Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 82-12724.
Richard L. McMillan, Pittsburgh, for appellant.
Michael Louik, Pittsburgh, for Authur H. Henze, executor and in his own right, appellee.
David L. Beck, Pittsburgh, for Rice, appellee.
Scott Millhouse, Pittsburgh, for Pancari, appellee.
Wieand, Del Sole and Hester, JJ.
[ 352 Pa. Super. Page 539]
Virgina Henze fell when she tripped over a threshold which had become loose in the doorway to the office of a Texaco service station operated by David Rice. The service station was owned by Leo and Rose Pancari, but the same had been leased to Texaco, Inc. and sublet to David Rice, t/a Rice's Texaco. In an action to recover damages for personal injuries, Henze alleged that the threshold had been negligently maintained. A jury apportioned negligence as follows: Mrs. Henze -- 35%; Texaco, Inc. -- 52%; David Rice -- 13%.*fn1 Texaco's motions for judgment n.o.v. and for a new trial were overruled, and judgment was entered on the verdict.*fn2 Texaco appealed.
On appeal, Texaco contends (1) that it is entitled to a judgment n.o.v.; (2) that the trial court erroneously instructed the jury regarding the liability of a "landlord out of possession"; and (3) that the trial court erred in dismissing Texaco's claim for indemnity against Rice. We conclude
[ 352 Pa. Super. Page 540]
that the evidence was insufficient to support a finding that Texaco was negligent.*fn3
On July 2, 1980, Mrs. Henze entered the office at Rice's Texaco Station for the purpose of making an appointment to have her car inspected. As she was leaving the office, she stepped on a loose threshold in the doorway, which caused her to lose her balance and fall. The service station had been leased to and was operated by Rice continuously after 1970. The lease in existence at the time of the accident contained a clause which required Rice to maintain the service station "in good repair and in good, clean, safe and healthful condition." The lease provided further that if Rice failed to make the necessary repairs, Texaco could make the repairs and charge them to Rice's account. Throughout the course of Rice's tenancy, both parties made repairs in and around the station. Although Rice generally notified Texaco whenever major repairs became necessary, Texaco also sent a representative twice a month to inspect the station. On one occasion, Texaco had installed a kickplate on the door to the office. Other minor repairs, however, had been made by Rice. Significantly for our purposes, on two or three occasions prior to Mrs. Henze's fall, Rice had discovered the looseness of the threshold and had repaired it by tightening the screws that held it in place. At no time did Rice request that Texaco make repairs to the threshold or notify Texaco that the threshold had a propensity for becoming loose. The propensity of the threshold to become loose, moreover, could not be detected by a visual inspection. The evidence did not disclose that Texaco had any knowledge or reason to know that on occasion the threshold had become loose.
On a motion for judgment n.o.v., the facts must be considered in the light most favorable to the party against whom the motion is made. Maravich v. Aetna Life and Casualty ...