Crotty v. Eeading Industries, Inc.

Dissenting Opinion by

Price, J.:

I dissent. Though I agree, generally, with the majority’s delineation of the facts, there are certain areas upon which I feel compelled to elaborate. Appellant’s employer, Aetna Standard Engineering Company (Aetna) was a manufacturer of various types of machinery for use in mills. Appellant began working for Aetna in 1948 as a wire-drawing expert, but subsequent to 1956, he worked as a field engineer. As such, his duties consisted of troubleshooting 1 and starting up and installing new equipment for customers of Aetna.

Appellee was one of Aetna’s customers, having purchased four machines. Two were known as IV machines and two were IVC machines. Because the machines were not performing as promised, the appellant was sent to *13 appellee’s premises, in his capacity as a troubleshooter. On four separate occasions, between July 19, 1970, and the date of the accident, September 28, 1970, appellant was on the appellee’s premises working on his employer’s machines. Each occasion was of at least one week’s duration, and on each visit he spent some time working on the IVC machines by which he was eventually injured.

On September 28,1970, appellant worked on both IVC machines, beginning with the machine designated in the record as IVC-2. On his way to IVC-2, he passed by the other IVC, the one by which he was injured, and designated in the record as IVC-1. At that time, he observed appellee’s project engineer, James G. Ertz, working on the indexing mechanism of IVC-1, which he knew controlled the circular motion of the carousel.

After completing his work on IVC-2, appellant turned to IVC-1. Appellant knew that he might have to step onto the carousel portion of the IVC and therefore he pushed the “stop” button on the control panel, shutting off the power to the carousel system. Appellant was aware that the system could be started after the “stop” button had been pressed, by pressing the “on” and “index” buttons located on the control panel. Appellant was also aware that there were two other switches which could deprive the carousel system of electrical power, but he failed to utilize either of them. One switch, located on the back of the control panel, controlled the power flowing to the carousel system. The other, located 160-170 feet from the control panel, was the main power switch. The latter switch was not employed because appellant felt that it was too far away.

Although he had seen Ertz working on the machine earlier in the morning, appellant failed to determine whether Ertz was still working on it. The work performed by Ertz required rotation of the carousel, and on this particular occasion, it was rotated while appellant was within, causing him severe injuries.

*14 At trial, the appellant submitted requested instructions to the jury which the court refused. The gist of appellant’s claim is that the trial court erred in refusing to instruct the jury that appellant was on appellee’s property as a business visitor and as to the standard of care applicable to business visitors. Although somewhat inartfully phrased, the court’s charge, set out in the majority opinion, conveys the general negligence standard. At any rate, as the majority notes, the appellant has waived any defects in the charge other than the court’s failure to charge the jury with the submitted instructions.

Restatement (Second) of Torts §343A(1) (1965) provides:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Comment e to §343A states:

“In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.” (emphasis added).

The record incontrovertibly establishes that appellant was aware of the danger he faced. Obviously, he did not *15 know that appellee’s servant would start the carousel at that particular moment. But he knew that appellee’s servant had been working on the indexing mechanism, he knew that the carousel could be engaged by the mere pressing of two buttons, and he knew the injuries that awaited him should that event occur. The last sentence of comment e, supra, explains that appellee was under no duty to take extra precautions to protect appellant from the danger to which he exposed himself, and any instruction which would have imposed such a duty would have been misleading and erroneous.

If appellant had been injured by a dangerous condition both unknown and undetectable, the requested instructions would have been proper. In that context, the duty owed to a business visitor would have been relevant to determining appellee’s liability. In the context with which we are actually faced, however, instructing the jury as to appellant’s status as a business visitor would have been misleading. Appellee owed no duty to appellant, other than that of ordinary care, with respect to the danger that actually injured him.

It is true that appellant was a business visitor on ap-pellee’s property. It is also true, as a general rule, that a business visitor “enters the premises with the implied assurance of preparation and reasonable care for his protection and safety while he is there.” Restatement (Second) of Torts §341 A, comment a (1965). The implied assurance of preparation does not apply, however, to “dangers which are known to the visitor, or so obvious to him that he .may be expected to discover them.” Restatement (Second) of Torts §343A, comment e (1965). Indeed, “ [i] f he knows of the nature of the activities conducted upon the land and the manner in which they are conducted, he has all that he is entitled to expect. . . .” Restatement (Second) of Torts §341, comment a (1965). Therefore, the request to charge appellee with the higher duty of preparation was properly refused.

*16 The appellant contends that Darrah v. Jones & Laughlin Steel Corp., 397 Pa. 334 , 155 A.2d 201 (1959), mandates the opposite conclusion. However, in Darrah , the danger was neither known nor obvious to the plaintiff. Darrah was an electrician-painter, injured by one of the defendant’s cranes. There was no evidence in Dar-rah that the plaintiff was experienced in working on or near cranes, and there was nothing which would have led the plaintiff to foresee the crane operator’s action.

I would affirm the judgment of the lower court.

. Appellant defined “troubleshooting” as follows: “If the customer had difficulty in equipment that had been sold him, in that it failed to produce as guaranteed, I would go and rectify the situation.” [NT 25a] Appellant noted that a troubleshooter would need “enough background and experience to fix or suggest repairs on equipment that might not be working correctly.” [NT 122a]