Summary
In Armburst v. Cox Broadcasting Corp., 117 Ga. App. 381, supra, the other case arising out of the identical parade, our court dealt with a plaintiff who was on the sidewalk regularly and normally used by pedestrians when this same structure collapsed.
Summary of this case from Rutledge v. City of AtlantaOpinion
43451.
ARGUED FEBRUARY 7, 1968.
DECIDED MARCH 8, 1968.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Grady E. Rozar, for appellant.
Troutman, Sams, Schroder Lockerman, T. M. Smith, Jr., James E. Joiner, for appellee.
A corporation legally sponsoring a parade on public streets along a route specified in a municipal permit is not liable for injury to a spectator watching the parade because other spectators, climbing on scaffolding placed for construction purposes around a private building, caused some plywood sheathing to fall on the plaintiff and injure him, where the defendant itself committed no negligent act, was not in control of the building or construction around it, and had no actual knowledge of the alleged defective and unsafe construction of the scaffolding.
ARGUED FEBRUARY 7, 1968 — DECIDED MARCH 8, 1968.
The plaintiff, a 9-year-old child suing by next friend, seeks to recover damages for personal injuries, naming as joint tortfeasors Mion Construction Company, Inc., Atlanta Federal Savings Loan Assn., the City of Atlanta, and the appellee Cox Broadcasting Corp., and assigning error on the trial court's judgment dismissing the latter as a party defendant on the ground that the petition failed to state a claim upon which relief could be granted. The allegations are as follows: Cox Broadcasting Corp. applied for and obtained from the City of Atlanta a permit for a Fourth of July parade, and gave wide advertising publicity to the event. It erected a reviewing stand at Five Points in the downtown area on which were seated, among others, a number of television celebrities, and arranged for the parade to pass south on Peachtree Street, turning west on Marietta past the reviewing stand. Meanwhile, the Atlanta Federal Savings Loan Assn. had for some weeks been in the process of having its building front renovated by the Mion Construction Co., Inc., and a building permit had been obtained from the city for this purpose. Mion erected a sidewalk cover along the front of the building by laying flat sheets of plywood over a tubular steel framework. It is alleged that this "wood walkway" was inherently dangerous because it had no lateral supports, the plywood was not attached to the structure, and on the application of weight the structure would sag and the plywood slip off. Ladder steps afforded access to the wood walkway which was located 100 feet from the reviewing stand. The structure was not enclosed, barricaded, roped off, guarded or posted against use. Several small boys mounted it better to view the parade; the weight caused the supports to buckle, and a sheet of plywood slid off, striking and injuring the plaintiff, who was one of several thousand spectators reviewing in front of the scaffolding. Negligence is charged against appellee Cox in failing to have the parade permit changed and the parade rerouted away from the unsafe scaffolding; in failing to anticipate the "dangerous condition of the street, sidewalk and scaffold-like structure and the consequences arising therefrom," failing to rope off or barricade the area immediately adjacent; failing to anticipate that children would climb to the top of the structure and thereby create a dangerous condition; failing to warn the plaintiff of the danger, and failing to post guards to prevent plaintiff and others from getting near it.
All the specifications of negligence against Cox relate in one way or another to the question of whether the negligence which actually caused the plaintiff's injury was within that defendant's range of foreseeability. Cox was within the terms of the permit granted it in routing the parade as it did, in erecting the reviewing stand, and in advertising the event and thereby causing a crowd to gather in the immediate vicinity. Whether one who causes a crowd or group of people to foregather for some purpose such as a parade is liable for an injury suffered by one spectator at the hands of another depends on the circumstances, and becomes a jury question where the minds of reasonable men differ as to whether the defendant was negligent in maintaining the premises, in controlling the crowd after notice of potential danger, or in failing to exercise ordinary care to anticipate and guard against injury the proximate cause of which is within its control. Cf. 38 ALR 1531, "Liability of one whose acts cause collection of, or disorder in, crowd for injuries incident thereto." On the other hand, one who legally uses city streets for parade purposes is not an insurer of the safety of the spectators. In Macon Telegraph Pub. Co. v. Graden, 79 Ga. App. 230 ( 53 S.E.2d 371) a jury question was posed where the defendant caused a crowd to collect to watch a "soap box derby" conducted under its auspices; negligence there charged was that the defendant allowed inexperienced children to race flimsy home-made cars without taking precautions to protect persons lining the street, so that one of the cars got out of control and struck a bystander. There the question of foreseeability arose as to a potentially dangerous instrumentality within the control of the defendant, although the injury was not inflicted on premises belonging to the defendant. But where the injury "did not flow naturally and directly from the wrongful acts or omissions attributed to the defendants or could not reasonably have been expected to result therefrom or would not have resulted therefrom but for the interposition of some independent unforeseen cause, such antecedent wrongful acts or omissions of the defendants would not be the proximate cause of the injury." Davis v. City of Toccoa, 93 Ga. App. 155 (1) ( 91 S.E.2d 89). The defendant Cox was not negligent in organizing the parade. The construction going on around the bank building was not under its control. There was nothing to put it on notice of the actual insecurity of the scaffolding, even assuming that it might have foreseen that persons who wanted to watch the parade might trespass on that area. Without such actual knowledge, it had no duty to anticipate that children would climb the scaffolding and cause the unsecured wood sheathing to fall on those standing below, even though it might naturally have anticipated that people would be congregated there. Accordingly, no jury question is presented as to this defendant.
Judgment affirmed. Jordan, P. J., and Pannell, J., concur.