral expressions that the shoe of the wife plaintiff's right foot caught on a protruding screw on the threshold of the door, reiterating that a space existed beneath the sill causing it to go downward under the weight of a person's body and leaving the screw protruding. In addition, plaintiff's counsel, in his opening address to the jury, repeated this thesis.

 In the midst of trial, plaintiff counsel, through his witness, John Douglas, sought to interject a new thesis of negligence of which neither the Court nor defense, at pretrial or any other time, had been apprised either directly or by inference. Plaintiff sought to establish that the existing construction was of faulty design in that a step was situated in close proximity to the threshold, being in violation of common practice.

 To fairly meet such testimony, after the trial had proceeded into its third day, defendants would have to have been afforded opportunity to locate and secure testimony of expert witnesses on store door design and the common practice of such construction.

 Recognizing that such testimony was in complete contradiction with the pretrial statement and as such could have been barred forthwith, the Court, nevertheless, permitted plaintiff's counsel the alternative of allowing testimony as to defective door design to remain in the record and granting a continuance to afford defendants an opportunity to meet such evidence or to agree to have said testimony stricken and continue with the trial. Counsel for the plaintiffs chose the latter whereupon the Court ordered the testimony expunged.

 I can not concede that an application of elementary pretrial procedure liberally applied so as to prevent surprise upon any litigant prejudiced the interest of any party to this ...


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