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LEARY v. LAWRENCE SALES CORPORATION (03/18/71)

decided: March 18, 1971.

LEARY, APPELLANT,
v.
LAWRENCE SALES CORPORATION



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1963, No. 5273, in case of Hull Leary v. Lawrence Sales Corporation t/a Kelly's Korner Department Store and Shopping Cart, Inc.

COUNSEL

James E. Beasley, with him James E. Colleran and Daniel L. Thistle, and Beasley, Albert, Hewson & Casey, for appellant.

S. Robert Levant, with him Ehrenreich, Sidkoff, Edelstein & Shusterman, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Mr. Justice Cohen took no part in the decision of this case.

Author: Eagen

[ 442 Pa. Page 390]

This is an appeal from an order in the court below refusing to take off a compulsory non-suit entered by the trial court in a personal injury action.

In determining the correctness of the order appealed from, it is fundamental that the trial testimony must be read in a light most favorable to the plaintiff, and also that the plaintiff is entitled to the benefit of every reasonable inference arising therefrom: Perciavelle v. Smith, 434 Pa. 86, 252 A.2d 702 (1969).

A summary of the pertinent facts, as disclosed by the record, is as follows:

Lawrence Sales Corporation [Lawrence] owns and operates a farmer's market known as Kelly's Korner Department Store [Kelly's Korner]. Several portions of the interior of the market premises are leased to various entities for varying retail business enterprises. One part is leased to Shopping Cart, Inc., [Shopping Cart] in which it operates a retail grocery store. This

[ 442 Pa. Page 391]

    grocery store fronts on a main aisle running through the market, and the check-out booths of the grocery store are located along this aisle. However, the area covered by the aisle is not within that portion of the premises leased to Shopping Cart, and the lease from Lawrence to Shopping Cart specifically provides that the lessor will furnish "broom cleaning" for this aisle. Within the area leased by Shopping Cart, it maintains and provides a quantity of shopping carts for the use of customers in the grocery store, and the area is so constructed that these particular carts cannot be removed from the leased area. Under its lease with Lawrence, Shopping Cart is obligated to supply an additional 250 carts for "the exclusive use of the shopping public on the entire [market] premises."*fn1

On the date involved the plaintiff, Hull Leary, visited Shopping Cart's grocery store with a friend, John Powers. After making some purchases he left Powers at one of the check-out booths to complete the checking-out process and walked into the main aisle of the market to secure one of the shopping carts which was stored in this aisle for use throughout the entire market.*fn2 After he had proceeded into the aisle to a point about seven feet from the check-out booths, he slipped

[ 442 Pa. Page 392]

    and fell on a partially-eaten hot dog which was lying on the floor of the aisle.

To recover damages for the injuries suffered, Leary sued Lawrence and Shopping Cart. During the trial, the claim against Lawrence was settled for $100,000 and a compulsory non-suit was entered in favor of Shopping Cart on the basis that this defendant had no legal duty to maintain the area where the plaintiff fell. Subsequently, the court ...


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