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filed: February 20, 1981.


No. 200 April Term, 1979, Appeal from the judgment of the Court of Common Pleas, Civil Division, of Westmoreland County, at No. 3394 of 1975.


Warren D. Ferry, Pittsburgh, for appellant.

Louis H. Ceraso, New Kensington, for Kardibin, appellees.

Robert A. Nedwick, Pittsburgh, for Associated Hardware, appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Cercone

[ 284 Pa. Super. Page 589]

This is an appeal from the denial of the additional defendant's motions for a new trial and for judgment n. o. v.*fn1

On January 13, 1975 Betti Lou Kardibin and her daughter Lisa were shopping at the Hillcrest Shopping Center in Westmoreland County. It was early evening and they were shipping hurriedly. Russel Kardibin, Betti Lou's husband, was waiting in the car in the shopping center parking lot. As the two shoppers approached the Associated Hardware Store, some clocks in the window caught Mrs. Kardibin's eye. Several feet from the door to the hardware store Mrs. Kardibin caught her foot and fell to the sidewalk. She was helped to her feet by her daughter Lisa and a passerby, Mrs. Brown. Lisa and Mrs. Kardibin entered the hardware store and informed Louis Deda, the manager, about the accident. They did not go outside to show him where the accident occurred, but pointed through the window, to one side of the door, indicating the general locality of the mishap. Deda told them Mrs. Kardibin was not the first to trip there, and he told them that he had reported a defect in the concrete to the Shopping Center's maintenance man approximately a month before. Mr. Kardibin subsequently took his wife for emergency treatment at a nearby hospital.

When the case came to trial a jury was impanelled but, before the plaintiffs could present their case, one of the twelve requested to be excused because of a personal emergency. Upon agreement of counsel to try the case with eleven jurors, of which nine were to constitute a sufficient

[ 284 Pa. Super. Page 590]

    number to render a verdict,*fn2 the trial judge released the twelfth juror as requested. The case proceeded to trial, but when it came time to charge the jury, counsel for the shopping center requested that the court instruct the jury that a verdict could only be rendered by ten of the eleven jurors instead of the nine earlier agreed upon. Appellant contended below, as it does here, that the law of the Commonwealth requires a verdict of at least 5/6 of the jury in civil cases, and that its earlier agreement to accept a verdict by nine of the eleven jurors (slightly less than 5/6) was based on a mathematical miscalculation which, in effect, made any vote by less than ten jurors contrary to law. The court refused the instruction and the jury retired to deliberate. In his instructions to the jury, the trial judge required them to answer special interrogatories, which he drafted, in the event that they were to find in the plaintiffs' favor. The juror then returned a vote in the sum of $15,000 in favor of the Kardibins by a nine-two vote, and answered the special interrogatories.*fn3 On the basis of the special interrogatories

[ 284 Pa. Super. Page 591]

    the original defendant, Associated Hardware, moved that the verdict be molded to hold Hillcrest Shopping Center solely liable. The trial judge accepted the motion and molded the verdict accordingly. Hillcrest Shopping Center filed motions for judgment n. o. v. and for a new trial. The en banc court denied both motions and this appeal followed.

On appeal the Shopping Center raises three issues: whether the denial of its motion for compulsory non-suit was proper; whether the molded verdict was proper; and whether a verdict rendered by nine of eleven jurors violates the Act of October 7, 1975, P.L. 374, No. 107, § 1, 17 P.S. § 925 (now substantially re-enacted, Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978, amended April 28, 1978, P.L. 202, No. 53, §§ 10(57), 21, eff. June 27, 1978, 42 Pa.C.S. § 5104),*fn4 and Article I, § 6 of the Constitution of 1873 as amended in 1971. We address the issues seriatim.

We consider initially the propriety of the court's refusal to grant the Shopping Center's motion for compulsory non-suit. In reviewing a denial of such a motion we must consider the plaintiffs' evidence in a light most favorable to them and giving them the benefit of every reasonable inference

[ 284 Pa. Super. Page 592]

    which can be drawn therefrom. In re Green, 486 Pa. 613, 406 A.2d 1370 (1979); Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963); Fox v. Lyon, 27 Pa. 9 (1856). Furthermore, it has long been the law in Pennsylvania in "falldown" cases that the pedestrian has the burden of proving the existence of a defective condition and the knowledge, actual or constructive, of the real estate possessor of the condition prior to the accident. Bromberg, supra; Freund v. Hyman, 377 Pa. 35, 103 A.2d 658 (1954).

The Shopping Center contends that the Kardibins failed to present sufficient evidence to make out a prima facie case, and that it was error not to have granted its motion for compulsory non-suit. Appellant argues primarily that the Kardibins failed to establish the actual cause of Mrs. Kardibin's fall. In support of its argument the Shopping Center cites three cases, of which we find none persuasive: Cuthbert v. Philadelphia, 417 Pa. 610, 209 A.2d 261 (1965); DuBois v. Wilkes-Barre, 410 Pa. 155, 189 A.2d 167 (1963); Freund, supra. In all three of these cases the plaintiff was injured as the result of a fall, but in none of them was the plaintiff able to establish the cause of the fall by other than conjecture. There the plaintiffs searched the accident site for an agency which could have occasioned the mishap and, finding a defective condition in the pathway, concluded that it could only have been the defect that caused the accident. In none of these cases was there eyewitness testimony directly linking the fall to the defective condition. See also Houston v. Republican Athletic Ass'n, 343 Pa. 218, 22 A.2d 715 (1941); Hillelson v. Renner, 183 Pa. Super. 148, 130 A.2d 212 (1957); Rogers v. South Philadelphia Nat'l Bank, 160 Pa. Super. 154, 50 A.2d 697 (1947). The instant case presents a considerably different situation. Here, Mrs. Kardibin testified in her case-in-chief that the sidewalk caused her fall, and that she found her foot still in the offending defect after she arose:

A. All of a sudden just felt like I just short of sunk, like. I can't even hardly explain it. My foot, like, went in, and I just ...

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