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AMELIA MCNALLY AND DANIEL MCNALLY v. CARL LIEBOWITZ (05/25/82)

decided: May 25, 1982.

AMELIA MCNALLY AND DANIEL MCNALLY, HER HUSBAND, AND DANIEL MCNALLY, IN HIS OWN RIGHT, APPELLANT
v.
CARL LIEBOWITZ, INDIVIDUALLY AND TRADING AS SANDWICHLAND



No. 80-3-534, Appeal from an Order of the Superior Court of Pennsylvania at No. 247, affirming an Order of the Court of Common Pleas Thirty-second Judicial District, No. 77-1239.

COUNSEL

John M. Hickey, Broomal, for appellant.

Bernard P. Carey, Jr., Upper Darby, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., concurs in the result.

Author: Flaherty

[ 498 Pa. Page 164]

OPINION OF THE COURT

On November 1, 1975 Amelia McNally entered a restaurant in Springfield, Pennsylvania called Sandwichland. Her

[ 498 Pa. Page 165]

    husband ordered coffee while Mrs. McNally proceeded to the rear of the building to use the restroom. She entered a door marked by a sign indicating "Restrooms." When she found herself in a darkened area inside the door, she turned to search for a light switch and fell down a flight of stairs, sustaining various injuries.

Mr. and Mrs. McNally filed a complaint in trespass in the Court of Common Pleas of the Thirty-second Judicial District seeking damages for injuries related to Mrs. McNally's fall. Trial was begun on May 25, 1978, and at the conclusion of plaintiff's case, the trial judge entered a compulsory non-suit against plaintiffs on the grounds that Mrs. McNally was contributorily negligent as a matter of law. Motions to set aside the non-suit and for a new trial were filed and a three-judge panel denied the motions, one judge dissenting. Appeal was taken to the Superior Court, which affirmed, Judge Wieand dissenting. The question before us on this appeal is whether the lower courts were in error in finding Mrs. McNally's conduct to be contributorily negligent as a matter of law. For the reasons that follow, we hold that the lower courts were in error and reverse.

The Superior Court, 274 Pa. Superior 386, 418 A.2d 460, affirmed the trial court, relied upon a number of cases previously decided by this Court:

Although it is true that these "darkness" cases necessarily depend largely on individual facts, Dively v. Penn-Pittsburgh Corp., 332 Pa. 65, 2 A.2d 831 (1938), this area of the law has been well developed and some general rules have evolved. Thus, in the absence of compelling necessity, it is generally held "'that one who follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying upon his sense of touch instead of obtaining and using adequate lighting facilities, and sustains personal injuries, is guilty of contributory negligence as a matter of law.'" Just v. Sons of Italy Hall, 240 Pa. Superior Ct. 416, 422, 368 A.2d 308, 312 (1976) (emphasis in original), quoting Barth v. Klinck, 360 Pa. 616, 618, 62 A.2d 841, 842 (1949). "[D]arkness is, in itself, a warning to proceed either with extreme caution or not at all."

[ 498 Pa. Page 166]

[W]here there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light[,] . . . contributory negligence will not be declared as a matter of law. . . . It may be stated, therefore, that the controlling factors in determining the question of contributory negligence in accident cases of this nature are the degree of darkness and the justification for the injured person's presence in the place of danger.

332 Pa. at 69-70, 2 A.2d at 833 (Citations omitted). (Emphasis added).

One of the reasons given by the Superior Court for its decision was that Mrs. McNally "advanced as a blind person in an engulfing darkness." Although portions of the transcript can be read to support this conclusion, a reading of the whole convinces us that the Superior Court was in error. The defendant, called by the plaintiff as a witness, testified as follows:

Q. Simple question, sir. If that light behind the rest room door was not on would people be able to see the steps?

A. If the door is open, they can see the steps because that light from the other room.

Q. I see. In other words, your testimony is here today that there is enough light coming from outside the restaurant when the door is open to filter in so that they can see the steps; is that correct, sir?

A. Yes. But not enough, not enough.

Q. My question is: Could they see the steps?

A. They see the steps, but not enough to go down.

N.T. 49. Similarly, Mrs. McNally testified:

Q. You walked toward that door [marked by a "Rest-rooms" sign], is that correct?

A. Yes.

Q. Was the door opened or ...


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