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CHRISTINA LEONARD v. NICHOLS HOMESHIELD (04/13/89)

filed: April 13, 1989.

CHRISTINA LEONARD, A MINOR, BY HER MOTHER, AND NATURAL GUARDIAN, SONJA LEONARD MEYERS, AND SONJA LEONARD MEYERS, IN HER OWN RIGHT, APPELLANTS,
v.
NICHOLS HOMESHIELD, INC. AND PAUL NEWCOMER AND SUZANNE NEWCOMER AND LEWIS BROTHERS CONSTRUCTION CO., INC., APPELLEES



Appeal from the Judgment of Sentence entered March 29, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 2523 December 1981.

COUNSEL

Marshall A. Bernstein, Philadelphia, for appellants.

Michael E. McGilvery, Philadelphia, for Nichols, appellee.

Richard A. Kraemer, Philadelphia, for Newcomer, appellees.

Albert L. Bricklin, Philadelphia, for Lewis Brothers, appellee.

McEwen, Montemuro and Kelly, JJ.

Author: Kelly

[ 384 Pa. Super. Page 3]

Appellants, Christina Leonard, a minor by her mother and natural guardian, Sonja Leonard Meyers, and Sonja Leonard Meyers, in her own right, appeal the judgment entered in favor of Nichols Homeshield, Inc.*fn1 For the reasons which follow we reverse and remand for a new trial.

On May 19, 1980, Mrs. Meyers and her two year old daughter Christina arrived home at approximately 5:00 p.m. Shortly thereafter, Mrs. Alice Lindsey, Mrs. Meyers' sister, and her five year old daughter Erica entered the apartment. Soon after their arrival, Erica and Christina began playing together by a window in the living room. Mrs. Meyers and Mrs. Lindsey were engaged in conversation when Mrs. Meyers glanced over at the children and noticed Christina sitting on the window sill. Mrs. Meyers instructed Christina to move away from the window and then turned her head towards Mrs. Lindsey to respond to a question. Within seconds, Mrs. Meyers returned her attention to the children and discovered that Christina was no longer seated on the windowsill and the screen was missing. Christina was found lying unconscious on the pavement outside the apartment building.

On December 22, 1981, Mrs. Meyers instituted this product liability action against appellee, the manufacturer and seller of an alleged defective window screen. Appellants' claims were based upon strict liability under Section 402A of the Restatement Second of Torts and upon appellee's negligence. Appellee joined as additional defendants Paul

[ 384 Pa. Super. Page 4]

    and Suzanne Newcomer, appellants' landlord, and Lewis Brothers Construction Company, the installer of the window screen assembly involved in the accident. Appellee alleged that the additional defendants were negligent in designing, installing, and constructing the window and creating and maintaining a hazardous condition.*fn2

The matter was tried from January 6, 1986 through January 17, 1986. The case was submitted to the jury by means of a series of interrogatories, whereby the jury found the screen was not defective and appellee was not negligent. Post-trial ...


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