Summary
In Lam Amusement Co. v. Waddell, 105 Ga. App. 1, 3 (123 S.E.2d 310), this court applied the principle that a business invitee may reasonably assume that the furnishings upon business premises, when they present no obvious hazard, are safe for the use for which they apparently were intended; and ordinary care requires a business proprietor, who has the opportunity to discover the condition of furnishings he places on the premises, to ascertain that they are safe for use under the conditions contemplated.
Summary of this case from Peaster v. William Sikes Post No. 4825Opinion
39223.
DECIDED NOVEMBER 30, 1961.
Action for damages. Floyd Superior Court. Before Judge Hicks.
Matthews, Maddox, Walton Smith, Oscar M. Smith, for plaintiff in error.
E. J. Clower, contra.
1. A petition alleging that the defendant, when there was snow and ice on the streets, placed on the tile and terrazzo floor of its theatre entrance, for patrons to walk on, a rug 2 to 3 feet wide and several feet long which would slip and slide when walked on, and which when plaintiff stepped on it did slip and cause plaintiff to fall and be injured, states a cause of action.
2, 3. A pleader may not be required by special demurrer to make additional allegations, the omission of which will not handicap the adverse party in understanding the nature of or in defending the claim against him.
4. In a negligence action, when it is alleged that the defendant created a condition on its premises dangerous to invitees, it is not necessary to allege other facts to show actual or constructive knowledge of the condition.
DECIDED NOVEMBER 30, 1961.
The plaintiff (defendant in error) sued the defendant (plaintiff in error) for personal injuries he received when he fell on entering a theatre owned and operated by the defendant, alleging as follows: In the early part of March prior to March 10, while there was ice and snow on the streets following a storm, the defendant placed "immediately behind its box office a fabric rug or runner some 24 to 30 inches wide and several feet long, upon the tile and terrazzo floor . . . for the purpose of customers and patrons . . . walking thereon. . ." On March 10 the plaintiff, when entering the theatre to see a picture, stepped on the rug; "the same slipped, glided, and slid in a backward manner toward the box office, throwing plaintiff off balance and causing him to fall" and be injured. The defendant (a) was negligent per se "in failing to exercise ordinary care in keeping [its] premises and approaches safe, in violation of Section 105-401 of the Georgia Code Annotated"; (b) was negligent "in failing to provide a rug or runner upon which customers and patrons . . . could safely walk in approaching the entrance"; (c) "in providing a rug . . . which was unsafe, in that it would slip and slide when stepped upon"; (d) "in failing to provide a rug or runner with a rubberized base, or in failing to attach said rug or runner to the floor in such a manner that it would not slip or slide when walked upon." (e) The defendant in the exercise of ordinary care could and should have discovered the condition of the rug and taken the necessary means to render it safe for patrons. The defendant filed general and special demurrers to the petition, which the trial court overruled. The defendant assigns error.
1. In search of authority that the present petition does or does not set forth a cause of action, we have examined many cases in Georgia and in other jurisdictions. Every case examined, including Gibbons v. Harris Amusement Co., 109 Pa. Super. 484 ( 167 A 250), cited by the defendant, has facts different in some way from those alleged here. This court must reach its decision, therefore, upon precedents containing similar facts and upon general principles respecting the rights and duties of the parties.
The petition alleges and contends that the defendant placed on the tile and terrazzo floor in the entrance of its premises, for the purpose of being walked over by its patrons, while there was ice and snow on the streets, a rug, unattached to the floor, that would slip and slide when walked upon, and that was thus unsafe for the purpose intended; and that the defendant thereby failed in its duty of ordinary care to make its premises safe for its invitees.
The question is whether a proprietor of a business, in installing a floor covering over which it invites its patrons to walk, has the duty to ascertain that the floor covering is of such character and is installed in such a way that it will, within reasonable anticipation under all the circumstances, be secure and safe for the use of invitees exercising reasonable care for their own safety. We think that a person entering, in a normally observant manner, a theatre or other business where there is a rug, that presents no obvious hazard, over an area where patrons would normally walk, may reasonably assume that the rug is safe to walk over and will not slip and slide. In using the rug as intended by the proprietor, the patron does not have the opportunity to discover defects that are not obvious. It follows, therefore, that ordinary care requires a proprietor, who has the opportunity when installing a floor covering for patrons to walk over, to ascertain that it is of such materials and is installed in such manner as to be safe for use under the conditions contemplated.
Here the petition alleges the existence of a condition created by the defendant on its premises which a jury would be authorized to find would cause a prudent person reasonably to anticipate would be dangerous to invitees. This is not such a plain and indisputable case that the court must determine this question as a matter of law. Wicker v. Roberts, 91 Ga. App. 490, 492 ( 86 S.E.2d 350). It presents an issue that must be decided by the jury, whether the defendant was negligent "according to what should reasonably have been anticipated, in the exercise of ordinary care, as likely to happen." McCrory Stores v. Ahern, 65 Ga. App. 334, 336 ( 15 S.E.2d 797). Accord, Texas Consolidated Theatres, Inc. v. Pittman, 93 F.2d 21 (5th Cir.); Sharpless v. Pantages, 178 Cal. 122 ( 172 P. 384); Murphy v. Fidelity Nat. Bank, 226 Mo. App. 1181 ( 49 S.W.2d 668).
The defendant relies on McCrory Stores v. Ahern, supra. The decision in that case, that the petition did not allege a cause of action, was based on the court's construction of the petition as alleging negligent maintenance of the premises (rather than negligent construction) and only constructive notice of the allegedly dangerous condition that caused plaintiff's injury, with no allegations showing that the defendant in the exercise of ordinary care should have discovered the defect. The present petition alleges actual knowledge of a dangerous condition of the premises, by virtue of the alleged fact that a rug that would slip and slide when stepped upon was placed on the terrazzo floor by the defendant itself. Furthermore the petition as a whole shows also "a relationship or set of circumstances which imposes upon the defendant a duty to anticipate or to know of the thing in question." Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97 ( 64 S.E. 302).
The defendant's general demurrer and special demurrers numbers 3, 4, 5 and 8 were properly overruled.
2. Special demurrer number 2 contends that plaintiff's allegations describing the occurrence when the rug slipped are defective in failing to show what caused the rug to slip and the distance the rug slipped. Special demurrer number 6 contends that plaintiff's allegation of negligence (c) is an unsupported conclusion, there being no allegation showing what caused the rug to slip and slide. According to the petition, the plaintiff's stepping on the rug was sufficient to cause it to slip. As the omission pointed out by these demurrers would not seem to handicap the defendant in understanding the exact nature of the claim made against it or in preparing its defense, the demurrers were properly overruled. Georgia-Alabama Coca-Cola Bottling Co. v. White, 55 Ga. App. 706, 712 ( 191 S.E. 265); Georgia, S. F. Ry. Co. v. Williamson, 84 Ga. App. 167, 175 ( 65 S.E.2d 444).
3. Special demurrer number 7 contends that plaintiff's allegations of negligence (d) are conclusions unsupported by allegations showing that a rug with a rubberized base would not have slipped, or showing that the failure to attach the rug to the surface of the floor was negligence. The petition alleges the use for which and the circumstances in which the defendant provided the rug. Allegation (d) raises the issue for the jury to determine, whether in these circumstances the omissions specified were negligence. To require elaboration of these specifications would seem to call for pleading evidence, which the law does not require. Georgia-Alabama Coca-Cola Bottling Co. v. White, 55 Ga. App. 706, 712, supra. "Minute particularity in averments of negligence" is not required. Cook v. Kroger Baking c. Co., 65 Ga. App. 141 ( 15 S.E.2d 531); Southern Ry. Co. v. Lunsford, 50 Ga. App. 829, 833 ( 179 S.E. 571).
4. Special demurrer number 9 contends that the plaintiff's allegation (e) above is a factually unsupported conclusion, in that the petition does not show how long the alleged condition had existed and that it could have been discovered by ordinary care in the inspection of the premises. It is alleged that the defendant provided a rug that would slip and slide when stepped upon, under conditions that placed upon the defendant the duty to anticipate and guard against injury from such a rug. Allegations showing that the defendant could have discovered what he already knew or had the duty to know are not required. Pacetti v. Central of Georgia Ry. Co., 6 Ga. App. 97, supra; Riehl v. West Farms Fremont Corp., 289 NYS 795.
The trial court did not err in overruling the defendant's general and special demurrers.
Judgment affirmed. Felton, C. J., and Bell, J., concur.