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BORSA v. GREAT ATLANTIC & PACIFIC TEA COMPANY (12/16/65)

decided: December 16, 1965.

BORSA
v.
GREAT ATLANTIC & PACIFIC TEA COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of McKean County, June T., 1964, No. 80, in case of Cesidio Borsa, individually and as executor of estate of Rose Borsa, deceased, v. Great Atlantic & Pacific Tea Company.

COUNSEL

Robert J. Healy, with him Healy & Brandow, for appellant.

Murray R. Garber, with him Henry A. Onofrio, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 207 Pa. Super. Page 65]

On Good Friday, April 12, 1963, Rose Borsa fell in the appellant's store in Bradford, Pennsylvania. The fall occurred shortly after 3:00 o'clock p.m. Appellant's store had been closed on that day from 12:00 o'clock noon until 3:00 o'clock p.m. in observance of Good Friday. Rose Borsa suffered injuries as the result of her fall and she and her husband, Cesidio Borsa, brought an action in trespass against the appellant. Mrs. Borsa sought to recover for her pain and suffering and Mr. Borsa asked for the medical expenses and his loss of consortium. Prior to trial Mrs. Borsa died for reasons unconnected with her injuries, and her husband as her personal representative was substituted for her. The jury brought in a verdict in favor of the plaintiff, Cesidio Borsa, individually, in the amount of $5,283.35. Appellant's motions for a new trial and judgment n.o.v. were refused by the court below and judgment

[ 207 Pa. Super. Page 66]

    was entered on the verdict. It is from this judgment that the appellant appeals.

At trial the precise point at which Mrs. Borsa fell was disputed. Mrs. Robert Shaffer, who was also shopping in the store at the time, testified that Mrs. Borsa fell over a small bench, knee high or lower, which protruded six inches to a foot from under a counter or table into the aisle at the produce counter. She also said that after she and Mr. Grisham, appellant's produce manager, had helped Mrs. Borsa to her feet, Grisham "reached up and took a plant from somewhere, pulled the bench all the way out as far as he could get it and put this plant on it." Grisham testified that Mrs. Borsa fell near an Easter flower display table in the same aisle but several feet away from the place designated by Mrs. Shaffer. This display had two steps at each end, the lower step protruding beyond the step above it. There were flowers on top of the table but none on the lower step at the time of the fall. Grisham said that he put a plant on the lower step after Mrs. Borsa fell. Shelves were restocked and the area in question was swept and cleaned by appellant's employees while the store was closed from noon to 3:00 p.m.

Appellant argues that it was not negligent as a matter of law if Mrs. Borsa fell over the protruding bench because notice was not proved. It also argues that it was not negligent if Mrs. Borsa fell over a step of the flower display table because the display table was not negligently constructed or maintained. It also asks us to declare Mrs. Borsa contributorily negligent as a matter of law. If a judgment n.o.v. is not granted, appellant asks for a new trial on the ground that the jury should not have been allowed to consider both factual versions since under one version Mrs. Borsa could not recover as a matter of law.

[ 207 Pa. Super. Page 67]

Mrs. Borsa was a business visitor and as such was owed a duty by appellant to maintain the premises in a reasonably safe condition for the contemplated uses thereof and the purpose for which the invitation was extended. Penn v. Isaly Dairy Co., 413 Pa. 548, 198 A.2d 322 (1964); Finney v. G. C. Murphy Company, 406 Pa. 555, 178 A.2d 719 (1962). The Supreme Court has also said that Section 343 of the Restatement of Torts is an accurate statement of the law of Pennsylvania. Kubacki v. Citizens Water Company of Washington, 403 Pa. 472, 170 A.2d 349 (1961); Martino v. Great Atlantic & Pacific Tea Company, 419 Pa. 229, 213 A.2d 608 (1965). Section 343, as stated in the Kubacki case, provides:

"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm without relinquishing ...


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