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ANTHONY PUSHNIK v. WINKY'S DRIVE RESTAURANTS (09/27/76)

decided: September 27, 1976.

ANTHONY PUSHNIK
v.
WINKY'S DRIVE IN RESTAURANTS, INC., A CORPORATION, ET AL., APPELLANTS, V. WALTER J. SMITH ET AL. APPEAL OF JIFFY STEAK COMPANY



COUNSEL

James F. Manley, Pittsburgh, for appellant in No. 285.

W. Arch Irvin, Jr., Pittsburgh, for appellant in No. 299.

George A. Conti, Jr., Edgar P. Herrington, Jr., Patrick R. Riley, Costello & Berk, Greensburg, for appellee.

Price, Judge. Spaeth, J., files a concurring opinion in which Jacobs and Hoffman, JJ., join. Watkins, P. J., and Van der Voort, J., concur in the result.

Author: Price

[ 242 Pa. Super. Page 328]

Defendant-appellant Winky's Greensburg, Inc. (Winky's), operates a restaurant at the intersection of Route 119 and Huff Avenue, in South Greensburg, Pennsylvania. In 1969, the food-service aspect of Winky's

[ 242 Pa. Super. Page 329]

    operation could have been characterized by its efficiency. All food was prepared "to go." No tables or seats were provided for patrons. A diner had the option of partaking of his repast while seated in his automobile in the parking lot provided by Winky's or of taking his meal elsewhere. Orders were placed by entering a glass-enclosed anteroom in front of the building. There, the customer approached a window over a stainless steel counter and gave the order to a waiting clerk. The clerk placed the ordered items in a bag, the customer paid his bill, and the transaction was completed.

On the fateful day of March 23, 1969, plaintiff-appellee Anthony Pushnik entered the glass-enclosed anteroom and ordered a meal. At the same time, defendant Walter J. Smith had just finished his meal while seated in his automobile, and was preparing to depart. Smith's automobile was parked directly in front of the glass-enclosed room. Smith testified that he started his automobile, and, due to some slippery matter on his right shoe, his foot slipped from the brake to the accelerator. The automobile responded instantly, crashing through the glass enclosure and pinning Mr. Pushnik against the stainless steel counter. Mr. Pushnik, no match for his two steel oppressors, suffered severe injuries.

Mr. Pushnik filed a suit in trespass against Winky's, Winky's Drive In Restaurants, Inc., and Saralouise F. Rose (now Saralouise F. Hirshberg). Winky's joined Nathan Cantor and Walter Smith as additional defendants. Mrs. Hirshberg joined Smith, Cantor, and Jiffy Steak Company (Jiffy) as additional defendants.*fn1

At the close of appellee's case, the lower court granted compulsory nonsuits in favor of Mrs. Hirshberg and

[ 242 Pa. Super. Page 330]

Winky's Drive In Restaurants, Inc. The case then proceeded to conclusion and a jury awarded appellee a verdict of $75,000.00 against Jiffy, Winky's, and Smith. The jury found in favor of Nathan Cantor. Jiffy and Winky's have appealed the judgments entered on the verdicts against them. Mr. Smith is not a party to this appeal.

Appellee based his cause of action against Jiffy and Winky's on the theory that the appellants negligently failed to warn him of a dangerous condition existing on the land or to put the premises in a reasonably safe condition. See Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970); Crotty v. Reading Industries, Inc., 237 Pa. Super. 1, 345 A.2d 259 (1975). Appellee charges that the appellants were placed on notice of the dangerous condition of the property by the fact that two similar accidents had occurred in the past, one in 1966 and one in 1967.*fn2 Appellee contends that once appellants were notified of the dangerous condition, they were under a duty, at least, to take some precaution against future accidents, such as erecting a barrier between the parking lot and the glass enclosure.

Appellants contend that the lower court erred in denying their motions for judgments N.O.V. because, even assuming negligence on their part, they cannot be held liable because their conduct was not the proximate cause of appellee's injuries. More specifically, Jiffy contends that the sole proximate cause of the accident was the negligence of the driver, Smith, while Winky's contends that Smith's conduct was a superseding cause of the accident.

This court recently had the opportunity to examine similar arguments in Noon v. Knavel, 234 Pa. Super. 198, 339 A.2d 545 (1975). In that case, the plaintiff was injured while making a telephone call when an uncontrolled

[ 242 Pa. Super. Page 331]

    automobile careened through the telephone booth that he was occupying. The plaintiff sued, inter alia, the owner of the booth, General Telephone Company of Pennsylvania, charging that the defendant had been negligent in locating its booth in a dangerous area. The defendant appealed a judgment in the plaintiff's favor, contending in the alternative that its conduct was not the cause of the plaintiff's injuries, and that the automobile driver's negligence was a superseding cause of the injuries. This court, interpreting the applicable law as stated by the Supreme Court of Pennsylvania, rejected both arguments.

Applying the same principles of law utilized in Noon v. Knavel, supra, it must first be determined whether appellants' conduct was a substantial factor in bringing about the appellee's harm. Restatement (Second) of Torts § 431 (1965); Flinkinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). To have been so, appellants' conduct must have been a factual cause of the harm. Restatement (Second) of Torts § 432(1) (1965); Noon v. Knavel, supra.

In this case, appellants do not contest the fact that their negligence was a factual cause of the harm, nor could they do so. It cannot be said that appellee would have sustained the same harm if appellants had not been negligent. For example, if appellants had erected a barrier in front of the building, it is probable that the harm would not have been sustained. Thus, appellants' conduct was a factual cause of appellee's injuries.

Once it is determined that appellants' conduct was a factual cause of the harm, whether the conduct was a substantial factor in bringing about the harm is, under these circumstances, interrelated with whether any of the other factual causes were superseding causes. If appellants' conduct was the ...


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