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MORAN v. VALLEY FORGE DRIVE- THEATER (10/03/68)

decided: October 3, 1968.

MORAN
v.
VALLEY FORGE DRIVE-IN THEATER, INC. ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 64-6505, in case of Donald J. Moran v. Valley Forge Drive-In Theater, Inc., et al.

COUNSEL

Albert R. Subers, with him Bean, DeAngelis, Tredinnick & Giangiulio, for appellants.

Lindley M. Cowperthwait, Jr., with him Charles Potash, and Wisler, Pearlstine, Talone & Gerber, and Fox, Rothschild, O'Brien & Frankel, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen dissents. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Jones

[ 431 Pa. Page 434]

This appeal challenges the propriety of the refusal of the Court of Common Pleas of Montgomery County to enter a judgment n.o.v. or, in the alternative, grant a new trial in a trespass action for personal injuries instituted by Donald J. Moran against Valley Forge Theater, Inc. and certain individuals, allegedly the owners and operators of a drive-in theater (Theater), wherein a $12,000 verdict was entered in Moran's favor.

On May 17, 1963, Moran, with his wife and two minor children, purchased tickets for the evening show at the Theater and entered upon the Theater premises. At the conclusion of the first movie showing, Moran went to the theater rest room and, while approaching the rest room, observed 6 or 8 teenagers acting in a boisterous manner near the rest room. While Moran was in the rest room a lighted firecracker explosion took place therein as a result of which, for a period of time, Moran lost his hearing, and, thereafter, had a loud ringing in his ear accompanied by shock.

[ 431 Pa. Page 435]

Judgment N.O.V.

The Theater urges that the court below erred in refusing to enter judgment n.o.v. in that Moran failed to carry his burden of proving negligence on the part of the Theater which caused the accident. The thrust of the Theater's argument is that there was no testimony showing that it knew or had reason to know of the likelihood of a firecracker explosion in the rest room as distinguished from other portions of the Theater premises.

The record reveals that, on rather frequent occasions prior to the accident, boisterous and disorderly conduct had taken place on the Theater premises. On approximately twelve occasions each year over the two year period immediately preceding this accident there had been firecracker explosions on the Theater's premises and, on one occasion, a firecracker had been exploded in the men's rest room of the Theater; on one occasion, Theater guardians had been roughly treated and other acts of rowdyism had taken place in the same two year period. The Theater gave no warning, either by prohibiting the lighting of firecrackers or by signs warning patrons of the possibility of firecrackers being exploded on the premises, although on the night of the accident three rampmen, charged with maintaining decorum, were on duty.

After a study of this record, we are convinced that Moran did establish sufficient facts from which the jury reasonably could have inferred negligence on the part of the Theater. We believe the court below adequately disposed of this contention in the following manner: "There is a well established Rule of Law that the liability of a possessor of land who holds that land open to ...


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