Hammonds v. Jackson , 132 Ga. App. 528 ( 1974 )

Eberhardt, Presiding Judge.

This is a slip and fall case, the fall occurring on the floor of a dance hall by one of its customers while engaged in dancing and resulting in injury to her ankle. She brought suit against the owner and the operator of the dance hall, known as the Egyptian Ballroom in the Fox Theatre building, alleging that while engaged in dancing she had hit an unusually slick spot on the waxed floor and slipped and fell.

Plaintiffs deposition was taken and she testified that she had danced "all over the floor” before hitting the spot that caused her fall. From 150 to 200 patrons were in attendance and all were generally dancing. The admission charge had been two dollars. Beer is sold at the place and some was purchased by members of plaintiffs party of six. It is what is known as a "brown bag” place where patrons are allowed to bring in bottles of whiskey and buy setups of ginger ale, etc. for mixing their own drinks. Plaintiffs party did have one or two bottles of whiskey and prior to the time she fell plaintiff had had two mixed drinks and prior to coming drank a beer, but that she was not "under the influence.”

Mrs. Bernice Norris, a member of plaintiffs party at the dance, testified by deposition that all had had some drinks, that plaintiff fell while she and her partner were dancing a sort of fast dance on the floor, that there were something like 200 people present and no one else fell. She did not actually see plaintiff fall, but saw her very shortly afterward when she was brought to the table which the party was using, and then carried to the hospital. She danced, but knew nothing of any unusually slick spots on the floor, and saw no foreign substances on it. The floor was waxed, and had been each time she had been there for dancing.

Mrs. G. A. Jackson, operator of the establishment, testified by affidavit that she was personally present on the occasion when Mrs. Hammonds fell, that she went immediately to the place where she fell and looked to see whether anything was present on the floor that could have caused it, and saw nothing. There was no rubbish or trash on the floor, "nor did I observe any unusual slick spots on the floor.” She personally supervised the cleaning of the floor each week, and there had been no build-ups of wax or slick spots on it. The floor was waxed only twice each year, once in January and once in June when it is done by application of shaved paraffin, and at the time Mrs. Hammonds was injured on September 16, 1972 there had been no application of the paraffin or other waxing material since the previous June. She had been operating the place for ten years, and in all that time no liquid wax of any kind had ever been used. Mrs. Hammonds was the only person in that time who had ever been injured on the floor. No one else fell at anytime during the evening when Mrs. Hammonds was injured.

Defendants moved for summary judgment and tendered this evidence in support of it. The motion was sustained and plaintiff appeals. Held:

1. A careful search of the cases decided by the appellate courts of this state reveals, so far as we have found, that dance halls have been involved in slip and fall litigation on appeal only four times. The first was Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 SE 415), which was decided on the basis of a defect in construction, i. e., a difference in floor level together with a keeping of the place very dimly lit. It had nothing to do with the condition of the dance floor; and plaintiff did not fall on the floor but when stepping off of it. The second was Sheraton Whitehall Corp. v. McConnell, 88 Ga. App. 725 (77 SE2d 752), which again alleged a sloping board at the edge of the floor, which itself was polished, and on which plaintiff stepped and fell. This case did not deal with the condition of the dance floor itself. Robinson’s Tropical Gardens, Inc. v. Sawyer, 105 Ga. App. 468 (125 SE2d 131) found a jury issue relative to the condition of a corridor in which plaintiff had fallen adjacent to the dance floor. In Ward v. Veterans of Foreign Wars, 109 Ga. App. 563 (136 SE2d 481) the fall resulted from some liquid which had been spilled on the dance floor and allowed to remain. In none of them did the fall occur on the dance floor itself, as here, without the presence of some foreign substance to cause it, and none dealt with the problem of an alleged "slick spot” on the floor which the plaintiff concludes resulted from waxing.

Our examination of authorities generally on this subject reveals that "courts have recognized as applicable to actions by patrons against dance hall proprietors or operators for injuries resulting from the condition of the premises the view (1) that an owner or occupier of premises is not the insurer of the safety of his invitees, but rather is liable only for his failure to exercise reasonable care to avoid reasonably foreseeable danger to his invitees by keeping the premises in a reasonably safe condition for use in a manner consistent with the purposes of the premises, or by warning of hidden dangers or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision; (2) that inasmuch as the basis of his liability is his superior knowledge of an unreasonable risk of harm which the patron either does not or, in the exercise of ordinary care, should not know, the owner or occupier is not liable for injuries resulting from a condition which is readily observable and which should have been seen and appreciated by the invitee before he exposed himself to it, and in such circumstances there is no duty to warn, because the invitee has the information which would be conveyed by a warning; and (3) that where injuries result from an extraneous object or substance on a floor, it must be shown either that the owner or occupier, or his employees, placed the extraneous substance there or, if the substance was placed by someone else, that the owner or occupier, or his employees, had actual knowledge of the presence of the substance, or that it had remained in a position of danger for such a length of time that the owner or occupier, or his employees, should have had knowledge of the substance and removed it or given proper warning of its presence.” Anno. 38 ALR3d 419, 422, § 2.

Negligence cannot be predicated on the slipperiness of a dance floor alone, for wax and like substances are applied to make it slippery and thus the better for dancing. It is a preparation for dance floors generally made everywhere they are found and used. Nolan v. North Hills Golf Club, 21 App. Div. 2d 695 (250 NYS2d 471). In order to recover the injured patron must show the use of improper materials or the negligent application of the material used. Patrons are usually held to accept the risk of dancing on a floor which they know has been prepared for dancing by the application of wax or some like substance. Durden v. Dranetz (Fla. App.), 99 S. 2d 716; Fishman v. Brooklyn Jewish Center, 234 App. Div. 319 (255 NYS 124).

Although it appears that the lights were dimmed during the dancing, this is a practice of dance halls everywhere. People go to places where stimulating music is played and the lights are low for dancing. Plaintiff knew of this, as did all others engaged in dancing. It has been held that one who voluntarily goes into a dimly lighted area assumes the risk of injury which may result because of it. Mattox v. Atlanta Enterprises, 91 Ga. App. 847 (87 SE2d 432); Hendricks v. Jones, 28 Ga. App. 335 (111 SE 81); Flournoy v. American Hat Mfg. Co., 21 Ga. App. 599 (94 SE 835); Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 (103 SE 433); Avary v. Anderson, 31 Ga. App. 402, 404 (120 SE 683); Frierson v. Mutual Realty Co., 48 Ga. App. 839 (174 SE 144). This applies particularly to the situation when one goes to a dimly lighted dance hall for dancing, where he knows both of the lighting condition and the polished floor.

The standard of care imposed by Code § 105-401 upon the owner or occupier of premises is that of ordinary care to keep the premises safe. The Supreme Court has held that in this context the duty is measured by what the prudent man would do under the circumstances, and that whether in terms of "reasonable care,” or "ordinary care,” in keeping the premises "safe” or "reasonably safe” it is the same. See Smith v. Ammons, 228 Ga. 855 (188 SE2d 866). The owner or occupier is not an insurer of the safety of his customers, guests or invitees.

"It would impose too great a duty upon the proprietor . . . and would make him the insurer of the safety of all patrons, which he is not, to require him at all times to have immediate knowledge of and to remove every article on which a patron might stumble and fall when the article is placed there, not by the defendant or its employees, but by other patrons.” Jones v. West End Theatre Co., 94 Ga. App. 299, 303 (94 SE2d 135). See also Holloman v. Henry Grady Hotel Co., 42 Ga. App. 347 (156 SE 275); Scott v. Rich’s, Inc., 47 Ga. App. 548 (171 SE 201); Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 SE2d 680).

2. Plaintiff herself alleges nothing more than a "slick spot” on the dance floor. She makes charge of no foreign substance on the floor and testifies that she saw none. Her testimony was "this one spot was — must have been mighty slippery, heavy wax or something. I don’t know, but it sure tripped me.” This statement is a mere conclusion, and is without probative value, even in summary judgment proceedings — Stubbs v. State Farm Mut. Auto. Ins. Co., 120 Ga. App. 750, 756 (172 SE2d 441). And later she explained that "Bill Robey told me that he told them that the floor was extra slippery there in one spot and he had told them before about that one place ... I don’t know who he told it to . . . only thing I know, the floor was extra slippery with wax in that one spot. And I had danced all over that floor. As far as I know I didn’t come in contact with a foreign substance, unless it was wax.” This double hearsay could not be held to be notice of the slippery spot to the management. She also stated that at the time she was dancing with a partner, that they were back to back doing a sort of fast dance "like the teenagers do” when suddenly she slipped, lost her balance and went down to the floor. Her partner had tried to catch her but could not. She fell on her ankle and it "popped.”

The defendant, Mrs. Jackson, pierced the pleadings when she testified that the floors are waxed with shaved paraffin twice each year — in January and June — that no wax or paraffin had been applied to this floor since June when the injury occurred in September and that there had been no build-up of wax anywhere on the floor, that it was regularly cleaned each week in preparation of the weekend dances, that the floor was prepared for dancing and that on this occasion some 200 people were so using it, none of whom fell save Mrs. Hammonds.

No negligence appears on the part of the defendants, and the grant of summary judgment was proper. Food Fair v. Mock, 129 Ga. App. 421 (199 SE2d 820); Emory University v. Williams, 127 Ga. App. 881 (195 SE2d 464); Angel v. Varsity, Inc., 113 Ga. App. 507 (148 SE2d 451); Scott v. Gulf Oil Corp., 116 Ga. App. 391 (157 SE2d 526); W. T. Grant Co. v. Phillips, 116 Ga. App. 650 (158 SE2d 312). While summary judgment is generally inappropriate for negligence actions because a genuine issue of fact remains, yet if from all that is presented it appears that there was an absence of negligence on the part of the defendant it is appropriate. Parson v. Central of Georgia Railway Co., 129 Ga. App. 218 (199 SE2d 396); Teppenpaw v. Blaylock, 126 Ga. App. 576 (191 SE2d 466). That is the situation here.

Argued April 5, 1974 Decided July 12, 1974 Rehearing denied July 31, 1974 Drew & Jones, Don M. Jones, Richard J. Azar, Jr., for appellant. Walter O. Allanson, Albert A. Roberts, for appellee.

Judgment affirmed.

Bell, C. J., Quillian, Clark, Stolz and Webb, JJ, concur. Pannell, P. J., concurs specially. Deen, J., concurs in the judgment. Evans, J., dissents.