spent only three or four months doing the work that Geyer and Shortledge had been doing for substantial portions of their professional lives. Therefore, it was sheer conjecture that she would have been hired by any of the airplane companies who came into the Lockhaven area in June of 1985 seeking applicants for employment. There is no foundation to support the conclusion that plaintiff's impaired earning capacity should be equated on the basis of the potential earnings of Geyer and Shortledge.
The next item of alleged error is the grant of summary judgment to the defendant on the issue of punitive damages. The basis for this alleged error is plaintiff's allegation that, in the face of a large, anxious and unruly crowd, employees of defendant pushed a cart of Koosa dolls out of the stockroom and into the midst of the crowd. This, plaintiff alleges, caused the crowd to stampede. Plaintiff further alleges the situation was then aggravated when two employees began throwing boxes of dolls in the air which added to the excitement and confusion. Janet Kinley testified that she observed one of the people who pushed the cart out of the stockroom throw some boxes in the air. The individual was described as tall, dark haired with a mustache, and a dirty white t-shirt. (NT at 146.) Betty Basinger testified that she also saw boxes flying in the air and that she imagined that it was an employee who was throwing the same because it was an individual who was pushing the cart. Mrs. Rossman testified that she saw boxes flying in the air near people standing by the cart. She also testified that when the crowd found out that they were Koosa dolls instead of Cabbage Patch dolls, the customers themselves began throwing boxes of dolls at the crowd.
Gerald Shady and Bruce Musheno, two employees responsible for wheeling the cart of Koosa dolls from the storeroom to the crowd, both testified that neither of them threw any boxes in the air, but instead, upon seeing the crowd rush toward them, immediately ran in different directions to avoid the rush. They in turn saw the crowd throwing boxes into the air. Further, Mr. Musheno testified that all employees were required to wear, and were wearing on the day in question, dress slacks, dress shirts, and ties. Thus, the inference may be drawn that the individual described by Janet Kinley was not an employee of defendant.
Under Pennsylvania law, to receive punitive damages for a tort it is required that the plaintiff establish that tortious conduct was outrageous. Pierce v. Capital Cities Communications, Inc., 576 F.2d 495 (3d Cir. 1978), cert. denied, 439 U.S. 861, 58 L. Ed. 2d 170, 99 S. Ct. 181 (1978). Outrageous conduct is defined as an act done with a bad motive or with reckless indifference to another's interest. Kann v. Keystone Resources, Inc., 575 F. Supp. 1084 (W.D.Pa. 1983). Under Pennsylvania law a punitive award may be made against a corporation for an employee's tort. The conduct of the agent who inflicts the injury complained of must be clearly outrageous to justify vicarious imposition of exemplary damages upon the principle. Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3d Cir. 1964). In making a determination on whether to submit the issue of punitive damages to the factfinder, the court must consider the nature of the act, the motive of the wrongdoer, the relationship of the parties, and the surrounding circumstances. Dean Witter Reynolds, Inc. v. Genteel, 346 Pa. Super. 336, 499 A.2d 637 (1985), appeal denied, 514 Pa. 639, 523 A.2d 346 (1987).
The evidence in the case shows that K Mart did not advertise the sale of the Cabbage Patch dolls; word of the existence of the dolls was spread by rumor throughout the store by persons unknown. Efforts made to talk to the gathering crowd were of no avail, and the decision to push a cart of Koosa dolls out from the storeroom was done with the intent to appease the crowd, rather than with an evil intent or wanton indifference or bad motive. There was no basis to permit a claim for punitive damages to be presented to a jury.
The plaintiff also requests a new trial on the basis that the damages were inadequate. In Deitrick v. Karnes, 329 Pa. Super. 372, 478 A.2d 835 (1984), the court held that verdicts, though seemingly low and unfair, are nevertheless adequate where jurors reach an impasse over conflicting testimony on liability, contributory negligence or degree of injury. In this case there was conflicting medical testimony as to whether the plaintiff's complaints were a result of the trauma which occurred to her in December of 1984, or whether her complaints were more consistent with diabetic neuropathy associated with the plaintiff's underlying diabetes. This factor may have affected the award for pain and suffering, as well as the award for impaired earning capacity. In addition, plaintiff's historical wages have been low. This, too, may have affected the weight which the jury gave to Professor Corcioni who testified in that regard. Under the circumstances the award is not inadequate.
Defendant's Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial
Defendant argues, under the evidence submitted during the trial of the case, it was entitled to a directed verdict based upon the assumption of risk defense or, in the alternative, that the court erred in refusing to charge the jury on the issue of plaintiff's assumption of risk. It is defendant's basic contention that once Rossman became part of the crowd at the K Mart store, she assumed the risk of anything that would happen with regard to the association with that crowd.
Mrs. Rossman was a business invitee to whom K Mart owed a duty to use reasonable care in the conduct of its business. K Mart had the duty to take reasonable steps to discover if third persons were likely to perform any accidental, negligent or intentionally harmful acts and to take reasonable care to provide appropriate precautions to protect its business invitees from harm. Carswell v. Southeastern Pa. Trans. Auth., 259 Pa. Super. 167, 393 A.2d 770 (1978). While Mrs. Rossman became part of a crowd that ultimately became testy and unruly, there is no evidence that she subjectively knew that K Mart Corporation would fail to take proper precautions to control the crowd, or to provide a reasonably safe method for distribution of the dolls. Nor could Mrs. Rossman have anticipated that K Mart employees would take actions that would cause the unruly crowd to stampede. In Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) the court held:
If by reason of age, or lack of information, experience, intelligence, or judgment, plaintiff did not understand the risk involved in a known situation, he will not be taken to have assumed the risk. . . . Likewise, if plaintiff's words or conduct make it clear that he did not willingly accept the risk, the absence of voluntariness will preclude a finding of assumption of risk. . . . Finally, defendant must show that plaintiff's conduct in knowingly and voluntarily confronting the risk was reasonable. . . . Although the existence of knowledge, voluntariness, and reasonableness are usually questions of fact for the jury, . . . where reasonable persons could not differ as to the conclusion, the issue may be decided by the court.
Id. at 1009 (citations omitted).
Mrs. Rossman testified on direct examination as follows:
Q What was the crowd doing while they were waiting for the dolls?