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JAMES J. MCCANN AND PATRICIA MCCANN v. AMY JOY DONUT SHOPS (03/09/84)

filed: March 9, 1984.

JAMES J. MCCANN AND PATRICIA MCCANN, H/W, APPELLANTS,
v.
AMY JOY DONUT SHOPS, A DIVISION OF AMERICAN SNACKS, INC.



No. 748 Philadelphia 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Action, Montgomery County, No. 77-4444.

COUNSEL

William D. Marvin, Philadelphia, for appellants.

B.E. Zuckerman, Norristown, for appellee.

Spaeth, President Judge, and Cavanaugh, McEwen, Beck, Montemuro, Montgomery and Cercone, JJ. Cavanaugh, J., files dissenting opinion.

Author: Montemuro

[ 325 Pa. Super. Page 341]

This is an appeal from an order denying appellants' motion for a new trial, entered in the Court of Common Pleas, Montgomery County.

On March 20, 1975, appellant, James McCann, suffered severe gastritis, leading over the next five days to a flare-up of an existing ulcer. As a result of his condition, he underwent surgery which involved the removal of a portion of his stomach. Appellants brought this action against appellee because Mr. McCann had consumed one, and a portion of a second, cruller and a soft drink, which had been supplied by appellee on the evening prior to the onset of his illness. In this action, based on negligence and strict liability, appellants claim that the crullers supplied by appellee were excessively greasy and that consumption of them

[ 325 Pa. Super. Page 342]

    caused Mr. McCann's ulcer to flare up. Mr. McCann's wife, Patricia, claims damages for loss of consortium.

The case was tried before a jury, which returned a verdict in favor of appellee. A motion for a new trial was timely filed, and denied.

Arguments on appeal relate solely to strict liability. Specifically, appellants argue that in its charge to the jury, the trial court erred in 1) including "unreasonably dangerous" as an element of strict liability; 2) charging that contributory negligence was a complete defense to strict liability; and 3) giving an instruction on the uncalled witness rule.

In order for appellant to be entitled to a new trial, the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965); Riesberg v. Pittsburgh and Lake Erie R.R., 407 Pa. 434, 180 A.2d 575 (1962).

We have carefully examined the record before us and have concluded, for the reasons described below, that no reasonable jury could have found that appellants were entitled to recover because causation, an essential element of a strict liability claim, was not in evidence. Consequently, we find it unnecessary to pass on the question of whether the challenged instructions were fundamentally erroneous; however, assuming arguendo that each was, we fail to see how such instructions might have been responsible for the verdict. Jones v. Montefiore Hospital, supra; Riesberg v. Pittsburgh and Lake Erie R.R., supra.

Appellants assert that causation was established by the testimony of their expert medical witness, Dr. Crone. They offer the following testimony as presenting sufficient evidence of causation. There is no dispute that their portion of the testimony ...


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