Opinion
41275.
ARGUED APRIL 7, 1965.
DECIDED APRIL 23, 1965. REHEARING DENIED MAY 11, 1965.
Action for damages. Pulaski Superior Court. Before Judge O'Connor.
Robert S. Horne, for plaintiff in error.
Lovejoy Boyer, Martin, Snow, Grant Napier, Cubbedge Snow, contra.
1. The petition of a patron against the owner of a drive-in-theatre, alleging that the plaintiff was injured as a result of the defendant's negligence in providing no walk way from the parking spaces to the snack bar in the theatre except between cars parked so close together that a person passing between them could be struck by a car door, and having posts between them with two wires running from each post attached to speaker boxes that could be placed inside the cars on either side of the post, stated a cause of action.
2. The petition did not show as a matter of law that the plaintiff in walking to the snack bar between a parked car and a post, from which a wire attached to a speaker box ran into the car door, exposed himself to a foreseeable unreasonable risk of harm and was thereby precluded from recovery.
3. The plaintiff was not precluded from recovery because at the time he was injured his purpose in walking to the snack bar was to collect a bingo prize.
ARGUED APRIL 7, 1965 — DECIDED APRIL 23, 1965 — REHEARING DENIED MAY 11, 1965.
In this negligence action the plaintiff assigns error on the judgment of the trial court sustaining the defendant's general demurrer to the petition. The allegations of the petition were substantially as follows: The plaintiff was a patron at the defendant's drive-in theatre and was injured as he walked between parked automobiles to the snack bar on the premises to collect a prize for a bingo game operated by the defendant during an intermission between shows. The theatre was laid out with a horse shoe shaped driveway completely encircling the parking area. Cars entered on the left side of the theatre using this driveway and drove out by this driveway on the right side of the theatre. There were several rows for parking cars to face the picture screen, with a single driveway between each parking row on which cars drove from the left side to the parking spaces and when leaving the parking spaces drove to the right side and out of the theatre. Between each parking place there was a metal post from which ran two wires four or five feet long, with a speaker box on the end of each, so that the speaker boxes could be placed inside the cars on either side of the post to permit the motion picture sound to be heard. There were several parking rows between the picture screen and the snack bar, and several rows behind the snack bar. For patrons parked in the rows between the picture screen and the snack bar the defendant provided a safe walk way to the snack bar, but the defendant did not provide a safe walk way to the snack bar from the parking rows behind the snack bar, where the plaintiff was parked. In this area the parking rows extended all the way across the parking area of the theatre, leaving no walk way to the snack bar except between the parked automobiles. The theatre was so poorly lighted that persons parked in automobiles could not see persons passing between parked automobiles, and persons walking to the snack bar could not see properly how to walk between the automobiles. As the plaintiff raised the wire leading from a post between parked cars to the speaker box placed in one of the cars to pass under the wire, a person seated in the car opened the door and the door struck the plaintiff in his left eye and caused him to be seriously injured. The petition alleges that the defendant was negligent in that it did not provide a walk way from the parked cars to the snack bar that was safe from the danger of being injured by automobiles; did not provide a walk way for customers from the parking area to the snack bar other than between the parked cars; did not have the parking area lighted so that persons in automobiles and persons walking to the snack bar could see each other and see how to walk; did not take any action or instruct patrons to prevent their opening car doors into customers walking to the snack bar; and was negligent in having the parking spaces too close together for the plaintiff to pass between the parked automobiles without being in danger of being struck by automobiles.
1. The defendant argues that the petition does not state a cause of action because there was a passageway where there were no posts and wires between the automobiles where the plaintiff could have safely walked to the snack bar. If this be true, there was no negligence in failure to furnish a safe walk way and what we say hereafter in this opinion will not be controlling. However, this fact is not shown by the allegations of the petition. This decision must be based on the facts as shown by the petition, that from the place where the plaintiff was parked there was no way provided for walking to the snack bar except between cars with a post between them and so close together that the plaintiff in passing between the post and a car could be struck by the car door. This case falls in the class of cases involving negligently constructed premises and the decisions cited by the defendant involving negligent maintenance, McCrory Stores v. Ahern, 65 Ga. App. 334 ( 15 S.E.2d 797), United Theatre Enterprises, Inc. v. Carpenter, 68 Ga. App. 438 ( 23 S.E.2d 189), involving use of premises for a use for which they were not intended, Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 ( 92 S.E.2d 720), and involving negligence toward others than invitees, Blakely v. Johnson, 220 Ga. 572 ( 140 S.E.2d 857), are not controlling of the facts in this case.
Two questions are involved in determining whether the defendant was negligent in arranging the theatre and snack bar as stated in the petition. Did the defendant expose its invitees to a foreseeable risk of harm? If so, was the risk unreasonable? If reasonable men could disagree on both of these questions, the issue of negligence must be left to the jury. Cooper v. Anderson, 96 Ga. App. 800, 809 ( 101 S.E.2d 770), affirmed 214 Ga. 164 ( 104 S.E.2d 90).
In view of the uses for which the defendant invited patrons to the premises, reasonable men could disagree and it is a question of fact whether the risk of a patron walking to the snack bar being struck by a car door, was foreseeable. The next question is more difficult. If the risk was foreseeable, was it an unreasonable risk — was it a risk of such magnitude as to outweigh what the law regards as the utility of the defendant's alleged negligent conduct (not providing a walkaway to the snack bar where this risk would not be present)? American Law Institute, Restatement, Torts 785 et seq., §§ 291-293. This standard is complex but affords an opportunity for reaching substantial justice. The magnitude of a risk involves the social value of the interests imperiled (in this case the plaintiff's interest in bodily safety), the probability of harm to those to whom a duty is owed, and the extent of harm likely to be caused to them by exposure to the risk. Id. 791, § 293. Factors relating to the utility of particular conduct are the social usefulness of the enterprise (in this case the drive-in theatre), the value to the defendant of the particular way of conducting the enterprise (the alleged acts and omissions of negligence), and the extent to which the defendant's interest can be adequately advanced by another and less dangerous course of conduct (such as providing a special walk way to the snack bar). Id., 788, § 292. We again believe that reasonable men could disagree whether, if the risk to the plaintiff was foreseeable, it was reasonable or unreasonable, considering the magnitude of the risk and the utility of the defendant's alleged negligent conduct. Cf. Bryon v. Fresh Pond Open Air Theatre, 333 Mass. 121 ( 128 N.E.2d 785).
2. The question of the plaintiff's negligence is whether he exposed himself to a foreseeable unreasonable risk of harm. American Law Institute, Restatement, Torts 1230, § 466. If he is found to have done so, there remain the questions whether he can recover under the comparative negligence rule, or is barred from recovery by the rule of avoidance of consequences or the rule of voluntarily encountering a known danger. Code § 105-603; Whatley v. Henry, 65 Ga. App. 668, 674 ( 16 S.E.2d 214). The allegations of the petition present a question of fact whether the way the plaintiff walked to the snack bar was apparently safe to a person in the exercise of ordinary care. Atlanta Terminal Co. v. Johnson, 15 Ga. App. 22, 26 ( 82 S.E. 629); Delta Air Lines v. Millirons, 87 Ga. App. 334, 337 ( 73 S.E.2d 598). Ordinarily, and in the present case, the court cannot decide as questions of law the facts upon which the plaintiff could be precluded from recovery. Cooper v. Anderson, 96 Ga. App. 800, 810, supra.
3. The defendant contends that the plaintiff is not entitled to recover because when injured he was participating in a gambling game made a penal offense by Georgia law, Code §§ 26-6404, 26-6502. Generally participation in gambling activities does not prevent recovery in tort for personal injuries in the absence of a causal relation between the illegal act and the injuries sustained. Anno. 77 ALR2d 961. In Hughes v. Atlanta Steel Co., 136 Ga. 511 ( 71 S.E. 728, 36 LRA (NS) 547, AC 1912C 394), the Georgia Supreme Court held that a servant was not precluded from recovering for the negligence of his master because at the time the servant was injured both he and the master were engaged together in the violation of a penal statute prohibiting the pursuit of one's business or work of ordinary calling on the Lord's day, because the plaintiff's violation of law did not contribute to his injury. Accord Allen v. Gornto, 100 Ga. App. 744, 751 ( 112 S.E.2d 368). In the Hughes case (p. 515), the action was "founded on a breach of duty, which the law imposes as an incident to the relation of master and servant. . . A servant who is required to report for work on Sunday, and while working on that day is injured, may not be able to recover for services rendered on the faith of the contract; but he is not for that reason to be physically disabled by a negligent master and denied a recovery for his injury solely because the injury happened while he and the master were working on Sunday." The occurrence could have happened on any other day under similar circumstances. So we can say in the present case, the action was founded on a breach of duty which the law imposes as an incident to the relation of business proprietor and invitee. An invitee who is injured on the premises may not be able to recover for the consideration paid or offered for playing the illegal game. Atkinson Novelty Co. v. Prince Son, 28 Ga. App. 497 ( 111 S.E. 699); Dennis v. Weaver, 103 Ga. App. 824 ( 121 S.E.2d 190). But he is not for that reason denied a recovery for an injury resulting from the proprietor's negligence solely because it happened while he and the proprietor were engaged in the game. The occurrence could have happened under similar circumstances if the plaintiff was walking to the snack bar to buy popcorn or for any other legal purpose. When the participation in an illegal act is merely a condition present at the time of an injury, but not a proximate cause, it does not prevent recovery. In other words, it is not the law that recovery must be denied whenever it can be said that but for the illegal activity the injury would not have happened at this time.
The trial court erred in sustaining the defendant's demurrer to the petition.
Judgment reversed. Bell, P. J., and Frankum, J., concur.