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MORGAN v. BUCKS ASSOCS.

March 10, 1977

NANCY MORGAN
v.
BUCKS ASSOCIATES, A Pennsylvania Limited Partnership v. R. H. MACY & COMPANY t/a BAMBERGER'S



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 In this action based on diversity of citizenship, the plaintiff, an employee of Bamberger's Department Store, alleged that the defendant, Bucks Associates ("Bucks"), owner of the Oxford Valley Mall, a shopping center in which the Bamberger's store was located, was negligent in failing to exercise reasonable care to protect her from an assault which took place after she left work and was walking to her automobile parked nearby. Defendant Bucks has moved this Court for a new trial or for a judgment n.o.v. After carefully considering the grounds urged by defendant, this Court has determined that it must deny the motion.

 This action was tried before a jury which returned a verdict in favor of the plaintiff, Nancy Morgan, against Bucks on July 22, 1976. *fn1" Plaintiff brought this action against Bucks to recover damages for the assault which occurred on July 20, 1974 on the parking lot of the Oxford Valley Mall, a 140 acre shopping center (N.T. 3-37) owned and operated by the defendant. The five major department stores and approximately 160 smaller retail stores at the mall, which were open until 9:30 or 10:00 p.m. each night, employed approximately 2,000 persons. (N.T. 2-85, 86; 3-37). On the day of the assault, plaintiff was an employee of Bamberger's Department Store located in the Mall. (N.T. 2-85). She drove to work and arrived at 1:15 p.m. She parked in the closest parking space available, which was about 500 feet from the employees' entrance to Bamberger's and approximately three quarters of the way from the employees' entrance to the outside perimeter of the parking lot. (N.T. 2-28, 2-86). Plaintiff left Bamberger's at 9:30 p.m. and as she walked to her car she was assaulted and injured by an unknown assailant. (N.T. 2-12, 14, 87, 95).

  Motions for a new trial require the exercise of discretion by the Court whose ". . . duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice P 59.08[5] at 59-160; Thomas v. E. J. Korvette, Inc., 476 F.2d 471 at 475. The jury's verdict may be vitiated only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because it may have reached a different conclusion. To grant a motion for judgment n.o.v., the Court must find as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict, Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970). Such a motion ". . . may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's Federal Practice P 50.07[2] at 2356. Even though defendant's memorandum does not address all of the contentions raised in its motion, we have, nevertheless, considered all of the grounds raised in its motions. The only assignment of error discussed in defendant's memorandum is that the evidence is insufficient to support the verdict. In summarizing the evidence and ruling on defendant's motion, we will view the evidence and the inferences therefrom in a light most favorable to the plaintiff, the verdict winner. Thomas v. E. J. Korvette, 476 F.2d 471 (3d Cir. 1970).

 From the opening of the Mall in August of 1973 to the date of the assault, July 20, 1974, there were seventy-seven car thefts and fifteen attempted car thefts from the parking lot of the shopping center. (N.T. 2-15). It was stipulated between the parties that the defendant had knowledge that there were car thefts occurring in the parking lot of the Mall. (N.T. 2-51). Plaintiff testified that during the five months she worked at the Mall she had never seen a security guard inside the Mall or on the parking lot. (N.T. 2-86). In addition, plaintiff's witnesses testified as to the security situation on the parking lot.

 Nancy Campbell, a Bamberger's employee who found the plaintiff after the assault, testified that she "maybe" had seen one security guard on the parking lot in the one and one-half month period preceding the assault. (N.T. 2-56).

 Harold Buchanan testified that between the Mall's opening in August of 1973 and the assault on July 20, 1974, he picked up his wife and daughter, who both worked at the Mall, to insure that they safely traveled between the parking lot and the stores at which they were employed (N.T. 2-59, 60); that in July of 1974 he came to the Mall to pick them up approximately four or five times a week and remained there for half an hour to an hour (N.T. 2-64, 66-67); that during that time he saw one security guard who made one trip around the buildings in a vehicle and did not "spend too much time in the parking lot." (N.T. 2-67, 68).

 Ardella Schnorr, a Bamberger's employee, testified that on the night of the assault she saw no security guards in the parking area. (N.T. 2-72). She also testified that she had seen only one security guard in the parking lot, who patrolled in a jeep, from the day the Mall opened in 1973 until the assault. (N.T. 2-71, 72).

 Susan Ferguson, another employee of Bamberger's, testified that from January 1, 1974 until July, 1974, she saw a security guard in the parking lot operating a jeep about once every three weeks. (N.T. 2-77 -- 78).

 Stephem Ambrose, a policeman with the Middletown Township Police Department, testified that during the course of his investigation on the night of the attack he did not see any security guards in the parking lot. (N.T. 2-11, 2-30).

 The defendant produced testimony in connection with the security which it provided for the parking area at the Mall. Theodore Fox, the vice-president of the Managing Agent of the Mall, testified that in April of 1974 the Mall hired its own security force, which consisted of two to five guards during peak hours who were responsible for security throughout the entire Mall. They patrolled the parking lot in a vehicle once every hour. (N.T. 3-38, 3-46). He testified that prior to the assault on plaintiff he had been aware that car thefts were occurring on the lot but did not know of any violent crimes. (N.T. 3-40).

 James Moffett, who was employed as a security guard during the week of July 20, 1974, testified that a guard was provided with a vehicle for the purpose of driving through the parking lot once each hour and that the Middletown Township police also patrolled the area. (N.T. 3-54). He testified that prior to the attack on the plaintiff he was aware of auto thefts in the parking lot but did not know of any violent crimes. (N.T. 3-55).

 Joseph Jordan, an expert in the field of security, testified that in his opinion the security at the Oxford Valley ...


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