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PHILLIPS v. WINTERS' CLEANERS & TAILORS

June 29, 1972

James A. PHILLIPS, Jr.
v.
WINTERS' CLEANERS AND TAILORS, INC., et al.


Luongo, District Judge.


The opinion of the court was delivered by: LUONGO

Plaintiff, James A. Phillips, Jr., was injured when he sustained an electric shock while on the premises of Winters' Cleaners and Tailors, Inc. (Winters' Cleaners) plant on January 3, 1968. Plaintiff is the inventor of the Steam Kat, a patented water heating device for use in commercial laundries. At the time he sustained the injury, plaintiff was an officer and principal of the Steam Kat Corporation, manufacturer of the device. Sometime prior to the date of the accident, Winters' Cleaners had purchased a Steam Kat from Wendale Corporation, trading as Best Equipment Company (Best Equipment). Winters' Cleaners had on its premises other machinery and equipment, including a vacuum pump manufactured by Rema Corporation. Approximately two months before the accident, Winters' Cleaners had had some electrical work done on its premises by Donald A. Rossi, individually and trading as G. J. Rossi and Son, to correct deficiencies noted in certain violation notices issued by the City of Philadelphia.

 Just short of two years after the accident, plaintiff instituted suit against Winters' Cleaners, the occupier of the premises; Best Equipment, supplier of the Steam Kat; Rema Corporation, supplier of the vacuum pump; and Rossi, the electrical contractor. The matter came on for trial (confined initially to liability) before a jury on January 17 and 18, 1972. At the outset, plaintiff's counsel announced that he would not seek recovery against Rema Corporation, but because of cross-claims among the defendants, the case as to Rema could not then be dismissed. At the close of plaintiff's evidence, all defendants filed motions for directed verdict under Rule 50. Plaintiff did not oppose the motions of Rema and Best Equipment, and after cross-claims by and against those defendants had been withdrawn, their motions were granted. Plaintiff did oppose the Rule 50 motions of Winters' Cleaners and Rossi. After argument, and after the remaining cross-claims between and among the defendants had been withdrawn, Rossi's motion for directed verdict was granted, but Winters' Cleaners' was denied. Winters' Cleaners offered no evidence. The case was then submitted to the jury which returned a verdict in favor of the only remaining defendant, Winters' Cleaners.

 Before the court now are plaintiff's

 A. Motion for Judgment against Winters' Cleaners Notwithstanding the Verdict in the latter's favor, or in the Alternative, for New Trial as to Winters' Cleaners; and

 B. Motion to Vacate Judgment entered in favor of Rossi and for New Trial as to Rossi.

 The grounds for the motions are:

 (1) the court erred in submitting to the jury the question whether plaintiff, while on Winters' Cleaners' premises, was there as a business invitee or a licensee;

 (2) the court erred in denying plaintiff's motion for directed verdict against Winters' Cleaners;

 (3) the jury's verdict in favor of Winters' Cleaners is against the clear weight of the evidence;

 (4) various errors in the court's charge and rulings at trial; and

 (5) the court erred in granting Rossi's motion for directed verdict.

 The motions will be denied.

 Factual Background

 In 1967, Best Equipment sold a Steam Kat to Winters' Cleaners. On January 3, 1968, plaintiff, whose duties with the Steam Kat Corporation included sales and promotional work, made a call at the Winters' Cleaners plant at the request of William Becker, a representative of Best Equipment. While there, Phillips asked for and obtained from Robert Winters, production manager and part owner of Winters' Cleaners, permission to look at the laundry and dry cleaning equipment in the basement. The evidence is not at all clear whether the visit to the basement was to enable Phillips to check the controls on the Steam Kat because of a complaint that the water was too hot; or to enable Phillips to take pictures of the Steam Kat and other equipment for his promotional purposes; or to enable Phillips to see an unusual drainage system hookup. In any event, plaintiff, Becker and Winters went to the basement. Plaintiff bent over to look at certain controls on the Steam Kat, with one hand on an aquastat attached to the Steam Kat. He turned to speak to Becker and Winters, or both, and to steady himself, he placed his other hand on a copper condensate drain pipe connected to the Rema vacuum pump. At that point plaintiff received an electric shock, became frozen to the equipment, and remained so until he was freed by Becker. Shortly after the accident, defendant Rossi, whose place of business was located nearby, responded to a telephone call, checked the equipment and ascertained that a pipe (not specifically identified) attached to the Rema pump was electrically energized. He cut off the power to the Rema pump as a temporary measure. Later, the equipment was checked more thoroughly and it was then found that the plate on the switch box to the Rema pump was loose.

 In the preceding October or November (some 2 or 3 months prior to the accident), after receipt of violation notices from the City of Philadelphia, Winters' Cleaners had hired Rossi, an independent electrical contractor, to perform the work necessary to correct the electrical violations. The work was apparently done *fn1" to the satisfaction of the City and was completed sometime prior to November 6, 1967, the date Rossi's bill was submitted to Winters' Cleaners. One of the items of work performed by Rossi was the installation of an electrical connection in the Rema pump. All such electrical work is required by the Philadelphia Electrical Code to be properly grounded. There was uncontradicted expert testimony offered by plaintiff that it is impossible to get an electric shock from electrical equipment which is properly grounded.

 Some of plaintiff's evidence was presented by calling adverse parties as witnesses, e.g. Donald Rossi and Robert Winters. Plaintiff elicited from Rossi testimony to the effect that Rossi had received a telephone call from one of the Winters brothers approximately one week prior to the date of Phillips' accident advising that they were having some trouble with the Rema pump and asking Rossi to stop in to check it. Rossi did not stop in during the week or so between the time of the call and the date of the accident. In the cross-examination of Rossi by Winters' Cleaners' attorney, Rossi was asked whether he had been told in that telephone call from Winters that they were experiencing electric shocks. Rossi testified that he did not believe that anything had been said at that time about electric shocks because, if electric shocks had been mentioned, he "definitely" would have visited the premises promptly and would not have waited a week before responding to the call.

 Robert Winters was also called as plaintiff's witness. On cross-examination by his own counsel, he was asked one question to which he responded as follows:

 
"Q. I have just one question at this point. When you walked down the cellar with Mr. Phillips, the plaintiff, did you ever have an inkling that there was anything wrong with that Rema unit?
 
"A. No."

 DISCUSSION

 The various grounds assigned by plaintiff in support of his motion will be discussed seriatim.

 1. The Court erred in submitting to the jury the issue of plaintiff's status.

 It is plaintiff's contention that the record supports only one conclusion, i.e. that plaintiff was a business invitee, and that the court should have declared plaintiff's status as such as a matter of law and should not have submitted to the jury the question whether plaintiff was a business invitee or a licensee.

 A business invitee is one who is invited or permitted to enter or remain on the premises of another for a purpose directly or indirectly connected with business dealings between them. Argo v. Goodstein, 438 Pa. 468, 265 A. 2d 783 (1970). A licensee is one who is privileged to enter or remain on premises only by virtue of the possessor's consent. Farrell v. Bonner, 424 Pa. 301, 227 A. 2d 683 (1967).

 A possessor of land owes a somewhat higher duty to a business invitee than to a licensee. To a business invitee, the possessor owes the duty to exercise reasonable care to make the premises safe for him, or to warn of dangers which are known to the possessor or which the possessor should have became aware of in the exercise of reasonable care, and which are unknown to the invitee. Stark v. Lehigh Foundries, 388 Pa. 1, 130 A. 2d 123 (1957); Argo v. Goodstein, supra. To a licensee, on the other hand, the possessor of land owes the duty to warn of a dangerous condition only if the possessor has knowledge of it and realizes that the condition involves an ...


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