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DOUGHERTY v. GREAT ATLANTIC & PACIFIC TEA COMPANY (04/17/72)

decided: April 17, 1972.

DOUGHERTY, APPELLANT,
v.
GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.



Appeal from judgment of Court of Common Pleas of Delaware County, No. 10362 of 1969, in case of Mary Dougherty v. The Great Atlantic & Pacific Tea Company, Inc.

COUNSEL

John A. Prodoehl, Jr., with him Proedoehl and Riess, for appellant.

S. Walter Foulkrod, III, with him F. Kirk Adams, Harold L. Ervin, Jr., and Butler, Beatty, Greer & Johnson, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone and Packel, JJ. Opinion by Packel, J. Wright, P. J., Watkins and Jacobs, JJ., would affirm on the opinion of Judge Bloom.

Author: PACKEL

[ 221 Pa. Super. Page 222]

A jar of olives fell from a shelf in a supermarket and struck a shopper. The jury returned a verdict for the shopper in the amount of $11,497.45, but judgment n.o.v. was granted by the court.

The real question presented by this appeal is whether the stacking of goods for selection by consumers on a shelf six feet or higher is sufficient to warrant a jury conclusion of liability. The assistant manager of the supermarket testified that he was 5' 11" and that he would have to take a short stretch to get up to the top shelf. The shopper was approximately 5' tall. On the top shelf were two rows of olive jars. The jar which struck the shopper apparently came from the upper row. There was no specific testimony as to what caused the jar to fall.

Pennsylvania cases deny the applicability of res ipsa loquitur or the exclusive control doctrine to cases of this sort. Cohen v. Penn Fruit Co., Inc., 192 Pa. Superior Ct. 244, 159 A.2d 558 (1960); Jones v. Sanitary Market Co., 185 Pa. Superior Ct. 163, 137 A.2d 859 (1958); Rogers v. Horn & Hardart Baking Co., 183 Pa. Superior Ct. 83, 127 A.2d 762 (1956); DeClerico v. Gimbel Bros., Inc., 160 Pa. Superior Ct. 197, 50 A.2d 716 (1947).

Nevertheless, our courts have sustained jury determinations of liability where there was evidence that merchandise had been improperly stacked. Doerflinger v. Davis, 412 Pa. 401, 194 A.2d 897 (1963); Garber v. Great Atlantic & Pacific Tea Co., 397 Pa. 323, 155 A.2d 346 (1959); Wooley v. Great Atlantic & Pacific Tea Co., 180 F. Supp. 529 (W.D. Pa. 1960), aff'd, 281 F.

[ 221 Pa. Super. Page 2232]

    d 78 (3d Cir. 1960). Two cases specifically refer to stacking on shelves beyond the normal reach of consumers, and in each of them the inacessibility was apparently considered as a factor for the imposition of liability. Safeway Stores, Inc. v. Leake, 147 A.2d 439 (D.C. Mun. App. 1959); Pratt v. Womack, 359 P. 2d 223 (Okla. 1961).

The position of the appellant is that the risk of injury arises because of the high shelf, in that an employee may not stack the items properly or in that a customer's difficulty in stretching to reach the items may cause a disarray which can lead to an ultimate fall of an item. The appellee argued that the imposition of such a duty has no basis and would lead to economic waste in limiting the vertical space available for the conduct of such business enterprises.

We are of the view that such an economic loss, assuming that it exists, is to avoid a risk which should be borne by such commercial ...


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