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CHARLES W. HAGER v. EMLEN ETTING AND GLORIA ETTING (08/10/79)

August 10, 1979

CHARLES W. HAGER, IV
v.
EMLEN ETTING AND GLORIA ETTING, HIS WIFE, AND CHEZ ODETTE, INC. AND BUCKS COUNTY BANK AND TRUST COMPANY, GUARDIAN FOR ODETTE MYRTIL, AN INCOMPETENT. APPEAL OF CHEZ ODETTE, INC. AND BUCKS COUNTY BANK AND TRUST COMPANY, GUARDIAN FOR ODETTE MYRTIL, AN INCOMPETENT



No. 807 October Term, 1978, Appeal from Judgment of the Court of Common Pleas, Philadelphia County, Trial Division, Civil Action, Law, entered at No. 3302, August Term, 1971.

COUNSEL

Daniel T. McWilliams, Philadelphia, for appellants.

Herbert F. Kolsby, Philadelphia, for appellee Charles W. Hager, IV.

John J. Tinaglia, Philadelphia, did not file a brief on behalf of appellees Etting.

Van der Voort, Hester and Montgomery, JJ. Montgomery, J., concurs in the result.

Author: Hester

[ 268 Pa. Super. Page 417]

On August 24, 1969, appellee, his wife and mother-in-law attended a party given by Odette Myrtil. Ms. Myrtil owned and operated a restaurant in Pennsylvania called "Chez

[ 268 Pa. Super. Page 418]

Odette, Inc." Ms. Myrtil was the President of the corporate defendant, Chez Odette, Inc. The party was an annual affair given by Ms. Myrtil for the employees and patrons of her restaurant. Appellee's wife and mother-in-law were employees at that time.*fn1 The party was held at a residence in Loveladies Harbor, New Jersey, which was owned by Emlen and Gloria Etting and leased to Ms. Myrtil.*fn2 The house was situate upon land which abutted a man-made canal. Around the bank of the canal a bulkhead and dock had been built, presumably to facilitate boating, fishing and swimming.

The party was an all day affair. Appellee, who had been swimming in a pool on the property, commenced to dive into the canal from the dock for the purpose of removing seaweed. Testimony adduced at trial was conflicting as to whether appellee had permission to swim in the canal and under what circumstances. In any event, on appellee's third dive he apparently struck the bottom of the canal and was seriously injured. He had to be removed from the water; and thereafter was taken to a nearby hospital where it was discovered that he was suffering from a traumatic transection of the spinal cord with a fracture at C-5 and C-6. This injury has reduced appellee to permanent quadraplegia.

Appellee, via complaint in trespass, sued for the injuries he sustained, naming as defendants, Emlen and Gloria Etting, owners of the land and Odette Myrtil and "Chez Odette, Inc.", as lessees in possession of the land. The complaint alleged that appellants were negligent in failing to warn appellee of the shallowness of the water, either by signs or orally, and in maintaining the dock as a swimming area without adequate supervision, in view of the dangers inherent in diving from such a platform.

Following trial by jury, a verdict in favor of the appellees was returned in the amount of 1.8 million dollars. Emlen and Gloria Etting had, prior to the verdict, obtained a

[ 268 Pa. Super. Page 419]

    joint-tortfeasors release for $300,000.00 (three hundred thousand dollars). Judgment was entered on the verdict in the amount of 1.2 million dollars.

Motion for judgment n. o. v. and a new trial were denied and this appeal followed.

Our review leads us to conclude that the trial court erred in its instruction to the jury on the issue of the legal status of appellee at the time of this occurrence.

The court's instruction on this point was as follows:

"Members of the jury, where a possessor of land invites persons to come on the land and offers the use of facilities, the duty is upon that possessor to exercise reasonable care to make sure the land is safe or at least to warn the invitee, which Mr. Hager was, of any dangers that he might not be able to recognize himself." (R. 817(a).)

The duty a possessor of land owes a person who comes upon his land (or land which he legally occupies) is determined by the status said person enjoys.

The injuries sustained herein occurred in the State of New Jersey. Since Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964), Pennsylvania has adopted the principle that torts should be governed by the law of the state which has the greater interest in the application of its law, bearing in mind the policies and interests underlying the particular issue before the Court.

Here we see no conflict. The law of New Jersey should govern in determining the duty the possessor of the land in this case owed to appellee. We see no significant interest that the Commonwealth of Pennsylvania would further by having its law applied as to duties ...


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