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HARRY SMITH AND NANCY SMITH v. CITY CHESTER AND DELAWARE COUNTY REGIONAL WATER QUALITY CONTROL AUTHORITY (07/30/86)

filed: July 30, 1986.

HARRY SMITH AND NANCY SMITH, APPELLANTS,
v.
CITY OF CHESTER AND DELAWARE COUNTY REGIONAL WATER QUALITY CONTROL AUTHORITY, APPELLEES



Appeal from the Judgment entered June 6, 1985 in the Court of Common Pleas of Delaware County, Civil, at No. 81-15049.

COUNSEL

Lawrence D. Finney, Philadelphia, for appellants.

Nicholas S. Lippincott, Elliotsburg, for appellees.

Montemuro, Hoffman and Cercone, JJ.

Author: Montemuro

[ 357 Pa. Super. Page 26]

The instant appeal is taken from judgment entered on June 6, 1985 by the Delaware County Court of Common Pleas pursuant to the trial court's order denying appellants' motion for a new trial.

Appellant, Harry Smith, was injured while working for Union Paving Company, which had been hired by appellee, the City of Chester, to resurface Mowry Road in Chester County. Appellant's specific job was to follow behind the asphalt rollers and pour hot tar along seams in the newly compressed blacktop. While pouring the tar, appellant stepped on a metal sewer grate which gave way causing him to fall groin high into the sewer inlet. The motion of the fall caused hot tar to fall upon appellant resulting in second and third degree burns. A jury trial was held in June of 1984, at the end of which the jury returned a verdict for appellee. Appellant filed a motion for new trial which was denied. This appeal followed.

The sole issue raised on appeal is whether the trial court erred in refusing to give a res ipsa loquitor jury instruction. In Gilbert v. Korvette Inc., 457 Pa. 602, 327 A.2d 94 (1974), our supreme court adopted the res ipsa loquitor doctrine as provided in Section 328 D of the Restatement (Second) of Torts. This section states:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.

(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or ...


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