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JOSEPH M. KLINE AND JEANNETTE KLINE v. JAMES F. BALL AND NORMA H. BALL (10/01/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 1, 1982.

JOSEPH M. KLINE AND JEANNETTE KLINE, HIS WIFE, APPELLANTS
v.
JAMES F. BALL AND NORMA H. BALL, HIS WIFE, AS PARENTS AND NATURAL GUARDIANS OF MARK BALL, AND JAMES F. BALL AND NORMA H. BALL, HIS WIFE; ROBERT A. KEISLING AND SANDRA S. KEISLING, HIS WIFE, AS PARENTS AND NATURAL GUARDIANS OF ROBERT E. KEISLING, AND ROBERT A. KEISLING AND SANDRA S. KEISLING, HIS WIFE; ROBERT J. BAKER AND JEAN P. BAKER, HIS WIFE, AS PARENTS AND NATURAL GUARDIANS OF THOMAS A. BAKER, AND ROBERT J. BAKER AND JEAN P. BAKER, HIS WIFE; JOHN W. SOMERVILLE AND AGNES U. SOMERVILLE, HIS WIFE, AS PARENTS AND NATURAL GUARDIANS OF GREGORY T. SOMERVILLE AND JOHN W. SOMERVILLE AND AGNES U. SOMERVILLE, HIS WIFE

No. 564 Pittsburgh, 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Division, Allegheny County, G.D. 76-05804.

COUNSEL

Phillip B. Hart, Jr., Pittsburgh, for appellants.

Joseph B. Bagley, Pittsburgh, for Baker, appellees.

Thomas F. Weis, Pittsburgh, for Somerville, appellees.

Rowley, Beck and Montemuro, JJ.

Author: Montemuro

[ 306 Pa. Super. Page 285]

The instant matter concerns a prank played by a group of highschool boys that resulted in injury to a staff member of the school. The two boys most obviously involved in the matter settled out of court with the injured woman, herein the appellant. The case was tried against the other two young men who were present at the time and allegedly participated by daring and encouraging the actors. The court below declared a non-suit, and the case did not go to the jury. Upon review of the record, we affirm the result of the lower court, but not all of its reasoning.

Where a compulsory non-suit is entered at the close of plaintiff's evidence, the appellate court, upon appeal from a refusal of the trial court to remove the non-suit, will determine whether plaintiff's evidence was sufficient to present a question for the trier of fact upon which a verdict or finding for the plaintiff could have been based. 9 Standard Pa. Practice Ch. 40, § 72, p. 389 and cases cited therein. The plaintiff must be given the benefit of all favorable evidence; every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of the plaintiff. Allen v. Leshner, 224 Pa. Super.Ct. 327, 306 A.2d 916 (1973). A compulsory non-suit may be entered only where the lack of evidence to sustain an action is so clear that there is no room for reasonable disagreement. Piccolo v. Weisenberger, 237 Pa. Super. 218, 352 A.2d 116 (1975).

[ 306 Pa. Super. Page 286]

The facts, in the light most favorable to plaintiff, are as follows:

The four appellees, all high school students, had entered a part of the school that was off-bounds for students at that hour. They were on a second floor balcony area, chatting and engaging in horseplay while waiting for the bell for the next period. They knew, or should have known that other students, faculty and staff were as likely to be in the area as they were themselves.

Appellee Keisling balanced the plastic trash can on the railing. As appellee Ball ascended the staircase, several people on the platform above threatened to throw the trash can on him, but did not. He joined the group, still holding an orange left from his lunch. The group was jostling around:

As soon as the deed was done, the group beat a hasty retreat to the men's room. A fair inference would be that they all felt implicated in the act, though they never intended injury to the appellant.

Appellant had entered the hall below during the horseplay. One of the appellees admitted to having heard the door below open and shut. Two other students also in the hallway (the people who discovered and rescued the injured appellant) testified to hearing appellant open the door and the click of her heels on the floor. Such testimony might reasonably give rise to an inference that appellees should also have noticed those sounds and anticipated the presence of the appellant on the stair. However, even the most liberal reading of the testimony does not reveal which of the group on the balcony in fact uttered the dare that instigated the act of pushing over the trash can. The witnesses do not remember and cannot say.

[ 306 Pa. Super. Page 287]

Unlike the court below, we are inclined to feel that appellants' argument from the Restatement of Torts 2d has merit, and that on facts similar to those of the instant matter, § 876 might well prove applicable.*fn1

We need not, however, discuss the matter further under the Restatement or relate that Section to the law of this Commonwealth, because we must agree with the trial judge that the witness's testimony is not specific enough to show that any one named party, nor all bystander parties, in fact did dare the actor and precipitate the behavior which led to injury. Testimony established that a dare was made; however, it was never established who made the dare:

Tort liability must be founded upon some blameworthy conduct, or lack of due care resulting in the violation of a duty owing to others.

In Pennsylvania, the principle of liability without fault for injuries to the person has received scant consideration.

[ 306 Pa. Super. Page 288]

The great body of our law of liability for personal injuries is that of liability through fault; liability based almost exclusively on wrongful conduct. Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 187, 8 A.2d 302, 305 (1939).

On the facts, after appellants had presented their case, fault could not be assigned to any one person or the whole group. In the absence of testimony tending to establish specific wrongdoing, the decision of the lower court to find for the appellees by granting a compulsory non-suit was correct, and we affirm the order of the trial judge.

Judgment affirmed.


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