Summary
arising under Pennsylvania law and "recogniz [ing] that a plaintiff in a fire case where careless smoking is alleged to be the cause can rarely do more than present expert testimony as to the fire's cause, and support such testimony by some evidence of smoking on the premises shortly before the fire began. This will usually make out a case of negligence sufficient to put the defendant to proof."
Summary of this case from State Auto Prop. & Cas. Ins. Co. v. WoodsOpinion
Civ. A. No. 80-3233.
April 16, 1982.
Cozen Begier O'Connor by Christopher C. Fallon, Jr., Philadelphia, Pa., for plaintiff.
Margolis, Edelstein Scherlis by Jonathan Wheeler, Philadelphia, Pa., for defendants.
McWilliams, Sweeney Powell and Kates, Livesey Mazzocone by J. Vincent Roche and Thomas Delevie, Philadelphia, Pa., for third-party defendants.
MEMORANDUM
After a jury trial in this fire property loss action, a verdict was returned in favor of the defendants Vincent and Kathleen Poretti. Before the court are plaintiff's motions for judgment n.o.v. or, in the alternative, for a new trial. In addition, third-party plaintiffs move for a new trial against third-party defendants in the event a new trial is granted to plaintiffs. After careful consideration of plaintiff's motions, I have concluded that the arguments raised therein are without merit and they are denied accordingly.
In light of my disposition of plaintiff's motions, the arguments raised in third-party plaintiffs' motion for a new trial need not be considered.
Prior to his recent death, plaintiff, Robert Lanza, was engaged in the fashion design business. Tr. 3. His business was conducted on the second floor of the premises located at 1630 Walnut Street, Philadelphia, Pennsylvania. Tr. 12. The defendants owned and operated the DuVinee Beauty Salon which occupied the first floor of such premises. Tr. 16. On January 2, 1979, a fire occurred causing extensive damage to the entire building and all of its contents. Tr. 38-79. Plaintiff thereafter instituted this action originally contending that the fire started on the first floor, and was due to the careless disposal of smoking and waste materials from the beauty shop. Tr. 4. At trial, however, plaintiff was granted leave to amend his complaint to include an intentional count. Tr. 106. Defendants denied liability and in a third-party complaint averred that the fire resulted from the negligence of the third-party defendants, Estate of Sophia and Sidney Klinghoffer, who owned the premises in question at the time of the fire. Tr. 5. In addition, the defendant also attempted to prove at trial that the fire was incendiary. At the close of the defendants' case, a directed verdict was entered in favor of the third-party defendants pursuant to Fed.R.Civ.P. 50(a). The jury subsequently, through interrogatories, returned a verdict in favor of the defendants.
At the time of the fire, the property was in the process of being sold by the Klinghoffer estate to For Eyes Optical Co., additional third-party defendants. Defendants claimed that the fire was set by For Eyes in an attempt to destroy their business, thereby giving their landlord (Klinghoffer estate) and the purchaser of the property (For Eyes) the opportunity to terminate their lease. Tr. 105.
The following interrogatories were submitted to the jury.
1. Do you find that the fire that occurred on January 2, 1979 at 1630 Walnut Street, occurred as a result of the carelessness or negligence of defendants, their agents, servants or employees and that such was a proximate cause of the property damage sustained by the plaintiff?
----- ---- Yes No
2. Do you find that the fire that occurred on January 2, 1979 at 1630 Walnut Street, occurred as a result of the intentional conduct or gross negligence of the defendants, their
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