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MOLLY BROWN v. JOHN F. TINNENY AND TIMOTHY A. LABOS V. MOUNT LEBANON SCHOOL DISTRICT (09/19/80)

filed: September 19, 1980.

MOLLY BROWN, A MINOR, BY HARRY M. BROWN, HER GUARDIAN, AND HARRY M. BROWN AND PATRICIA BROWN, PARENTS IN THEIR OWN RIGHT, APPELLANTS,
v.
JOHN F. TINNENY AND TIMOTHY A. LABOS V. MOUNT LEBANON SCHOOL DISTRICT, ADDITIONAL DEFENDANT



No. 440 April Term 1979, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil Division at No. GD 76-03401.

COUNSEL

John C. Carlin, Jr., Pittsburgh, for appellants.

John A. Robb, Jr., Pittsburgh, for Tinneny, appellee.

J. W. Carroll, Jr., Pittsburgh, for Labos, appellee.

Edmund L. Olszewski, Pittsburgh, for Mt. Lebanon, appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 280 Pa. Super. Page 513]

This appeal arises from an order dismissing appellants' motion for a new trial in a negligence case.

On October 14, 1976, Molly Brown, age 13, was walking home from school. Behind her were several boys, including John Tinneny and Timothy Labos, who were also walking home from school. (Tinneny and Labos were both 16 years old.) The boys were horseplaying and tossing stones at each other. When one of the stones struck Molly, she increased her pace and crossed the street. The boys, however, also crossed the street. About this time Tinneny saw near the curb a small glass vial, approximately two inches high and one half inch wide, with a hard, black cap. The vial contained a colorless liquid. Tinneny picked up the vial and tossed it at Labos. The vial missed Labos and landed in the grass. As Labos began to pick up the vial Tinneny came forward and grabbed him. The impact of Tinneny's grip

[ 280 Pa. Super. Page 514]

    dislodged the cap on the vial and caused the liquid inside to splash on Molly's back. At the time Molly was on the sidewalk approximately 10 to 15 feet from Tinneny and Labos. It so happened that the liquid in the vial was nitric acid, and Molly sustained burns where the acid splashed on her body.

Molly's parents, as guardians of Molly and in their own right, sued Tinneny and Labos for Molly's injuries. Tinneny and Labos joined the Mount Lebanon School District as an additional defendant on the theory that the nitric acid came from a school laboratory, and the district had failed to exercise proper control over the acid. The parties stipulated to the amount of Molly's damages, and the case was tried to a jury on the issue of appellees' liability only. At trial, there was no dispute between the parties as to the essential facts of the case. The jury returned verdicts against Molly's parents, as Molly's guardians and in their own right, and in favor of Tinneny, Labos, and the school district.

As appellants, Molly's parents contend that the trial court committed reversible error when it instructed the jury on the Restatement (Second) of Torts ยง ...


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