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RUTH A. CARRENDER AND WALTER A. CARRENDER v. PAUL FITTERER AND LINDA FITTERER (02/11/83)

filed: February 11, 1983.

RUTH A. CARRENDER AND WALTER A. CARRENDER, HER HUSBAND
v.
PAUL FITTERER AND LINDA FITTERER, HIS WIFE, APPELLANTS



No. 154 Harrisburg 1980, APPEAL FROM THE ORDER OF JULY 29, 1980 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, CIVIL ACTION, No. 1509-S-1979.

COUNSEL

James W. Evans, Harrisburg, for appellants.

Herbert A. Schaffner, Harrisburg, for appellees.

Cavanaugh, Cirillo and Hoffman, JJ.

Author: Cirillo

[ 310 Pa. Super. Page 435]

Appellee, Ruth Carrender, was injured when she slipped and fell on a patch of ice in appellants' parking lot. She and her husband, Walter, filed an action in trespass alleging that appellants' negligence in failing to clear their parking lot of ice was a substantial factor in causing her injuries. After a trial, a jury returned a verdict in appellees' favor awarding Ruth Carrender $70,000.00, and her husband $2,500.00 for loss of consortium. The jury found that Ruth Carrender was thirty-five percent contributorily negligent, however, and the verdicts were molded to $45,000.00 and $1,626.00 in accordance with the provisions of the Comparative Negligence Act.*fn1

[ 310 Pa. Super. Page 436]

Appellants contend that the lower court erred in denying their motion for a judgment n.o.v. We disagree and therefore affirm. Initially, we note that in considering a motion for a judgment n.o.v., the evidence, together with all reasonable inferences that may be drawn therefrom, must be considered in the light most favorable to the verdict winner. Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 434 A.2d 106 (1981); Fahringer v. Rinehimer, 283 Pa. Super. 93, 423 A.2d 731 (1980). Viewing the evidence in accordance with this standard, the facts are as follows:

At the time of the accident, Ruth Carrender was a patient and business invitee of appellants Paul and Linda Fitterer, who owned the Fitterer Chiropractic Clinic. She was also an amputee and wore a prosthesis consisting of an artificial lower leg. On January 16, 1979, she drove from her home to the Fitterer Clinic and parked beside another vehicle in a lot provided for clinic patients. The area between these two cars was covered with a sheet of ice, but the rest of the parking lot surface was clear.

Mrs. Carrender got out of her car and entered the clinic, some thirty-six feet away, without incident. After receiving treatment in the clinic, she retraced her steps to her car. As she walked toward the front of her vehicle, she held onto the car on her left to steady herself. When she reached the door of her car, she opened her pocketbook to get her keys. At this point, she slipped on the ice and sustained a fracture of the left hip.

The appellants' first contention is that the lower court erred in refusing to charge the jury on the defense of assumption of the risk. While the court below did charge the jury on contributory negligence, appellants aver that an additional instruction on assumption of risk was necessary because Ruth Carrender assumed the risk of injury when

[ 310 Pa. Super. Page 437]

    she stepped on the ice, knowing that it presented a danger to her. It is axiomatic that in reviewing the adequacy of a jury charge, we must examine the instructions in their entirety to determine if prejudicial error was committed. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972). The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury is able to comprehend the questions they are to decide. Crotty v. Reading Industries, Inc., 237 Pa. Super. 1, 345 A.2d 259 (1975). We ...


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