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REGELSKI v. F. W. WOOLWORTH CO. (01/04/67)

decided: January 4, 1967.

REGELSKI, APPELLANT,
v.
F. W. WOOLWORTH CO.



Appeal from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1965, No. 214, in case of Mary Regelski v. F. W. Woolworth Co. of Pa.

COUNSEL

Sol Lubin, with him Albert N. Danoff, and Winkler, Danoff, Lubin and Toole, for appellant.

Charles D. Lemmond, Jr., with him J. Thirwall Griffith, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Eagen concur in the result. Mr. Chief Justice Bell dissents.

Author: Musmanno

[ 423 Pa. Page 525]

Mary Regelski, the plaintiff, was injured when some children, unknown to her, so violently shoved and pushed a swinging door behind her that she fell as she was entering the store of F. W. Woolworth Co. in Nanticoke. She filed suit in trespass against Woolworth averring that the defendant for a long time prior to December 23, 1964, the day of the mishap, had negligently

[ 423 Pa. Page 526]

    allowed children to congregate at the doors of the store, threatening the safety of customers.

The defendant filed preliminary objections stating that the plaintiff had not set forth a cause of action because it did not allege any defect in the doors of the defendant's store, nor set forth facts which indicated that the defendant was duty-bound to warn the plaintiff of the acts of the unknown and unnamed children. The court sustained the preliminary objections and dismissed the complaint. The plaintiff appealed.

Since the establishment of the defendant was a place of business open to the public it owed the plaintiff the duty of maintaining the premises in a reasonably safe condition for the contemplated use thereof and for the purposes for which the invitation to customers was extended. Nettis v. Gen. Tire Co., 317 Pa. 204; Adams v. J. C. Penney Co., 411 Pa. 653.

The lower court, in upholding the demurrer, stated that the plaintiff had not pleaded a defect in the door "either known to defendant or ascertainable by reasonable inspection." This is dipping a bucket into an empty well. The plaintiff did not claim that the defendant's doors were defective. She complained that the doors were improperly attended. A cradle with tall sides can be the safest place in the world for the infant sleeping within, but if the cradle is violently rocked, it can become as dangerous as a falling object.

The plaintiff charged the defendant with a failure to prevent its doors from being operated improperly by children, not any particular children, but children. Thus the court's bucket of rationalization goes deeper into the void when the court says that the plaintiff not only did not identify the children who shoved and swung the door roughly but that she did not plead that the overplayful children of the day of the accident ...


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