author: ROWLEY, Judge: WIEAND, Judge, FORD ELLIOTT, Judge,

text:
    592 A.2d 1324
    Luanne MILLER v. PETER J. SCHMITT & CO., INC., t/d/b/a Loblaws, Edward Edinger and Mary L. Edinger, Individually, and t/d/b/a Edinger Super Ice Service. Appeal of PETER J. SCHMITT & CO., INC., t/d/b/a Loblaws.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1990.
    Filed June 17, 1991.

      Anthony J. Williott, Pittsburgh, for appellant.
    T. Warren Jones, Erie, for Edinger, appellee.
    Lawrence M. Kelly, Ellwood City, for Miller, appellee.
    Before ROWLEY, WIEAND and FORD ELLIOTT, JJ.
   ROWLEY, Judge:

On July 19, 1984, while shopping in a supermarket owned and operated by appellant Peter J. Schmitt & Co., t/d/b/a Loblaws (Loblaws), appellee Luanne Miller slipped and fell in front of an ice machine that had been stocked minutes earlier by appellee Edward Edinger, an independent contractor who regularly delivered ice to the machine. To recover for injuries sustained in the fall, Miller brought an action against Loblaws and Edward and Mary Edinger, individually, and t/d/b/a Edinger Super Ice Service (Edinger). A jury awarded damages to Miller in the amount of $35,000.00 and apportioned causal negligence as follows: Miller, 25%; Loblaws, 45%; and Edinger, 30% Following the denial of post-trial motions and the award of delay damages, a judgment was entered against Loblaws in the amount of $19,035.13 and against Edinger in the amount of $12,266.01.

In this timely appeal from the judgment, Loblaws contends that 1) because the evidence at trial was not sufficient under Pennsylvania law to sustain a verdict against Lob-laws, Loblaws is entitled to judgment notwithstanding the verdict; or, alternatively, 2) Loblaws is entitled to a new trial as a result of one or more errors made by the court during the course of the trial. In addition, Loblaws argues that the trial court erred in failing to order Edinger to indemnify Loblaws. For the reasons set forth below, we conclude that the remedy of judgment notwithstanding the verdict is not warranted but that the admission of evidence of a post-accident remedial measure requires that we vacate the judgment and remand the case for a new trial.

I. LOBLAWS’ REQUEST FOR JUDGMENT N.O.Y.

“The entry of judgment notwithstanding a jury verdict to the contrary is a drastic remedy” which will be granted “only if ‘no two reasonable persons could fail to agree that the verdict is improper.’ ” Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 264-65, 545 A.2d 926, 928-29 (1988) [quoting Neal by Neal v. Lu, 365 Pa.Super. 464, 478, 530 A.2d 103, 110 (1987), (quoting Northwest Savings Association v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986))]. In reviewing a motion for judgment n.o.v., we consider all of the evidence actually received and all reasonable inferences therefrom in the light most favorable to the verdict winner. Id., 376 Pa.Super. at 264-65, 545 A.2d at 929. Mindful of our scope of review, we turn to the facts of the case before us.

Edinger Super Ice Service, owned and operated by Edward L. Edinger, Sr., was under contract to deliver ice to Loblaws, the supermarket where the accident occurred. Mr. Edinger had been delivering ice to Loblaws for at least a year. When ice was needed, Loblaws would call Mr. Edinger; thus, Loblaws always knew when Mr. Edinger was going to make a delivery. During 1984 Mr. Edinger delivered ice to the store at least weekly and sometimes more frequently. These deliveries involved an average of several hundred bags of ice per week. The ice cubes had been packaged by Mr. Edinger in plastic bags with a tie or seal at the top.

The usual procedure when making a delivery at the store was for Mr. Edinger to back his truck up to the loading dock at the rear of the store and then ring a bell, which would summon a store employee to admit him into the store and to take an inventory of the ice being delivered. Mr. Edinger would then load the bags of ice onto a cart. When one of the store’s carts was available, he would use it; otherwise he would use his own open cart. Knowing that condensation or leakage from the bags of ice could drip onto the floor, he preferred to use one of Loblaws’ carts in this particular store because if water dripped onto the tile floor, which was regularly buffed to a high gloss, it would be “an accident waiting to happen” (N.T. at 174).

After the ice had been loaded onto a cart, Mr. Edinger would take it to the ice machine, which was located in the front of the store, a distance of approximately half a block from the receiving area in the back, or to one or more of several other locations in the store where ice was used. When doing so he normally carried a mop on the cart because of the possibility of spillage or leakage. Loblaws did not provide an employee to assist him in loading the ice machine. Although Loblaws had placed rugs in the produce area and at the front entrance because of the possibility of wet floors in those areas, there was no rug in front of the ice machine, which was located in a high-traffic area.

On July 19, 1984, the day of Ms. Miller’s accident, the weather was hot and sunny, with a temperature of approximately ninety degrees. Responding to a call from Loblaws, Mr. Edinger was admitted by Alois Stuczynski, the co-manager of the store. Mr. Edinger unloaded ice in the receiving area, which was not air conditioned. Because no Loblaws cart was available, he used his own cart to transport approximately twelve bags of ice to the ice machine at the front of the store. On the way to the ice machine he said hello to Earl Rosenquist, the store manager. After Mr. Edinger had placed the ice in the machine, he returned to the back of the store without mopping the floor; he was unable to remember whether he had had a mop on the cart at that time.

Within minutes of the delivery of ice, Ms. Miller slipped and fell on a “surface wetness” (N.T. at 57) located approximately three to five feet in front of the ice machine. She had not seen any water on the floor before she fell. After the accident she was assisted by the store manager, who told her “that probably the ice company had just been there and probably they had left the water on the floor” (N.T. at 60). The co-manager of the store examined the floor and saw two trails of water drops, “one heading to the freezer and the other back out to the store area” (N.T. at 222). Mr. Rosenquist, the store manager, prepared an accident report indicating that the floor was wet from the ice company filling the machine and listing as a step taken to prevent a recurrence, “Forbid Edinger Ice Company to carry ice in open carts” (N.T. at 208). As a result of Ms. Miller’s accident a rug was placed in front of the ice machine.

Loblaws contends that the “extreme remedy” of judgment notwithstanding the verdict is warranted because neither § 343 of the Restatement (Second) of Torts, which Loblaws considers to be controlling, nor § 344, which appellees consider to be controlling, provides a basis for holding Loblaws liable for appellee’s injury. According to Loblaws, the crucial issue under either section of the Restatement is whether “Loblaws act[ed] reasonably to discover any dangerous conditions on its premises?” (Brief for Appellant at 19). Contending that it exercised reasonable care, Loblaws points to the undisputed fact that at no time before July 19, 1984, had there been a similar situation involving Edinger. Therefore, Loblaws argues, since Loblaws did not cause or contribute to, did not have actual or constructive notice of, and could not have foreseen the accident, there is no basis on which to hold Loblaws liable for Ms. Miller’s injuries.

With respect to § 344 of the Restatement (Second) of Torts, we disagree. Section 344 reads as follows:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Comment f to § 344, which addresses the issue of foreseeability, serves to limit the landowner’s liability:

f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

However, as the trial court noted in its opinion denying Loblaws’ motion for judgment n.o.v., comment c to § 344 controls the issue before us. Comment c reads as follows:

c. Independent contractors and concessionaires. The rule stated applies to the acts of independent contractors and concessionaires who are employed or permitted to carry on activities upon the land. The possessor is required to exercise reasonable care, for the protection of the public who enter, to supervise the activities of the contractor or concessionaire, including the original installation of his appliances and their operation, and his methods.

(Emphasis added.) In Smith v. Lit Brothers, 174 Pa.Super. 102, 100 A.2d 390 (1953), this Court, quoting § 344 of the first Restatement of Torts, held that it is the duty of a storekeeper “to exercise a reasonably careful supervision of the appliances or methods of an independent contractor ... whom he has employed or permitted to carry on upon the land an activity which is directly or indirectly connected with his business use thereof.” Id., 174 Pa.Superior Ct. at 105, 100 A.2d at 392. Dependant/appellant Lit Brothers, a department store, had engaged an independent contractor to install an escalator from the third to the fourth floors but had not posted warning signs or installed protective devices to catch falling debris. Concluding that insufficient precautions had been taken to protect customers from the foreseeable hazards of the construction work, this Court affirmed the judgment obtained against Lit Brothers by a store patron who had been injured by falling glass.

In Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968), our Supreme Court, citing comment c to § 344 of the Restatement (Second) of Torts as well as this Court’s opinion in Smith v. Lit Brothers, observed that

[o]ne aspect of [the] duty [of a possessor of land to business invitees] is that the possessor of land must exercise a reasonably careful supervision of the appliances and methods of an independent contractor whom he has employed or permitted to carry on upon the land an activity directly or indirectly connected with the business use thereof.

Id., 430 Pa. at 29, 240 A.2d at 829. The Freemans, defendants/ appellants, had engaged a number of persons, including plaintiff/appellee Glass, to blacktop a parking lot next to the tavern they owned and operated. The Freemans’ son-in-law operated a tractor and left it running. His seven-year-old son climbed onto the tractor and attempted to drive it, with the result that the tractor went out of control and severely injured Glass. This Court held that the jury could reasonably have found that the Freemans had breached their duty to Glass under either § 318 (duty of possessor of land or chattels to control conduct of licensee) or § 344 of the Restatement (Second) of Torts.

Loblaws distinguishes the cases just cited from the present case by pointing out that Smith v. Lit Brothers involved an inherently dangerous activity, while in Glass v. Freeman it was foreseeable that an unsupervised young child at a construction site would act to cause injury. However, while these cases are factually distinguishable from the case before us, the principle cited in those cases is nevertheless applicable to the facts of the present case. Loblaws knew that Mr. Edinger, an independent contractor, would be delivering ice on a very hot day; that he would unload it in an area that was not air conditioned; that he was likely to use an open cart to transport it a distance of half a block to an ice machine located in a very busy part of the store; that he usually carried a mop on his cart because of the possibility that water would drip onto the floor; and that there was no rug, warning sign, or other precaution in the area of the ice machine. Loblaws contends that it “could not have reasonably foreseen that Edinger would both spill the water and fail to clean it up” (Brief for Appellant at 18). Whether, given the facts just noted, Loblaws’ reliance on Edinger’s performance record constitutes “reasonably careful supervision” of his methods is a question of fact for the jury. Accordingly, we deny Lob-laws’ request for the entry of judgment n.o.v.

II. LOBLAWS’ REQUEST FOR A NEW TRIAL

Loblaws raises several claims of trial court error, and our review reveals that at least one of them—the claim that it was error to admit evidence of Loblaws’ placement of a mat in front of the ice machine after the accident occurred— warrants the award of a new trial. Appellees concede that evidence of a subsequent repair is not admissible to impute antecedent negligence, O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 289, 423 A.2d 1251, 1260 (1980), but they contend that the evidence was relevant to show the feasibility of a protective measure, that the burden was upon Loblaws to request jury instructions limiting consideration of the evidence to the question of feasibility, that Loblaws “opened the door” by questioning witnesses concerning subsequent changes in procedure and the lack of a mat in front of the ice machine, and/or that Loblaws has waived this claim by failing to object to the testimony at issue.

The last of these contentions is easily disposed of. Before trial Loblaws filed a motion in limine asking the court to preclude 1) expert testimony as to the desirability of a mat and 2) “any testimony, comment or remark about a rug being placed in front of the ice machine following the accident, inasmuch as evidence of subsequent remedial measures is not admissible under well-established principles of Pennsylvania law.” The trial court granted the first of these requests but denied the second. Where a motion in limine has been argued and denied before trial, it is unnecessary for the movant’s counsel to renew his or her objection during trial. Commonwealth v. Gibson, 363 Pa.Super. 466, 468, 526 A.2d 438, 439 (1987). Therefore, we conclude that Loblaws has not waived its challenge to the evidence in question.

Similarly, we do not accept appellees’ contention that Loblaws was required to request jury instructions limiting consideration of the evidence to the question of feasibility. As authority for the claim, Loblaws cites O’Malley v. Peerless Petroleum, supra. In that case the appellant conceded that evidence of subsequent repairs was admissible for purposes other than the imputation of antecedent negligence but argued that the jury should have been given limiting instructions on the matter. This Court held that because the appellant had neither proposed limiting instructions nor objected to the jury charge as given, the appellant had failed to preserve the issue for appellate review. Id., 283 Pa.Super. at 289, 423 A.2d at 1260. Because O'Malley v. Peerless Petroleum, unlike the present case, did not involve the trial court’s denial of a pretrial motion in limine, the effect of which was to admit the evidence in question, it is not controlling in the case before us.

Our review of the record indicates that this matter was first touched upon by counsel for Ms. Miller, who asked Mr. Edinger if there was a rug in front of the ice machine on the day in question. Mr. Edinger replied that there was not. He was later asked by his own counsel whether Loblaws had ever placed a rug in front of the ice machine, asked him whether they should do so, or asked him to do so. He replied that they had not. When asked by counsel for Loblaws whether he had ever suggested to anyone at the store that there should be a rug in front of the ice machine, Mr. Edinger answered that “[w]hen I can find a rug, I put a rug in front of the machine” (N.T. at 175) but that he had not done so in this store and had not suggested to anyone at the store that such an action should be taken.

Mr. Edinger’s testimony was followed by that of Earl Rosenquist, the store manager, who was questioned by Loblaws’ counsel as follows:

Q: Has anything changed about the way [Mr. Edinger] makes his deliveries since [Ms. Miller’s] accident, as far as his deliveries are concerned?
A: To tell the you [sic] the truth, I’m not sure.
Q: Now, you’ve heard testimony about rugs and things such as that earlier in this case, you have been in the courtroom for that testimony, haven’t you?
A: Yes, sir.
Q: The testimony is that there was no rug in front of this particular ice machine, is that true?
A: Yes.
Q: Did you have rugs in other areas of your store?
A: Yes, sir.
Q: What about the rug or a mat—strike that. What determines whether or not a rug or a mat should be put down?
A: If there’s a problem or a potential problem in the store.
Q: Is it your testimony where you’ve had prior knowledge of liquid or something else on the floor frequently, you would put down a rug?
A: Yes, sir, for sure.
Q: And is it your testimony that there was no prior problem with this ice machine?
A: No.
Q: Earl, the rugs themselves, can they be a tripping hazard or a falling hazard?
A: Yes.
Q: Why is that?
A: We don’t like to use them unless you have to because you can turn a cart sideways, you can make a rug pop up, that can cause a problem.
Q: ... [W]ould there be a problem with a rug in this particular area?
A: Yes.
Q: What is that problem?
A: Coming down the aisle, if you make a right turn and turn the cart, you could definitely twist the rug and that could cause problems.
Q: In other words, you wouldn’t put a rug there unless you had to, is that true?
A: Right.
Q: Now, are there other products in your store that sweat or condensate on the outside?
A: Lots of products.
Q: Did you put rugs in those areas?
A: No, sir.
Q: Why is that?
A: You’d have rugs everywhere and possibly other problems if you had rugs.
Q: Customers don’t want rugs everywhere, do they?
A: It’s unsightly, plus pushing carts up and down on rugs isn’t nice either, it could cause problems.

N.T. at 192-95. Counsel for appellee Edinger cross-examined Mr. Rosenquist as follows:

Q: Now, during [Loblaws’ counsel’s] examination of you, he asked the question, have there been any changes in the delivery procedure, I’m talking about ice delivery here?
A: Okay.
Q: Since the time of this accident?
A: Uh-huh.
Q: What was your answer to that?
A: I didn’t think so, I don’t know to tell you the truth____
Q: Is the ice machine in the same location?
A: No.
Q: You aren’t by any chance using mats or carpets now, are you?
A: No.
Q: In front of the ice machine?
A: Right now, no.

N.T. at 206. Mr. Rosenquist’s testimony was clarified when he was questioned by plaintiff’s counsel as follows:

Q: Mr. Rosenquist, isn’t it true that after this fall of July 19, 1984, that a carpet was placed, a rug was placed in front of the ice machine?
A: Yes, that’s true. The ice machine now he asked me. It’s not where it’s been, it’s been in three places since then.
Q: And you moved it since then?
A: Yes.
Q: There was a change in the procedure followed by Mr. Edinger?
A: Wasn’t Mr. Edinger’s procedure. The only reason the rug was put there, it looked like there might have been a potential problem.

N.T. at 207. Finally, counsel for Loblaws asked the following questions on redirect:

Q: The rug that was placed in front of the ice machine following Luanne Miller’s accident, was that directly because of her accident?
A: Yes.
Q: And was that the same as in the other areas of your store, that you put a rug down where you knew you had a problem?
A: Yes, sir.

N.T. at 212.

I%is important to remember that all of this questioning took place after the trial court had ruled that evidence of the post-accident use of a rug would be admissible. At the start of the trial, counsel for Loblaws, referring to an earlier discussion in the judge’s chambers concerning the motion in limine, stated that “with respect to evidence that Loblaws later on did put a mat or rug in front of the ice machine ... I believe the court’s ruling was it would not preclude that testimony” (N.T. at 5). The court replied, “That’s right, concerning the fact Loblaws did place the rug later on, that will not be barred from the evidence, that will be proper evidence ” (N.T. at 5; emphasis added).

Because counsel for Loblaws was forced by this pretrial ruling to anticipate the eventual admission of the evidence to which he objected, we do not find that his own questioning “opened the door” to the admission of such evidence. Nor, given this record, do we conclude that the testimony concerning the post-accident use of a mat was admissible as evidence of the feasibility of a protective measure. The court’s pretrial ruling did not so limit the admissibility of the evidence, and it was not known prior to trial whether the feasibility of using a rug to protect against slippery floors would in fact be called into question.

In its opinion the trial court suggests that the policy considerations which normally bar the admission of post-accident remedial measures do not apply in the present case because, as the court interprets Mr. Rosenquist’s testimony, by the time a rug was placed in front of the ice machine, the machine was no longer located where it had been when the accident occurred. Although Mr. Rosenquist’s testimony is not entirely clear on this point, it is just as reasonable to infer from his testimony that a rug was placed in front of the machine immediately after the accident occurred and before the machine was moved to another location. Given the importance in this case of Loblaws’ efforts, or lack thereof, to cope with the possible effects of Edinger’s delivery of ice, we hold that the pretrial admission of a post-accident remedial measure was error which warrants a new trial.

Loblaws also contends that the trial court erred in admitting evidence that a person was assigned to accompany Edinger during his deliveries at another Loblaws store and in improperly instructing the jury with respect to a landowner’s duties. In addition, Loblaws argues that the trial court erred in failing to instruct Edinger to indemnify Loblaws. Because the alleged errors during the course of trial may not arise on retrial, we decline to address them in this appeal, and the grant of a new trial makes it unnecessary to consider the issue of indemnification.

Judgment vacated; case remanded for a new trial; jurisdiction relinquished.

WIEAND and FORD ELLIOTT, JJ., files concurring and dissenting opinions.

WIEAND, Judge,

concurring and dissenting:

I concur in the decision finding trial error which requires the granting of a new trial. However, I would go further and would cause judgment n.o.v. to be entered in favor of Loblaws. There is in the record of this case no evidence that the store was guilty of negligence which contributed to Luanne Miller’s fall.

On July 19, 1984, Miller slipped and fell because of water which had fallen on the floor of a Loblaws grocery store while an ice machine on the store premises was being stocked by Edinger Super Ice Service. To recover for injuries sustained in the fall she commenced an action against Peter J. Schmitt & Co., t/d/b/a Loblaws (Loblaws), and Edward and Mary Edinger, t/d/b/a Edinger Super Ice Service (Edinger), an independent contractor who regularly delivered packages of ice and placed them in a self-service machine. The action was tried before a jury which found that the plaintiff had sustained damages in the amount of thirty-five thousand ($35,000) dollars and apportioned causal negligence as follows: plaintiff—25%; Loblaws—45%; and Edinger—30%. Post-trial motions were denied, delay damages were added, and a judgment was entered against Loblaws in the amount of nineteen thousand, thirty-five and 13/ioo ($19,035.13) dollars and against Edinger in the amount of twelve thousand, two hundred sixty-six and Vioo ($12,266.01) dollars.

The evidence established that the plaintiff-appellee had slipped and fallen because of water which was present on the floor in front of a self-service ice machine. The only evidence concerning the source of the water was that it had fallen to the floor moments before the accident while Edward Edinger was restocking the machine with plastic bags of ice cubes. Edinger testified that he had transferred ice from a refrigerated truck to an open mesh cart which he had wheeled to the ice machine in the front part of the store. After emptying the cart, Edinger had returned to the receiving area of the store to get a second load of ice. It was during this period that the plaintiff encountered water on the floor and fell.

The law in Pennsylvania regarding a landowner’s liability to business invitees is stated in the Restatement (Second) of Torts, § 343, as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

In Moultrey v. Great A & P Tea Co., 281 Pa.Super. 525, 422 A.2d 593 (1980), the court applied this principle in a case in which a customer had fallen on fruit lying in the produce aisle of a grocery store. The court described the plaintiffs burden of proof under § 343 as follows:

The principle of law from which this rule of the Restatement was derived is that a possessor of land is not an insurer of the safety of those on his premises. E.g., Martino [v. Great A & P Tea Co.], 419 Pa. [229] at 233, 213 A.2d [608] at 610; Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. [641] at 646, 359 A.2d [440] at 442. As such, the mere existence of a harmful condition in a public place of business, or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of the proprietor’s duty of care to his invitees, nor raises a presumption of negligence. E.g., Amon v. Shemaka, 419 Pa. 314, 317, 214 A.2d 238, 239 (1965); Calhoun v. Jersey Shore Hosp., 250 Pa.Super. 567, 571, 378 A.2d 1294, 1296 (1977); Jones v. Sanitary Mkt. Co., 185 Pa.Super. 163, 165-66, 137 A.2d 859, 860-61 (1958). Therefore, in order to impose liability on a possessor of land, the invitee must present other evidence which tends to prove that the possessor deviated in some particular [sic] from his duty of reasonable care under the existing circumstances. Logically, the invitees case-in-chief must consist of evidence which tends to prove either that the proprietor knew, or in the exercise of reasonable care ought to have known, of the existence of the harm-causing condition. See, e.g., Martino, 419 Pa. at 233, 213 A.2d at 610; Katz v. John Wanamaker, Inc., 381 Pa. 477, 482, 112 A.2d 65, 67 (1955); Markman v. Fred P. Bell Stores Co., 285 Pa. 378, 382, 132 A. 178, 180 (1926); McMillan v. Mountain Laurel Racing, Inc., 240 Pa.Super. [248] at 254-59, 367 A.2d [1106] at 1109-11; Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. at 646, 359 A.2d at 442; Borsa v. Great Atl. & Pac. Tea Co., 207 Pa.Super. 63, 68, 215 A.2d 289, 292 (1965); Jones v. Sanitary Mkt. Co., 185 Pa.Super. at 166-76, 137 A.2d at 861.
In construing this portion of the Restatement, Pennsylvania courts have uniformly held that if the harmful transitory condition is traceable to the possessor or his agent’s acts, (that is, a condition created by the possessor or those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable for the resulting harm. See, e.g., Penn v. Isaly Dairy Co., 413 Pa. 548, 198 A.2d 322, 324 (1964); Finney v. G.C. Murphy Co., 406 Pa. 555, 178 A.2d 719 (1962). In a related context, where the condition is one which the owner knows has frequently recurred, the jury may properly find that the owner had actual notice of the condition, thereby obviating additional proof by the invitee that the owner had constructive notice of it. See, e.g., Borsa v. Great Atl. & Pac. Tea Co., 207 Pa.Super. at 68, 215 A.2d at 292; Clark v. Glosser Bros. Dept. Stores, 156 Pa.Super. 193, 39 A.2d 733 (1944). Where, however, the evidence indicates that the transitory condition is traceable to persons other than those for whom the owner is, strictly speaking, ordinarily accountable, the jury may not consider the owner’s ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it. E.g., Katz v. John Wanamaker, Inc., 381 Pa. at 482, 112 A.2d at 67-68; Parker v. McCrory Stores, 376 Pa. 122, 101 A.2d 377 (1954); Sheridan v. Horn & Hardart, 366 Pa. 485, 77 A.2d 362 (1951); Borsa v. Great Atl. & Pac. Tea Co., 207 Pa.Super. at 68, 215 A.2d at 292; Potter v. Glosser Bros. Dept. Stores, 146 Pa.Super. 129, 130-31, 22 A.2d 28, 29 (1941).

Id., 281 Pa.Superior Ct. at 529-531, 422 A.2d at 595-596 (emphasis added).

The record in the instant case contains no evidence that Loblaws knew or should have known that water was on the floor in front of the ice machine. The water had been allowed to fall to the floor by Edinger, who was not an employee of Loblaws but an independent contractor for whose conduct Loblaws was not accountable. The hazard created by the water, moreover, had not been in existence for such a period of time that Loblaws, in the exercise of reasonable care, should have known of the condition and corrected it. Indeed, Edinger was still engaged in stocking the ice machine when the fall occurred. There also was no evidence that water had ever accumulated on the floor on prior occasions when Edinger had delivered bags of ice to the store and placed them in the vending machine. Rather, the testimony showed that during the several years in which Edinger had been stocking the machine, there never had been a problem with water on the floor. Thus, it cannot be said that the presence of water was a frequently recurring condition.

Negligence on the part of a grocery store cannot be established by showing the mere presence of water or refuse on the floor, for such a condition may arise temporarily in any grocery store even though the proprietor has exercised the utmost care. Moultrey v. Great A & P Tea Co., supra. I would conclude, therefore, that plaintiffs failure to prove that appellant had actual or constructive notice of the water precluded a finding of negligence under § 343 of the Restatement (Second) of Torts.

Appellees argue that it was a hot summer day and that Loblaws should have anticipated (1) that ice would melt and (2) that water would leak from the plastic bags in which the ice had been packaged by Edinger. They argue, therefore, that a jury could find Loblaws negligent pursuant to Section 344 of the Restatement (Second) of Torts. This section provides as follows:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

The limited scope of this principle, however, is acknowledged by the language of comment f as follows:

f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Restatement (Second) of Torts, § 344 comment f.

Loblaws was not under a duty to police its premises against unexpected acts by Edinger. The evidence was that a similar condition had never occurred during prior years in which Edinger had been making deliveries of ice to the store. There was no contrary evidence. Thus, there is no evidentiary support for a finding that Edinger, on this occasion, was likely to create a dangerous condition by allowing water to leak or drip from the packages of ice which he was transporting to the ice machine. Without any reason to believe that such a condition might be created, Loblaws had no duty to give warning in advance that such a condition might be present. A grocery store’s liability to a customer under this section of the Restatement is not established by showing that ordinary ambient conditions might cause ice to melt. The fact that it was a hot day did not alone require the store to anticipate that Edinger’s delivery of packages of ice would cause a condition dangerous to other invitees. Compare: Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246 A.2d 875 (1968) (theater liable for injuries caused by inherently dangerous delinquent acts of third persons where evidence showed history of delinquent acts on the premises); Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968) (property owner liable where it was foreseeable that unsupervised young child at construction site would act to cause injury); Smith v. Lit Brothers, 174 Pa.Super. 102, 100 A.2d 390 (1953) (department store liable for injuries to customer where store failed to inspect, discover and remedy unsafe procedure by independent contractor engaged in inherently dangerous demolition work). Section 344 of the Restatement should not be construed to impose upon grocery store Owners the duty of anticipating every possible hazard which may arise on their premises by virtue of acts committed by third persons. Only where the store owner has failed to exercise reasonable care to protect his invitees against conduct which, from past experience, he should have anticipated will liability arise. A self-service grocery store hosts a steady stream of customers, many of whom may, at one time or another, accidentally create a potential hazard by dropping, dripping or spilling something on the floor. To require a grocery store to provide supervision of every third person who might create such a hazard would in effect make the store the insurer of its customers’ safety. This is not and never has been the law.

Comment c to Section 344 of the Restatement, upon which the trial court relied, describes a store owner’s duty to exercise reasonable care to supervise the activities of independent contractors. This duty of supervision was not present under the facts of the instant case. The duty described in comment c would have had application if Edinger had never before delivered ice and on a hot day Loblaws had made no effort to ascertain whether proper precautions were being taken to protect against melting and spillage. Here, however, Loblaws was familiar with Edinger’s procedures, and these procedures had proved entirely safe in the past. The law did not require strict supervision under these circumstances.

I would reverse the judgment entered in the trial court, and grant judgment n.o.v. in favor of the appellant.

FORD ELLIOTT, Judge,

concurring and dissenting:

I concur with Judge Rowley’s resolution of the issue involving Comment c to § 344 of the Restatement (Second) of Torts. However, I respectfully dissent from the majority’s grant of a new trial based upon its conclusion that the trial court erred in admitting evidence of a post-accident remedial measure.

I can find no error in the trial court’s resolution of this issue for the following reasons: (1) Loblaws “opened the door” to the introduction of the use of a carpet, a post-accident remedial measure; and (2) Loblaws effectively waived any objection on appeal based on its failure to request limiting instructions.

Appellee, Miller, was not the first to broach the subject of Loblaws’ use of a carpet as a subsequent remedial measure. Counsel for Miller pursued a line of questioning directed to establishing that carpets, among other precautionary measures, could have been utilized by Loblaws at little cost to prevent the kind of accident which occurred. During questioning of Mr. Edinger, counsel for Miller asked if there was a rug in front of the ice machine on the day in question. Such questioning is not improper, and it does not suggest that Loblaws was using a carpet as a subsequent remedial measure.

Mr. Edinger’s testimony was followed by that of Earl Rosenquist, the store manager, who was asked the following question by Loblaws’ counsel:

Has anything changed about the way [Mr. Edinger] makes his deliveries since [Ms. Miller’s] accident, as far as his deliveries are concerned?

With this question, counsel for Loblaws “opened the door” for further testimony regarding subsequent remedial measures. What followed were several more questions of Mr. Rosenquist, by counsel for Loblaws pertaining to the feasibility of rugs or mats as precautionary measures.

When counsel for appellee Edinger cross-examined Mr. Rosenquist, he asked if the ice machine was in the same location as it had been at the time of the accident. Mr. Rosenquist replied that it was not. In response to the question of whether Loblaws was now using mats or carpets in front of the machine; Mr. Rosenquist replied that they were not. Counsel for appellee, Miller, then attempted to clarify Mr. Rosenquist’s testimony and the following exchange took place:

Q: Mr. Rosenquist, isn’t it true that after this fall of July 19, 1984, that a carpet was placed, rug was placed in front of the ice machine?
A: Yes, that’s true. The ice machine now he asked me. It’s not where it’s been, it’s been in three places since then.
Q: And you moved it since then?
A: Yes.
Q: There was a change in the procedure followed by Mr. Edinger?
A: Wasn’t Mr. Edinger’s procedure. The only reason the rug was put there, it looked like there might have been a potential problem.

Such questioning by counsel for Miller was not improper in light of the prior testimony elicited by counsel for Loblaws and Edinger. Further, to preclude counsel for Miller from pursuing this line of questioning would have precluded counsel’s ability to impeach the prior incorrect testimony. See Leghart v. Montour Railroad Co., 395 Pa. 469, 150 A.2d 836 (1959).

Even if I were to find that such testimony was prejudicial to Loblaws, I am inclined to find any objection on appeal waived. While, as noted in the Opinion Announcing the Judgment of the Court, evidence of subsequent precautions ordinarily is inadmissible, an exception exists where the evidence is competent for some purpose other than to prove antecedent negligence See Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) (evidence of subsequent precautions is admissible to show a caution which was not costly or burdensome to defendant in relation to risk of danger involved and jury was instructed that evidence was admitted for such limited purpose). In accord is Hyndman v. Pennsylvania Railroad Company, 396 Pa. 190, 152 A.2d 251 (1959), in which evidence that subsequent to an accident involving a child’s contact with a transformer tower, the defendant attached signs to the tower reading “Danger, Live Wire, Keep Off” was admitted for the special purpose of demonstrating to the jury one of the precautionary steps which could have been taken by the defendant without hindering its operation. In Hyndman, it was held that no prejudice could be said to stem from the admission of this evidence as the jury was instructed adequately that the testimony had no bearing on antecedent negligence, but was only introduced to show a caution which was not costly or burdensome to the defendant in relation to the risk or danger involved. See also, Leghart v. Montour Railroad Co., supra (while evidence of subsequent precautions ordinarily is inadmissible, an exception exists where the purpose of the evidence is to show control or to impeach relevant testimony.)

Based on the foregoing, I cannot find as a matter of law that the trial court erred in denying Loblaws’ motion in limine and I agree with the majority that the challenging of the evidence by way of a motion in limine spared Loblaws the necessity of specifically objecting when testimony was elicited at trial. However, I cannot agree that the motion in limine relieved Loblaws from requesting limiting instructions as this court previously has found waiver for a defendant’s failure to so request such instructions. See O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 288-290, 423 A.2d 1251, 1260 (1980).

In its reply brief at page 7, Loblaws contends that it did submit such a point; however, a review of the Points for Charge contained in the record on appeal does not bear out this allegation.

For the foregoing reasons, I would affirm the judgment below.

      . Although Mary Edinger was named as a defendant, she was not involved in the events at issue and the trial court instructed the jury to disregard her.

      . Mr. Stuczynski testified that the receiving dock was air conditioned, although "the back room warmed up somewhat” (N.T. at 227) because the doors to the outside were opened and closed when deliveries were made; Mr. Edinger testified that the receiving area was not air conditioned. We are constrained by our standard of review to accept Mr. Edinger’s testimony on this point.

      . In a section of its argument dealing with another issue, appellant states that “Loblaws was prejudiced by the failure to instruct the jury fairly and entirely on Restatement § 343, inasmuch as it is the only possible basis on which Loblaws could be found liable, given the Trial Court's failure to instruct the jury on Restatement § 344” (Brief for Appellant at 25). Appellant has not raised and argued the latter claim as a separate issue, however. In addition, appellant maintains that "the standard under Restatement § 344 is no different than the one under Restatement § 343” (Brief for Appellant at 20) and states, in attempting to distinguish a case cited by appellee Edinger in connection with another issue, that the cited case "was not a case under Restatement of Torts § 344, as is the instant case” (Appellant’s Reply Brief to Appellee Edinger at 8).

      . Although the Honorable James B. Dwyer noted "April 10, 1989 motion granted” on the motion in limine, the discussion between Loblaws' counsel and Judge Dwyer, referred to at a later point in this opinion, makes clear that the motion was granted in part and denied in part.

      . By this statement we do not mean to imply that counsel for Ms. Miller “opened the door” to questions concerning the post-accident placement of a rug in front of the ice machine.


source: Caselaw Access Project

author: POPOVICH, Judge: DEL SOLE, Judge, BROSKY, Judge,

license: Public Domain

text:
    592 A.2d 1337
    Ryan CROSBY, Shane Crosby, and Celina Crosby, Minors by Their Parents and Natural Guardians Barbara and Ronald CROSBY, Jr., H/W and Barbara and Ronald Crosby, Jr., H/W in Their Own Right, Appellants, v. Marvin SULTZ, D.O., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1990.
    Filed June 19, 1991.

      Murray L. Greenfield, Philadelphia, for appellants.
    Thomas W. Smith, Philadelphia, for appellee.

      Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

Once again, this Court is confronted with a recurring issue of far-reaching importance, to wit, whether a physician may be held liable for the actions of his patient, which resulted in injury to third party victims. Here, we are not presented squarely with a “duty to warn” situation. Rather, we must decide if a cause of action may be sustained against a doctor where the doctor failed to monitor his patient’s conduct. After a comprehensive review of the law in Pennsylvania and other states, as well as consideration of the facts before us, we hold that a doctor has no duty to control his patient’s driving habits or to protect third persons from the injuries occasioned by unforeseeable accidents such as the one illustrated below.

This appeal is from an order entered in the Court of Common Pleas of Philadelphia County granting the appellee Dr. Marvin Sultz’s preliminary objections and dismissing the appellants Crosbys’ complaint with prejudice. The question presented for our review is whether the trial court erred in dismissing the Crosbys’ complaint. For the reasons which follow, we affirm.

On May 8, 1988, Barbara Crosby and her children, Ryan, Shane and Celina, were struck by a motor vehicle operated by James Jackson. Mrs. Crosby and her children, all pedestrians at the time, suffered severe injuries as a result of the accident. Seeking recovery for their injuries, Mrs. Crosby, her children and her husband instituted suit against Jackson in July, 1988.

During the course of discovery in the Crosby v. Jackson litigation {see n. 1, supra.), the Crosbys learned that Jackson was a diabetic who had been treated by Dr. Sultz for this condition. The Crosbys assert that Jackson’s diabetes caused him to sustain a temporary lapse of consciousness at the wheel of his car and simultaneous loss of control of his vehicle, which resulted in the accident. Based upon this belief, the Crosbys commenced a separate action against Dr. Sultz on September 14, 1989.

On November 8, 1989, Dr. Sultz filed preliminary objections to the complaint and specifically requested that the action be dismissed because the Crosbys failed to join Jackson as a necessary party. In addition, Dr. Sultz challenged three subparagraphs of the complaint alleging that they were vague and ambiguous.

Before the trial court ruled on these objections, the Crosbys filed an amended complaint on December 6, 1989. (On December 29, 1989, the trial court granted Dr. Sultz’s preliminary objections pertaining to the complaint’s insufficiently pled subparagraphs and ordered these statements stricken. The trial court added that the order may be rendered moot if the Crosbys had filed an amended complaint which rectified the problems.)

Dr. Sultz filed preliminary objections on January 16, 1990, in response to the amended complaint. In his objections, Dr. Sultz demurred to the amended complaint on the basis that the Crosbys had failed to set forth a cause of action. Dr. Sultz further objected to the Crosbys’ capacity to bring suit. All of Dr. Sultz’s objections were sustained on March 29, 1990. The trial court ordered that the amended complaint be dismissed with prejudice. The Crosbys subsequently filed this timely appeal.

Our standard of review is well established. In considering the trial court’s grant of a demurrer

we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts. Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. All doubts are resolved in favor of the pleader. Furthermore, by filing preliminary objections in the nature of a demurrer, appellees have admitted the factual allegations of the complaint for purposes of the demurrer.

Ward v. Serfas, 387 Pa.Super. 425, 428-29, 564 A.2d 251, 252-53 (1989) (citations omitted). See also Gordon v. Lancaster Osteopathic Hospital Ass’n, Inc., 340 Pa.Super. 253, 260, 489 A.2d 1364, 1368 (1985); DeAngelo v. Fortney, 357 Pa.Super. 127, 515 A.2d 594 (1986). In this light, we shall evaluate the Crosbys’ appellate claim.

In order to set forth a cause of action in negligence, the Crosbys were required to plead sufficient facts which would establish that: (1) the doctor owed them a duty of care; (2) the doctor breached that duty; (3) they were injured; and (4) the injuries were proximately caused by the doctor’s breach of duty. Ellis v. Sherman, 512 Pa. 14, 18, 515 A.2d 1327, 1328 (1986). In applying these elements to this case, the trial court concluded that the Crosbys failed to establish that Dr. Sultz owed them any duty. See Trial court opinion, May 30, 1990, at 2. See also Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672 (1986); Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606 (1985) (discusses elements of negligence); Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 495 A.2d 963 (1985) (same); Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432 (1980) (same). The Crosbys contend that the trial court erred and argue that such a duty was imposed because of the nature of the relationship between Dr. Sultz and his patient Jackson. Thus, the inquiry which we must resolve first is whether Pennsylvania law imposes a duty on physicians to protect third parties from harm which could be inflicted on such persons by the physicians’ patients.

Certain provisions of the Vehicle Code, 75 Pa.C.S.A. §§ 101-9701, are crucial to our discussion of this case. Thus, before we embark on our analysis, we note the following. Section 1517 of Title 75 provides for the creation of a Medical Advisory Board, which is to be comprised of a variety of medical, law enforcement and governmental officials. In addition, this provision directs the Medical Advisory Board to develop rules and regulations pertaining to the physical and mental criteria for the licensing of drivers, which are to be reviewed and adopted by the Pennsylvania Department of Transportation. See 75 Pa.C.S.A. § 1517(b) and 67 Pa.Code § 83.1 (1990). Specifically, the Medical Advisory Board must define disorders involving lapses of consciousness or other mental or physical disabilities which would affect the ability of a person to drive safely. See 75 Pa.C.S.A. § 1518(a). In fulfillment of these statutory duties, the requisite physical and mental criteria have been promulgated in the Pennsylvania Code as follows:

(a) General. A person afflicted by any of the following conditions may not drive if, in the opinion of the examining physician, the conditions are likely to interfere with the ability to control and safely operate a motor vehicle:
(1) Loss or impairment of the use of a foot, leg, finger, thumb, hand or arm, as a functional defect or limitation.
(2) Unstable or brittle diabetes or hypoglycemia, unless there has been a continuous period of at least 6 months freedom from a related syncopal attack.
(3) Cerebral vascular insufficiency or cardiovascular disease, including hypertension, with accompanying signs and symptoms.
(4) Periodic loss of consciousness, attention or awareness from whatever cause.
(5) Rheumatic, arthritic, orthopedic, muscular or neuromuscular disease.
(6) Mental deficiency or marked mental retardation in accordance with the International Classification of Diseases. For diagnostic categories, terminology and concepts to be used in classification, the physician should refer to the Diagnostic and Statistical Manual of the American Psychiatric Association and the Manual on Terminology and Classification in Mental Retardation of the American Association on Mental Deficiency.
(7) Mental or emotional disorder, whether organic or functional.
(8) Use of any drug or substance, including alcohol, known to impair skill or functions, regardless [of] whether the drug or substance is medically prescribed.
(9) Another condition which, in the opinion of the examining licensed physician, could interfere with the ability to control and safely operate a motor vehicle.

67 Pa.Code § 83.5 (1986).

Where a person is diagnosed as having one or more of the above disorders, the physician or other health professional who is responsible for treating the patient must utilize these criteria and render an opinion as to whether the disorder affects the patient’s ability to drive safely. See 67 Pa.Code § 83.5 (1986), supra., and 67 Pa.Code § 83.1 (1990). If the physician or other health professional determines that the disease impinges upon the patient’s driving abilities, then the physician must report the patient’s name, address and date of birth to the Department of Transportation. See 75 Pa.C.S.A. § 1518(b).

Neither of the parties has referred us to any cases which interpret the above provisions, nor has our own research uncovered any such authority. However, we note that the appellate courts have recently addressed similar questions in DiMarco v. Lynch Homes—Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990), and Dunkle v. Food Service East, Inc., 400 Pa.Super. 58, 582 A.2d 1342 (1990). Because of the dearth of authority on this subject, it is necessary that we review these decisions.

In DiMarco, the plaintiff maintained sexual relations with a woman who was employed as a blood technician. While she was withdrawing blood from a patient, she was accidentally punctured by a needle which had been used on the patient. The woman was later informed that the patient was a carrier of hepatitis and other diseases. As a result, she immediately sought treatment from her physicians who advised her to abstain from sexual relations for a period of six weeks. Although the woman followed this advice and abstained from sexual intercourse for a period of eight weeks, she and her partner, the plaintiff, subsequently contracted hepatitis. DiMarco then brought suit against the woman’s physicians asserting that they were negligent in failing to warn her that hepatitis could be sexually transmitted to her partner for a period of six months after her exposure to the disease. The physicians filed preliminary objections in the nature of a demurrer which were sustained by the trial court. On appeal, this Court reversed and held that the physicians owed a duty to advise the patient reasonably of her ability to transmit the disease. Additionally, we stated that where a third party had actually relied upon the physicians’ advice, the duty should be extended to that third party. In affirming the decision of this Court, the Pennsylvania Supreme Court expressly extended the physicians’ duty to encompass third-parties whose health would be threatened by contact with a patient who is a carrier for a communicable disease. See DiMarco, 525 Pa. at 562-64, 583 A.2d at 425.

A panel of this Court reached a contrary result in Dunkle, supra. In Dunkle, the plaintiff’s decedent resided with a patient who was diagnosed as having a schizophreniform disorder for which his doctor had prescribed medication. The patient stopped taking the medication upon the advice of his psychiatrist, after which he became “nasty” and “violent.” As a result, the psychiatrist represcribed the drug.

Later, the psychiatrist discontinued the patient’s use of the drug, but directed him to ingest the medication on an “as needed” basis. Following his discharge from the psychiatrist’s care, the patient strangled his girl-friend, who died one week after the attack. The administrator of the victim’s estate instituted suit against the patient’s health care professionals, alleging that these individuals had been negligent in failing to warn or protect the decedent from the patient’s hostility. The defendants filed preliminary objections in the nature of a demurrer, but the trial court postponed ruling on the objections until after discovery had been effectuated. The defendants thereafter filed motions for summary judgment which were granted by the trial court. On appeal, this Court affirmed the trial court’s decision and declined to extend the psychiatrist’s/psychologist’s duty of care to third parties. See Dunkle, 400 Pa.Super. at 63-64, 582 A.2d at 1345. In reaching this result, we distinguished DiMarco, and reasoned that a duty could not be imposed on the treating parties because there was no indication that the patient had threatened to inflict harm on the victim or any other individual. See Dunkle, 400 Pa.Super. at 68, 582 A.2d at 1347-48.

A careful analysis of these decisions reveals that in each case, the issue of whether the physicians owed a duty to the third persons turned upon the question of foreseeability. In essence, the question asked and addressed by the appellate courts was whether it was reasonably foreseeable that third persons would be harmed by the conduct of the physicians. In DiMarco, the Supreme Court answered this in the affirmative and observed that it was reasonably foreseeable that patients who have been exposed to an infectious and communicable disease will transmit the disease to third parties unless adequate medical advice is given to prevent the spread of the disease. See DiMarco, 525 Pa. at 560-64, 583 A.2d at 424-25. In Dunkle, however, this court concluded that it was not reasonably foreseeable that a patient suffering from mental illness would inflict harm on a particular individual where the patient had never evidenced an intent or desire to harm that person. See Dunkle, 400 Pa.Super. at 64, 582 A.2d at 1345. Having reviewed these decisions, we must now apply their principles to the facts of this case.

We find that the instant case is more akin to this Court’s decision in Dunkle than to the supreme court's holding in DiMarco. At the onset, we note that the supreme court in DiMarco recognized statutory authority in support of the proposition that physicians are required to report individuals suspected of having a communicable disease to the local and state boards of health. See the Disease Prevention and Control Law of 1955, 35 P.S. § 521.4. See 28 Pa.Code. § 27.21 (1989). See DiMarco, 525 Pa. at 562-64, 583 A.2d at 425. Comparatively, under the facts of this case, Dr. Sultz was not required by statute to report Jackson’s health problem to anyone.

In enacting the Motor Vehicle Code, one of the overriding goals of the legislature was to promote and facilitate the safety of the public highways. In furthering this purpose, the legislature considered that there are certain medical disorders which by their nature have a discernible impact upon an individual’s ability to drive safely. See 75 Pa. C.S.A. §§ 1517-1518; 67 Pa.Code §§ 83.1-83.3 (1990); §§ 83.4-83.5 (1986). Thus, the legislature has imposed upon physicians who diagnose and treat such disorders the duty of notifying the Department of Transportation of the existence of individuals who suffer from these specific conditions and who, in the opinion of the physician, are thereby rendered unable to drive in a safe manner.

However, it is not the physicians’ job to protect all third parties who might come into contact with the affected individual. Clearly, the provisions implicated here do not mention a duty to report the patient’s medical deficiency to any specified third party. Rather, the physicians’ only responsibility is to evaluate (within the confines of the legislative language) the patient’s ability to operate a motor vehicle and to notify the Department of Transportation if the patient is unable to drive in a safe manner. Reporting the patient to the proper authorities when necessary is very different from imposing upon a treating physician the duty of protecting the entire public from any harm that might result from his/her patient’s actions.

We have reproduced 67 Pa.Code § 83.5, infra. For the sake of argument, the only sections that even are remotely applicable to the instant circumstances are 67 Pa.Code § 83.5(a)(2), (a)(4) and (a)(9). Section (a) is worthy of reiteration, in that it clearly provides:

A person afflicted by any of the following conditions may not drive, if, in the opinion of the examining physician, the conditions are likely to interfere with the ability to control and safely operate a motor vehicle.

Id. (emphasis added). The condition enumerated in subsection (2) is unstable or brittle diabetes, unless there has been a continuous period of at least six months freedom from a related syncopal attack. (Emphasis added). Here, not only has there been six months of freedom from a loss of consciousness due to Mr. Jackson’s diabetic condition, but additionally, there is no allegation that Mr. Jackson hás ever suffered a loss of consciousness as a result of his affliction. This same analysis applies to subsection (4), which disallows licensing if an individual suffers from periodic losses of consciousness, attention or awareness from whatever cause.

Subsection (9), the “catch-all” provision, is the only part of 67 Pa.Code § 83.5 that may actually apply to this case. Subsection (9) directs that a person may not drive if the examining physician determines “another condition which ... could interfere with the ability to control and safely operate a motor vehicle.” Before we discuss the proposed applicability of this subsection to the facts of the instant case, we feel compelled to comment on the effect of a “catch-all” provision.

It appears that the Medical Advisory Board would include a “catch-all” provision to encompass any conditions that it did not already specifically enumerate, in order to effectuate the purpose and intent of the Motor Vehicle Code. In interpreting statutes, or in this case, a particular section of the Pennsylvania Code, a court should not assign a contrived meaning to clear language, nor should it construe the statute or provision in question so as to promote or further absurd results. See 1 Pa.C.S.A. § 1921, et. seq. See also Zimmerman v. O’Bannon, 497 Pa. 551, 554-57, 442 A.2d 674, 676-77 (1982) (“It is the duty of this Court to ascertain the intention of the General Assembly; that every statute shall be construed, if possible, to give effect to all of its provisions; that where the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit; and that the General Assembly does not intend a result that is absurd or unreasonable.” [citations omitted]); Petition for Division into Wards of Scott Twp., 388 Pa. 539, 130 A.2d 695 (1957) (where a statute specifically designates certain provisions, all omissions should be understood as exclusions); Patton v. Republic Steel Corp., 342 Pa.Super. 101, 108-10, 492 A.2d 411, 415 (1985) (accord). See In re Private Det. License of Keibler Det. Agency, Inc., 279 Pa.Super. 276, 420 A.2d 1331 (1980) (courts are without power to create additional authority in a statute if the words are clear and unambiguous); Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980).

With these rules in mind, it would seem that since the Medical Advisory Board specifically mentioned certain types of diabetes in the Pennsylvania Code as standards which might preclude licensing, the “catch-all” provision, to include yet another form of the disease, would be redundant. In addition, to structure our own interpretation of subsection (9) to include a diabetic condition that is not shown to be “unstable” or “brittle” or subject to attacks, would be to ignore the clear directives of subsection (2). See Commonwealth v. Edwards, 384 Pa.Super. 454, 559 A.2d 63 (1989) (language must be construed according to common and approved usage when interpreting a statute); Patton v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985) (legislative intent is the touchstone in statutory interpretation); Causer v. Mandarino, 338 Pa.Super. 564, 488 A.2d 36 (1985) (a court must look at the totality of the statute in discerning legislative intent). It would only make sense, therefore, that without reason to believe that Jackson suffered from one of the conditions enumerated in 67 Pa.Code § 83.5, Dr. Sultz certainly had no duty to report his patient’s diabetes to the Department of Transportation.

Even if Dr. Sultz did have a duty to disclose Jackson’s name to the Department of Transportation, we can find no logical connection between that obligation and a duty of care to the Crosbys. The Crosbys were not foreseeable victims of Dr. Sultz’s actions or inactions. See Zanine v. Gallagher, 345 Pa.Super. 119, 497 A.2d 1332 (1985) (scope of duty is limited to those risks that are reasonably foreseeable by the actor under the circumstances); Alumni Ass’n, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095 (1987) (accord), aff'd, 524 Pa. 356, 572 A.2d 1209 (1990). See also Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 207, 199 A.2d 875, 878 (1964) (duty extends to those “falling within the foreseeable orbit of risk of harm.”). To discount the important element of foreseeability here is effectively to overrule well-established and precedential tort law, as well as to extend liability limitlessly to treating physicians vis-avis third party victims.

Furthermore, we fail to see how Dr. Sultz’s conduct in any way jeopardized the lives of the Crosbys. Without engaging in a lengthy discussion of proximate cause or legal causation, suffice it to say that Jackson did not evidence any propensity towards, much less any pattern of, falling ill behind the wheel of a car. We would decline to impose upon the treating physician the burden of not only determining the possibility that a patient’s diabetes may flare up and act as the causal link to a subsequent accident, but in addition, reporting the illness in light of the physician’s “diagnosis” and prognosis so as to avoid liability if the injured victim sues. This responsibility defies logic and is unworkable. See Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988) (courts are permitted to consider practical consequences of particular statutory interpretations). See also Hasenei v. United States, 541 F.Supp. 999 (D.Md.1982) (addresses an issue similar to the one before this Court and holds in favor of the defendant).

We note here that diabetes is not a communicable disease, such as hepatitis. See DiMarco, supra. Thus, we refrain from likening the instant circumstances to those in DiMarco.

While we fully appreciate the policy concerns underlying the enactment of the Motor Vehicle Code, we cannot condone, under the guise of promoting public policy, sustaining a cause of action against Dr. Sultz. To do so would not be to promote and facilitate the safety of the public highways. It would be to hold a doctor strictly liable for the conduct of his/her patients under supreme court precedent whose applicability to this case is tenuous at best.

Moreover, a doctor’s first responsibility is to his/her own patient, not to all third parties. It is true that the Pennsylvania Supreme Court’s stated purpose in deciding DiMarco was to protect third persons who were injured by a doctor’s misadvice to his/her patient. See DiMarco, 525 Pa. at 560-64, 583 A.2d at 424-25. However, even in DiMarco, the doctor’s first and foremost responsibility was to his patient. If the doctor had given proper advice to Ms. Viscichini in the DiMarco case, and the third party victim became ill nevertheless, would the physician still have had a duty to that third party victim? We cannot conceive that the Pennsylvania Supreme Court envisioned this type of resolution when it decided DiMarco.

In addition, here, there is no evidence or allegation that Dr. Sultz did not evaluate Mr. Jackson’s ability to drive safely in connection with his particular “handicap” or “disorder.” Rather, the facts indicate only that Mr. Jackson’s illness was monitored and treated with insulin. The Crosbys’ conclusory statements indicate that Dr. Sultz knew that Mr. Jackson’s condition was likely to cause loss of consciousness. Significantly, there is nothing in the pleadings which set forth the reasons why Dr. Sultz should have concluded that Mr. Jackson’s diabetes made him dangerous to third persons. Absent any allegations in the pleadings to satisfy us that Dr. Sultz may have been in any way at fault for the events which led to this litigation, we must sustain the trial court’s grant of Dr. Sultz’s demurrer.

Here, the legislature’s goal of ensuring and promoting safe highways by monitoring the driving abilities of the sick and infirm is merely tangential to a doctor’s duty to diagnose and treat his/her patient properly. Where, as here, there is no evidence whatsoever to suggest that the physician breached his medical duty to his patient or his statutory duty to report his patient’s illness where nothing in the patient’s history suggested a propensity to faint at the wheel of a car, then we certainly cannot conclude that the doctor breached a duty to a third party where no duty existed. See Boyce v. U.S. Steel Corp., 446 Pa. 226, 230, 285 A.2d 459, 461 (1971) (there can be no negligence absent a duty of care). The Medical Advisory Board set forth with specificity the kinds of disabilities for which it felt disclosure necessary. It did not require physicians to tailor their patient’s illnesses and diseases so as to fit into the categories in an effort to avoid potential liability by third parties.

Finding that the Crosbys did not plead facts in their amended complaint sufficient to set forth a cause of action against Dr. Sultz, we hold that the trial court properly sustained Dr. Sultz’s preliminary objections in the form of a demurrer and rightly dismissed the Crosbys’ amended complaint with prejudice.

Order affirmed.

DEL SOLE, J., files a concurring opinion.

BROSKY, J., files a concurring statement.

DEL SOLE, Judge,

concurring:

While I agree with the result reached by Judge Popovich, I find it necessary to express my views on the issue presented. I do not believe that the ultimate issue we have been asked to decide is as framed by the Majority. We are not being asked whether “a doctor has [a] duty to control his patient’s driving habits or to protect third persons from the injuries occasioned by unforeseeable accidents ...” (Opinion p. 1338, 1339) nor are we required to “resolve ... whether Pennsylvania law imposes a duty on physicians to protect third parties from harm which could be inflicted on such persons by the physician’s patients.” (opinion p. 1340) Clearly, a doctor has no duty to control a patient’s driving habits. Further, the appellate courts of this Commonwealth have established that in certain instances a physician has a duty to third parties which can result in liability if breached. DiMarco v. Lynch Homes, 525 Pa. 558, 583 A.2d 422 (1990); Dunkle v. Fd. Service East Inc., 400 Pa.Super. 58, 582 A.2d 1342 (1990). In those cases, our courts have established the basic parameters of potential liability of health care providers to third party non-patients. That liability rests upon foreseeability and the duty imposed by that foreseeability.

In this case, we have existing a statutory duty imposed upon a physician to report certain medical conditions to the Department of Transportation. The question presented is whether the failure to report a reportable condition subjects the doctor to third party liability when injury occurs as a result of the manifestation of that condition. Like the Majority, I conclude that the answer is no and therefore, I too affirm the trial court.

The issue before us is to determine if a private remedy should be implied. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) the United States Supreme Court set forth four criteria to be examined in making that determination. It focused on discerning the intent of Congress in enacting the legislation. Three of those factors are germane to a state court setting. They are:

First, is the plaintiff one of the class for whose especial benefit the statute was enacted, -that is, does the statute create a ... right in favor of the plaintiff? Second, is there is any indication of a legislative intent, explicit or implicit, to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?

422 U.S. at 78, 95 S.Ct. at 2008 (citations omitted).

Applying this test, I believe that none of the conditions are met. I begin my analysis by first examining the second prong of the Cort test. Clearly, if the legislation contained language expressly granting or denying a private cause of action, the inquiry would end. This statute does neither and, therefor, we must proceed to the application of the remaining criteria to our facts to discern the legislative intent.

I conclude that the legislation does not seek to benefit a particular class of persons but rather is meant to identify potential impaired drivers so that they may be screened to determine if their operating privileges should be revoked. While it is true that this benefits the public at large, it does not benefit the plaintiff as a member of a particular class for whose protection the statute was passed. Therefore, the first part of the test has not been met.

Also, I conclude that judicial intervention is not consistent with the underlying scheme of the legislation. While it can be argued that the potential of third-party liability would cause doctors to be more inclined to forward reports to PennDot, thereby identifying more impaired drivers, we must keep in mind that it is not the filing of a report that insures the patient will not drive. First, there is no guarantee that if a report is filed, a patient’s operating privileges would be revoked. The Department of Transportation could exercise its discretion and not revoke the privileges. In addition, if the department incorrectly failed to revoke Mr. Jackson’s drivers license, the plaintiffs would have no cause of action against the Commonwealth. Giovannitti v. Commonwealth of Pennsylvania, Department of Transportation, 113 Pa.Cmwlth. 572, 537 A.2d 966 (1988). Also, we must also be mindful of the fact that many people drive while their licence is suspended. Under these circumstances the imposition of liability on the defendant does not further the purposes of the legislation.

Therefore, I am in agreement with Judge Popovich that the failure of a physician to file a report with the Department of Transportation, as required by the act, is not a basis for a private cause of action seeking to impose third-party liability against that doctor.

BROSKY, Judge,

concurring.

I agree with the majority that the allegations set forth in appellants’ complaint fail to set forth a cause of action. I therefore concur in the result reached by the majority. However, I write separately to express my concerns regarding the implications of the majority’s holding.

The report of a patient to the state is undoubtedly a serious matter because the ability to legally operate a motor vehicle is not a luxury in today’s society; rather, it is a matter of necessity for most individuals. Because of the importance of maintaining one’s driving privileges, physicians may not want to subject their patients to the loss of their driving licenses by reporting their patients to the state. My concern with the majority’s holding is that once the incentive of avoiding potential lawsuits from injured third-parties is removed, physicians may no longer feel compelled to comply with their statutory reporting requirements.

The legislature has attempted to promote highway safety and protect members of the public by requiring physicians to report their patients to the appropriate authorities where the patients have particular medical conditions that may affect their ability to safely operate a motor vehicle. Without question, a physician’s compliance with the reporting requisites cannot guarantee that the patient’s driving license will be revoked by the state or that the patient will not illegally operate his vehicle. However, the physician’s compliance will at least further the legislative scheme by putting the state on notice that certain individuals may be unqualified or incompetent to safely operate a motor vehicle. Where a physician fails to report a patient to the state, the legislative scheme is compromised in that it becomes virtually impossible for the state to identify individuals affected by medical conditions which impact on their ability to drive safely. Thus, a physician’s compliance with the statute is a necessary and essential component; without such compliance, the system will simply no longer work. The courts should therefore be reluctant to encourage physicians to breach their statutory duties; instead, physicians should be urged to continue to report their patients where the appropriate criteria have been met.

      . See Crosby v. Jackson, No. 1255 PHL CCP 1988.

      . Due to our disposition of this appeal, we need not address this contention.

      . In their amended complaint, the Crosbys deleted one of the subparagraphs to which Dr. Sultz had objected and revised the remaining subparagraphs so that they conformed to the specificity requirements referred to by Dr. Sultz.

      . The following relevant averments were contained in the Crosbys’ amended complaint:
      4. At all times relevant hereto, a Mr. James Jackson was under the care of Defendant Dr. Marvin Sultz for treatment of a diabetic condition.
      5. As Mr. Jackson’s primary treating physician, Defendant Dr. Marvin Sultz was aware of and had complete knowledge of the fact that said James Jackson was suffering from a condition of diabetes which required regular monitoring and insulin treatment.
      6. As a licensed physician practicing medicine in the Commonwealth of Pennsylvania, Defendant Dr. Marvin Sultz was aware of and had complete knowledge of the fact that Mr. Jackson’s condition was likely to cause temporary loss of consciousness due to sudden changes in blood sugar levels.
      7. On or about May 8, 1988, at approximately 12:20 P.M., James Jackson was operating a motor vehicle owned by Defendant Lorraine Jackson at the intersection of Frankford Avenue and Levick Street in Philadelphia, PA. when suddenly and without warning Mr. Jackson struck Plaintiff Barbara Crosby and her three small children, Plaintiffs, Ryan, Shane and Celina Crosby, pedestrians, injuring Plaintiffs as will be set forth more particularly below.
      8. On the aforesaid date and time, Mr. James Jackson suffered a temporary loss of consciousness resulting from his diabetic condition, which was the direct and proximate cause of the aforesaid accident____
      9. The negligence of the Defendant consisted, inter alia, of the following:
      a. allowing and permitting Mr. James Jackson to operate a motor vehicle when Defendant knew or should and could have known of the dangerous propensities of Mr. Jackson’s condition;
      b. failing to exercise reasonable care and judgment in allowing Mr. James Jackson to operate a motor vehicle;
      c. failing to conform to the requisite standard of medical care; in that Defendant Dr. Marvin Sultz allowed Mr. Jackson to drive though, Defendant, a licensed physician, had complete knowledge that Mr. Jackson’s condition was likely to cause temporary loss of consciousness due to changes in blood sugar level;
      d. failure to provide and render proper and reasonable medical care under the circumstances, in that Defendant as, Mr. Jackson's primary treating physician, was aware and had complete knowledge of the fact that Mr. Jackson was suffering from a condition of diabetes which required regular monitoring treatment;
      e. failure to diagnose and treat properly the condition of Mr. James Jackson;
      f. failure to employ the necessary and proper diagnostic evaluations in order to determine that Mr. Jackson was unable to operate a motor vehicle;
      g. failure to utilize the appropriate and requisite laboratory, hospital and consulting facilities;
      h. failure to make known to Plaintiff, the general public, and James Jackson, the dangers inherent to Mr. Jackson's condition; [and]
      i. failure to properly notify the Commonwealth of Pennsylvania of the severity of Mr. Jackson’s condition and the fact that same rendered him unable to properly operate a motor vehicle pursuant to 67 Pa.Code § 834, [sic § 83.4] et seq.
      Appellants’ Amended Complaint, paras. 4-9.
      Because these same averments form the basis of the remaining counts of the complaint and are set forth in subsequent paragraphs in substantially similar form, see Appellants’ Amended Complaint, i.e. paras. 17(a)-17(c), it is unnecessary to reiterate these additional allegations. We hasten to add, however, that Mr. Crosby's claim against Dr. Sultz was instituted as one in consortium for loss of companionship with his injured wife. See Appellants’ Amended Complaint, at para. 14.

      . This provision was repealed to the extent that the Attorney General has been made a member of the Medical Advisory Board. See Act of 1980, October 15, P.L. 950, No. 164, § 505, 71 P.S. § 732-505.

      . See 67 Pa.Code § 83.4 (1986) for a description of the criteria relating to epilepsy.

      . The relevant provisions of the Pennsylvania Motor Vehicle Code have been scarcely interpreted. But see Klotz v. Commonwealth, 77 Pa.Commw. 134, 465 A.2d 113 (1983) (discusses the Department of Transportation’s Regulations, 67 Pa.Code §§ 83.1-83.5). See abo McKay v. Commonwealth, 52 Pa.Commw. 24, 415 A.2d 910 (1980).

      . Although the issue discussed therein is not directly on point with the instant case, we find Commonwealth, Dep’t of Transportation v. Tinsley, 128 Pa.Commw. 594, 564 A.2d 286 (1989) to be instructive. In Tinsley, a school bus driver appealed an order of the Department of Transportation revoking her license because she was diabetic. For reasons not pertinent to the instant situation, the Commonwealth Court found that revocation was improper. However, in holding in her favor, the Commonwealth Court advanced the following argument.
      The essential nature of the school bus licensing program is to prevent any and all appreciable risks that would prevent a school bus driver from controlling the students and safely operating the bus. [Citation omitted]. DOT contends that diabetics are an appreciable risk because a deviation from a daily routine of medication could result in an impairment of the bus driver's ability to provide for the safety of the passengers. DOT’s speculation about the possible effects of diabetes is not appropriate. The proper inquiry must be directed to Tinsley herself and the effects of her handicap upon her job performance. [Citation omitted].
      In the case at bar, it is undisputed that Tinsley’s blood sugar level has been under control since shortly after she was diagnosed a diabetic in December 1985. Dr. Diwan testified that Tinsley’s blood sugar level could be accurately tested, by a blood prick test, to determine whether her diabetes is under control. The test can be performed and the results obtained in approximately 30 seconds. We can not agree that accommodation of Tinsley would either alter the essential nature of the program or be an undue burden on DOT. As previously noted, Tinsley’s diabetes has been under control since her release from the hospital. Furthermore, the District has indicated that it would be willing to administer the blood prick test to ensure that Tinsley’s diabetic condition remains under control and to suspend her if her condition is not under control. [____] Although DOT would not have direct daily control over the tests, it does not ordinarily have direct contact with any licensee, e.g. DOT does not check everyday to see if those who are required to wear corrective lenses are wearing them.

        Id., 128 Pa.Commw. at 597-99, 564 A.2d at 288. See also Commonwealth, Dep’t of Transportation v. Chalfant, 129 Pa.Commw. 430, 565 A.2d 1252 (1989).

      . The Supreme Court’s affirmance in DiMarco was still pending at the time this Court decided the Dunkle case. Although DiMarco was actually filed a few days before this Court's decision in Dunkle, we did not, at the time of that writing, have the benefit of the supreme court’s reasoning. However, it is most unlikely that a different result would have been reached in Dunkle due to the factual dissimilarities between the two cases. In fact, the Pennsylvania Supreme Court’s evaluation and ultimate decision in DiMarco far extended the narrow holding that this Court explicitly intended when it decided the case originally. See DiMarco v. Lynch Homes—Chester County, Inc., 384 Pa.Super. 463, 473, 559 A.2d 530, 535 (1989). See id. at n. 3. See DiMarco, 525 Pa. 558, 560-64, 583 A.2d 422, 424-25 (1990).

      . In this action, the Crosbys did not maintain that Jackson suffered from unstable or brittle diabetes. They did not allege that Jackson sustained a syncopal attack or loss of consciousness within six months of his last visit with Dr. Sultz. See 67 Pa.Code § 83.5(2) (1986), supra.

        Also, the Crosbys did not assert that Jackson suffered from a periodic loss of consciousness. See Pa.Code 83.5(4) (1986), supra. The Crosbys simply state that Jackson’s condition was likely to result in a temporary loss of consciousness; however, §§ 83.5(2) and 83.5(4) clearly require that the patient have experienced a prior loss of consciousness rather than a mere possibility that such an event may occur in the future. For these reasons, neither subsection is applicable to this case.
      Moreover, the amended complaint is devoid of indication that Dr. Sultz had any reason to believe, other than the plain fact that Jackson is diabetic, that Jackson would lose consciousness at the wheel of his car. Thus, the Crosbys' statement that Jackson's condition “was likely to cause a temporary loss of consciousness” is a conclusion which lacks factual support. In fact, the Crosbys note no circumstances under which it is probable that a diabetic will lose consciousness.

      . Sections 1517 and 1518 of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. §§ 101-9701, are the controlling statutes. It must be assumed that in directing the Medical Advisory Board to formulate criteria for the licensing of drivers in Pennsylvania, the legislature hoped to achieve a goal of safety on our highways. Under the Statutory Construction Act, this Court is bound to consider the object sought to be attained by the legislature in enacting a particular statute. Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979). Thus, in analyzing the appropriate provisions of the Pennsylvania Code, we will take into account the rules of statutory construction in an attempt to effectuate the intent of the legislature in promulgating the Vehicle Code. See 1 Pa.C.S.A. §§ 1901-1939.

      . See 67 Pa.Code § 83.5(a)(2) (1986).

      . For the sake of clarity and continuity, we again note that it would be an absurd result to hold Dr. Sultz liable for resultant injuries to third parties due to Jackson’s condition. At most, and at best, Dr. Sultz should be made to answer to the Department of Transportation for his failure to report Jackson’s diabetes. Even under this analysis, however, we would be reluctant to impose a duty on the doctor where it is unclear that he had reason to believe that Jackson’s ability to drive was impaired by virtue of his illness.

      . See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

      . Were we to compare this situation to that presented in DiMarco, we would be creating law which in effect would hold a physician strictly liable for his patient's health problems where there is any potential that the patient will become ill behind the wheel of a car and injure an innocent bystander. The doctor’s liability under this scenario would not stop at the patient, but rather would extend to any third party who happened to be in the wrong place at the wrong time. To analogize this case to even a very liberal interpretation of the DiMarco decision is to encourage boundless liability on physicians who, for centuries, have practiced without fear of the types and varieties of repercussions that the Crosbys’ proposed law would yield. At least in DiMarco, the patient was misadvised regarding her ability to transmit a communicable disease. The third party victim, who actually relied on the misadvice to the patient, was permitted to advance a cause of action against the doctor.
      The illness in DiMarco was active and threatening; it was a communicable disease capable of transmission to members of the public if left untreated. The effects of mistreatment became apparent where a proper remedy was not pursued. Here, as far as we can tell after reading the pleadings, there was no immediate health threat to Mr. Jackson, let alone to the public at large. Diabetes is a noncontagious disease. We find the facts here to be much more covert than those in DiMarco and we hesitate to subject that decision to misinterpretation and abuse.