## Facts

- Betty Jean Pingatore visited a Montgomery Ward department store in a Detroit shopping center and used a rear breezeway entrance.
- After shopping, she exited through the breezeway and, while stepping aside for others, a rat dropped or leaped from the breezeway roof, became entangled in her clothing, and bit her knee.
- She obtained medical treatment and reported the incident to police; she and her husband later reported it to store personnel and identified the location.
- Evidence included municipal inspection observations and testimony describing debris and unsanitary conditions in the rear/breezeway area consistent with rodent activity.
- Plaintiffs claimed serious injury to Mrs. Pingatore and derivative damages to her husband, Daniel Pingatore.
- At trial, plaintiffs’ counsel made a highly theatrical closing argument, including profanity directed at the corporate defendant, use of an empty-chair demonstration, and destruction/denunciation of defense materials as “lies.”
- The jury found Montgomery Ward liable and awarded $126,000 to Mrs. Pingatore and $25,000 to Mr. Pingatore; the jury found in favor of F. W. Woolworth, another shopping-center tenant added as a defendant.
- Montgomery Ward’s cross-claim against Woolworth for indemnity or contribution was dismissed.

## Issues

1. Whether the trial court abused its discretion by denying a new trial based on plaintiffs’ counsel’s allegedly improper and prejudicial closing argument.
2. Whether the evidence was sufficient to support findings that Montgomery Ward breached its duty of reasonable care to a business invitee and proximately caused the rat-bite injury.
3. Whether the dismissal of Montgomery Ward’s cross-claim for indemnity or contribution against Woolworth was error given the evidence regarding control and maintenance of the area.

## Decision

- The Sixth Circuit affirmed the judgment against Montgomery Ward and the damages award to both plaintiffs.
- The court affirmed the judgment for Woolworth on plaintiffs’ claims.
- The court affirmed dismissal of Montgomery Ward’s cross-claim against Woolworth.
- Although aspects of plaintiffs’ closing argument were improper, the trial judge’s management of the argument and instructions to the jury did not constitute an abuse of discretion, and the record did not show a verdict driven by passion or prejudice.
- The evidence permitted the jury to find Ward had sufficient control (or shared control) over the breezeway/approaches, had actual or constructive notice of conditions conducive to rats, and failed to exercise reasonable care to prevent the harm.
- Because the jury could find Woolworth not negligent and not responsible for the condition, Ward lacked a basis for indemnity or contribution.

## Legal Principles

- A business owes invitees a duty of reasonable care to maintain premises and customer approaches under its control (or joint control) in a reasonably safe condition, including reasonable measures to discover and address dangerous conditions such as rodent infestation when the risk is foreseeable.
- A new trial based on improper closing argument is warranted only when misconduct is so prejudicial that it likely caused a miscarriage of justice; trial courts have broad discretion to control argument and assess prejudice, and curative instructions are relevant to that determination.
- Indemnity or contribution between co-defendants generally requires a predicate basis for shared or derivative liability; where the trier of fact reasonably finds one defendant not negligent and not responsible for the condition, a cross-claim for indemnity or contribution fails.

## Conclusion

The Sixth Circuit upheld a jury verdict holding Montgomery Ward liable for an invitee’s rat-bite injury because the evidence supported negligence and causation in an area the jury could find within Ward’s control, and it declined to order a new trial despite improper closing-argument tactics where the trial court did not abuse its discretion and the verdict was supported by the record; Woolworth was properly exonerated and Ward’s cross-claim was properly dismissed.


Pingatore v. Montgomery Ward & Co., 419 F.2d 1138 (6th Cir. 1969)