Cornelius Biaggi, Agnes Biaggi v. Giant Food Shopping Center

BASTIAN, Circuit Judge.

This appeal arises from the grant by the District Court of appellee’s motion made at pre-trial to dismiss for failure to state a cause of action. This action was filed to recover damages for injuries alleged to have been sustained when a carton of tissue fell upon the male appellant while he was working in appellee’s store. The facts as disclosed at pre-trial were as follows:

The male appellant (hereinafter referred to as appellant) was employed by a painting contractor who was engaged to paint a store operated by appellee. The painting was done at night after the store…