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Kline v. S. M. Flickinger Co.

March 7, 1963

OLIVE GERTRUDE KLINE AND ELMER P. KLINE, HER HUSBAND, APPELLANTS,
v.
S. M. FLICKINGER CO., INC., A NEW YORK CORPORATION, AND SUPER-DUPER, INC., A NEW YORK CORPORATION, A SUBSIDIARY OF S. M. FLICKINGER CO., INC. AND LOUIS GRECO, DEFENDANTS-APPELLEES, AND LOUIS GRECO, INDIVIDUALLY AND DOING BUSINESS AS "RED AND WHITE" GROCERY, THIRD-PARTY DEFENDANT-APPELLEE.



Author: Ganey

Before BIGGS, Chief Judge, GANEY, Circuit Judge, and SHERIDAN, District Judge.

GANEY, Circuit Judge.

The question raised on this appeal is whether the trial court committed reversible error in restricting the issue of negligence at the trial to the condition of the threshold strip of the entrance to a grocery store.

On August 31, 1958, at 5:15 p.m., the wife-plaintiff entered the Red and White retail grocery supermarket in Galeton, Pennsylvania. After she had made a purchase and was in the process of leaving the store through the same entrance that she had come in, she fell forward out the doorway on to the concrete landing which was 3 1/2 inches below the floor level of the store.*fn1 Her grandson had preceded her in leaving the store and was holding one of the doors, which swung outward open for her.

The entrance was a single opening with two 3 by 7 feet glass panel doors, which swung in opposite directions. The floor had a checkered design and its coloring was different from the outside concrete. The threshold strip was made of metal and extended the length of the doorway opening and covered the entire concrete doorsill, being even with the outside edge thereof, and was fastened to the concrete doorsill by means of screws being inserted into the concrete. Inside the store the strip was beveled to meet the floor and fastened with countersunk screws.

The plaintiffs, husband and wife, brought their action on October 16, 1959, against S. M. Flickinger Co., Inc., and Super-Duper, Inc. Paragraph 6 of the complaint avers: "On August 31, 1958, at 5 P.M. * * * by reason of defendants' defective installation or defective maintenance of the sill of the threshold the wife-plaintiff's heel caught upon a defective protuberance at the sill portion of the threshold causing the wife-plaintiff to fall violently forward to the outside concrete landing of the store premises * * *."

On August 2, 1960, plaintiffs amended their complaint to include as an additional defendant, Louis Greco, who had been brought on the record as a thirdparty defendant. Paragraph 21 of the amended complaint states: "Louis Greco's negligence in failing to properly install the aforementioned sill and the negligent failure to inspect and maintain the said sill and to give notice of the defective condition to all business invitees was the proximate cause of wife plaintiff's injuries * * *."

On December 13, 1960, Chief Judge Wallace S. Gourley denied a motion for summary judgment filed by S. M. Flickinger Co., Inc., and Super-Duper, Inc. In his opinion, the Chief Judge stated that it appears that a substantial dispute of fact exists, inter alia, as to the following:

"3. Whether defendants were guilty of negligence which was the proximate cause of the accident in the preparation of the design, plans and specifications of the business establishment, which * * * would fasten liability upon said defendants."

The pre-trial stipulation of the parties filed on June 28, 1961, set forth the issues for trial. In addition to stating that one of the questions was whether "all the defendants are jointly liable for the alleged acts of negligence", the stipulation echoes the words of Chief Judge Gourley quoted above.

A pre-trial conference was held before Judge John L. Miller on July 6, 1961. No pre-trial order was entered as a result of the meeting, but the stipulation was amended on July 15, 1961, to include the names of additional witnesses to be called at the trial and to set forth the list of exhibits some of which were admitted or the formal proof of which was waived.

At the trial, which began on December 6, 1961, before Chief Judge Gourley and a jury, the wife-plaintiff testified that as she was going out of the store her shoe caught on something and she fell out the door onto the concrete landing, and that at the time she was wearing wedgies, a type of shoe in which the sole and heel are of one piece and of the same elevation. Plaintiffs called one John Douglas, a general contractor active in the building construction business for some fifty years, as an expert witness and also as a fact witness to explain what caused the wife-plaintiff to fall. He testified that six weeks after the accident he inspected the entrance to the store and noticed that the floor of the store was sunken slightly about three-sixteenths of an inch beneath the level metal threshold strip, and that the strip could be depressed at the place where the floor was uneven by the weight of a person's footstep, and when the strip was depressed, the top portion of a fixed screw would extend above the strip. He stated that the threshold strip was not properly installed because it was placed on an uneven floor base and that this defect had nothing to do with the design of the entrance to the store. However, on cross-examination, he gave his expert opinion that the entrance way was designed improperly because the threshold strip came to the very edge of the doorsill and that the fault here lay in the design of the entrance way in that it should have been made level with the inside floor of the store by eliminating the doorstep. Near the close of the defendants' case, counsel moved to strike that portion of Douglas' testimony concerning his expert opinion that the entrance was improperly designed because of the drop of some 3 1/2 inches to the concrete ramp outside of the store which was 6 feet wide by 40 feet in length. At this juncture plaintiffs did not, as permitted by Federal Civil Rule 15(b), request the court to allow the complaint to be amended so as to include the claim of proper design of the entrance as being a proximate cause of the wifeplaintiff's injuries, for they were of the belief that it was already covered by the Pre-trial Stipulation. In response to the oral motion, the trial judge, in the interest of justice, gave plaintiffs an alternative: Either go on with the trial and have the case go to the jury solely on the question of whether there was a faulty base for the threshold strip which, when depressed, caused a screw to rise above the strip, or have the court declare a mistrial at the plaintiffs' expense and retry the case in January of 1962. This, the court explained, was to give the defendants an opportunity to contest any claim of faulty design of the entrance by showing, if such were the case, that it was not an uncommon practice for a business establishment to have a step at its very entrance. To this suggestion, the plaintiffs' counsel remarked: "Naturally we want to go ahead. We cannot afford the expense." However, in view of the fact that the trial judge indicated that the motion was proper, he did not, at that time, caution the jury to disregard Douglas' testimony concerning faulty design of the front entrance, or direct that the testimony be stricken from the record, but stated he would take care of the ruling on the motion in his charge to the jury. Accordingly, in his charge he did include the following admonition: "You shall not consider or discuss in your deliberations any question as to the area beyond the threshold, as to whether or not it was or was not proper under the circumstances, because that is not involved in the proceeding."

The jury found for the defendants and judgment on the verdict was entered on December 13, 1961. Plaintiffs' timely motion for a new trial was denied on February 5, 1962.*fn2

The court committed no error in restricting the issue of negligence at the trial. The defendants, by delaying in requesting the court to strike Douglas' testimony concerning faulty design, did not waive their right to make such a motion. When a pre-trial order or stipulation is involved, Rule 15(b), concerning amendments to conform to the evidence, must be read in connection with Rule 16.*fn3 While the failure of formal amendment of a pre-trial order or stipulation, absent prejudice, will not affect the trial of an issue, Franklin Life Insurance Company v. Bieniek, 312 F.2d 365 (C.A.3, December 27, 1962); 3 Moore's Fed.Pract. (2nd Ed.) ...


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