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ANTHONY ANTONACE v. FERRI CONTRACTING COMPANY (10/28/83)

filed: October 28, 1983.

ANTHONY ANTONACE, ADMINISTRATOR OF THE ESTATE OF RICHARD ALLEN ANTONACE, DECEASED
v.
FERRI CONTRACTING COMPANY, INC. AND JOSEPH A. MICALE. APPEAL OF FERRI CONTRACTING COMPANY, INC.



No. 1074 Pittsburgh, 1981, Appeal from the Judgment Entered in the Court of Common Pleas, Civil Action, Allegheny County, No. G.D. 80-01071.

COUNSEL

David B. Fawcett, Jr., Pittsburgh, for appellant.

William S. Schweers, Jr., Pittsburgh, for Antonace, appellee.

David Harry Patterson, Pittsburgh, for Micale, appellee.

Cercone, President Judge, and Beck and Montemuro, JJ. Beck, J., concurred in the result.

Author: Montemuro

[ 320 Pa. Super. Page 521]

This is an action in trespass commenced under the Wrongful Death and Survival Acts, 42 Pa.C.S.A. §§ 8301, 8302. Appellee, Antonace, is seeking damages for the death of his minor son, Richard, age 16, who died September 16, 1979 as a result of injuries he sustained the previous day.

On September 15, 1979, at approximately 5:00 P.M., the decedent was operating a dirt bike on property owned by appellee, Joseph A. Micale, but leased to appellant, Ferri Contracting, Inc. It was the decedent's intention to visit a friend, Gerry Penk, whose residence was located adjacent to the property occupied by appellant. The decedent entered the property at the south or rear end and travelled a short distance before his dirt bike collided with a one and one-half inch steel cable which had been strung across a roadway on the property by appellant. The cable flew up and struck the decedent on the neck. This injury ultimately proved fatal as the decedent died the following day.

On March 24, 1981, this case was tried by a jury before the Honorable Stephen A. Zappala of the Court of Common Pleas, Allegheny County.*fn1 After the close of appellee Antonace's case, the trial court granted a compulsory non-suit in favor of appellee, Micale. On March 26, 1981, the jury

[ 320 Pa. Super. Page 522]

    returned a verdict, on special interrogatories, in favor of appellee Antonace. Motions for judgment n.o.v. and a new trial were dismissed.

On appeal, appellant, Ferri, seeks a judgment n.o.v., or in the alternative, a new trial.

Motion for Judgment n.o.v.

Initially, appellant urges the court to hold that the trial court erred in denying its motion for judgment n.o.v.

In reviewing a trial court's denial of a motion for judgment n.o.v., we must view the evidence and all reasonable inferences from it in a light most favorable to the verdict winner. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963); Hargrove v. Frommeyer and Company, 229 Pa. Super. 298, 323 A.2d 300 (1974).

Here, the trial judge determined that appellee's decedent was a trespasser, and neither party is disputing his status under the common law. Under current law, the duty owed to a trespasser by a landowner or occupier is to refrain from willful or wanton misconduct. Engel v. Friend's Hospital, 439 Pa. 559, 266 A.2d 685 (1970); Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965).

Definitions of the terms willful and wanton were set forth at length in Evans, supra:

[ 320 Pa. Super. Page 523]

    consequences * * *." Prosser, Torts § 33 at 151 (2d ed. 1955).

Regarding "knowledge", the court continued, saying:

Other decisions of this Court have recognized that actual prior knowledge of the injured person's peril need not be affirmatively established to constitute wanton misconduct. These cases, as well as the Restatement of Torts, clearly indicate that if the actor realizes or at least has knowledge of sufficient facts to cause a reasonable man to realize the existing peril for a sufficient period of time beforehand to give him a reasonable opportunity to take means to avoid the accident, then he is guilty of wanton misconduct if he recklessly disregards the existing danger.

Evans, supra, 418 Pa. at 573-574, 212 A.2d at 443-444.

A review of the evidence reveals the following relevant facts.

Appellee, Micale, had leased the property in question to appellant, Ferri, early in 1978. The lease was an oral month to month lease which was to continue until a sewer project contracted by appellant was completed. The purpose for which appellant leased the ten acre property was the storage of material and equipment to be used on the sewer project.

Almost immediately after taking possession of the property, appellant began experiencing problems with vandalism. In an attempt to remedy this problem, appellant installed a house trailer on the property and had one of his employees live there. In addition, appellant strung the steel cable, which ultimately injured the decedent, across one of the three dirt roadways which were located on the ...


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