The opinion of the court was delivered by: WEBER
This is a diversity negligence case arising from a fall on August 18, 1961 by wife plaintiff on the premises of defendant Bank, when the heel of her shoe became caught in one of the small holes of a rubber door mat placed immediately outside the entrance of the bank. The jury returned a verdict in the total amount of $20,000 for both plaintiffs, and defendant now moves for Judgment N.O.V.
The statement of the facts of the accident set forth in the opinion of Judge Rosenberg reported in D.C., 231 F. Supp. 1, recites substantially the same evidence as was produced at the second trial of this matter, except for one additional witness produced by defendant at this trial. This witness was a professional engineer who was experienced in building design and the enforcement of state building code requirements. He testified that the mat was safe for its purpose at the time of the accident, that it was of a type widely used in business establishments at that time, and that the holes and serrations in the surface were inserted for safety purposes.
On the retrial of this matter the Court has determined that plaintiffs were residents of Florida at the time of the filing of the within complaint and that the necessary diversity exists. (see 350 F.2d 874, 3rd Cir. 1965).
The defendant's principal argument is that the evidence fails to show that in maintaining the mat in its entryway it had created or maintained a condition on its property involving an unreasonable risk of harm to business visitors, under the standards set forth in § 343 of the Restatement of the Law, Torts.
Wife plaintiff was wearing a high-heeled shoe, described by a shoe salesman as a "summer shoe, medium heel, for dress or street wear." By "medium" he explained that he meant a heel between a flat heel and a spike heel, a spike heel being an inch or so higher. He testified that as of the time of the accident fifty to sixty percent of the women's shoes sold were of this type. The heels were about one-half inch in diameter at the bottom. The holes in the defendant's rubber mat were five-eighths inch in diameter.
The mat was originally purchased in 1953. Plaintiff produced the seller-manufacturer of this mat who testified that in 1959 he visited the manager of defendant's bank to try to convince the bank to order a new mat because the heels worn by women in recent years had become thinner to the point where the perforations in the mat where too large for safety.
Both husband and wife testified that upon their reporting the fall to the defendant's manager of the bank he remarked that he would have to call his Pittsburgh office right away because there had been previous instances of women catching their heels in this mat.
While defendant denied such instances of prior notice, the credibility of this testimony was for the jury, and the plaintiffs are entitled to a consideration of all evidence, and all inferences arising therefrom, in the light most favorable to them. In any event the defendant, having admitted ownership and control, is charged with notice of the conditions on his property.
The question then becomes one of whether defendant, in maintaining a rubber door mat at a point just outside its glass front entry door, with perforations for draining of five-eighths inch diameter, was knowingly maintaining a condition involving an unreasonable risk to business visitors, and failed to exercise reasonable care to make the condition safe or to warn the visitors of peril which they might not discover.
Both parties agree that the rule governing defendant's liability is that stated in Restatement of the Law, Torts § 343. We agree that this expresses the law of Pennsylvania which controls in this diversity case. It has been specifically approved and adopted in Pennsylvania. See Wild v. Atlantic Refining Co., 195 F.2d 151 (3rd Cir., 1952), and Pennsylvania authorities therein cited.
Defendant has cited Nelson v. Facciola, 197 Pa.Super. 502, 179 A.2d 258 (1962), to the effect that women who wear spike heel shoes must bear the risk of injury. First it must be noted that the verdict under appeal in that case was rendered for the defendant. Furthermore, the case involved a woman plaintiff wearing heels three inches high, which measured one-eighth of an inch in width at the bottom. The plaintiff failed to use a hand rail provided. She was familiar with the nature of the stair treads, which consisted of two boards on each step laid side by side with a space between them one-eighth to one-fourth inch in width. She knew the steps, being those of the apartment house where she lived and which she traversed several times each day for one year prior to the accident. She admitted that she was aware of the construction of the steps and knew that her spike heels could catch in the crack. She admitted that she did not feel each step as she descended, nor did she calculate where to put her heel to avoid the known crack. The appellate court concluded that the questions of negligence and contributory negligence were properly submitted to the jury.
Defendant urges the rule of Yearsley v. American Stores Co., 97 Pa.Super. 275 (1929), upon us as the controlling law of Pennsylvania. There the appellate court in a per curiam decision adopted the short opinion of the trial judge who granted a non-suit. The woman plaintiff fell when her tapered heel caught in the interstices of a heating register grating on the floor of defendant's store. Plaintiff contended that the proximate cause of her fall was that the register, in falling, came out of its position because it was not fastened to the floor. The court disagreed and held that the cause was properly the wedging of her narrow heel in the grating. ...