Aaser v. City of Charlotte , 265 N.C. 494 ( 1965 )

144 S.E.2d 610 (1965) 265 N.C. 494

Evelyn A. AASER
v.
The CITY OF CHARLOTTE, the Auditorium-Coliseum Authority and Charlotte Hockey Club, Inc.

No. 275.

Supreme Court of North Carolina.

November 3, 1965.

Boyle, Alexander & Carmichael, Charlotte, for defendant appellants.

Elbert E. Foster and Richard T. Meek, Charlotte, for plaintiff appellee.

LAKE, Justice.

The Coliseum is an arena for the holding of exhibitions and athletic events owned by the city of Charlotte and administered for it by the Authority to produce revenue and for the private advantage of the compact community. A city is engaging in a proprietary function when it operates such an arena, or leases it to the promoter of an athletic event, and when it operates refreshment stands in the corridors of the building for the sale of drinks and other items to the patrons of such an event. Carter v. City of Greensboro, 249 N.C. 328, 106 S.W.2d 564; Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42. Consequently, the liability of the city and of the Authority to the plaintiff for injury, due to an unsafe condition of the premises, is the same as that of a private person or corporation. Carter v. City of Greensboro, supra; Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371; Millar v. Town of Wilson, supra; McQuillin, Municipal Corporations, 3rd ed., § 53.91.

Upon this appeal it is not necessary for us to determine the duty owed to a ticket holder by the owner of an arena who has leased it to the promoter of an athletic exhibition so as to divest the owner of all control over the building. Here, by the terms of the lease, the city, through the Authority, retained a substantial measure of use of and control over the corridors of the Coliseum, even while the lessee was using it for its hockey games. The mere execution of such a lease does not free the city and the Authority from liability to a ticket holder injured in the corridor while in the Coliseum to attend a hockey game. Davis v. City of Atlanta, 84 Ga.App. 572, 66 S.E.2d 188; Johnson v. Zemel, 109 N.J.L. 197, 160 A. 356; 4 Am.Jur.2d, Amusements and Exhibitions, § 63.

One who purchases a ticket and, pursuant thereto, enters such an arena is an invitee of the operator of the exhibition. Williams v. Strickland, 251 N.C. 767, 112 S.E.2d 533; Hahn v. Perkins, 228 N.C. 727, 46 S.E.2d 854; Anderson v. Amusement Co., 213 N.C. 130, 195 S.E. 386; Strong, N. C. Index, Negligence, § 37a. While in a corridor providing access to portions of the building which his ticket entitles him to enter, he is also the invitee of the owner of the building who has retained the right to control the corridors. No appeal having been taken from the judgment of nonsuit as to the Hockey Club, we are not here concerned with the liability of the promoter-lessee to a ticket holder injured in the corridor which the owner has retained the right to use and control. Nor are we concerned here with the right of the ticket holder against the owner of the building for injury received in the portion of the Coliseum in which the hockey game is actually played. The plaintiff was injured in a corridor where she had a right to be as the holder of a ticket to the hockey game. The city and the Authority had the right to control the corridor. As to her use of and injury in this corridor, the relation of the plaintiff to them and their duty to her are the same as if the city were a private corporation both owning the building and promoting the hockey game therein.

One who, expressly or by implication, invites others to come upon his premises to view, for a price, an athletic event being carried on therein has the duty to be reasonably sure that he is not inviting them into danger and must exercise reasonable care for their safety. Dockery v. World of Mirth Shows, 264 N.C. 406, 142 S.E.2d 29. He is not an insurer of their safety and is liable only for injuries proximately caused by his failure to use reasonable care to discover and remove, or otherwise protect against, dangerous conditions, activities or occurrences upon his premises. Dockery v. World of Mirth Shows, supra; Lynn v. Wheeler, 260 N.C. 658, 133 S.E.2d 514; Williams v. Strickland, supra. See also: Revis v. Orr, 234 N.C. 158, 66 S.E.2d 652, 28 A.L.R. 2d 609 (dance hall); Anderson v. Amusement Co., supra (theatre).

Since what constitutes reasonable care varies with the circumstances, the vigilance required of the owner of the arena in discovering a peril to the invitee and the precautions which he must take to guard against injury therefrom will vary with the nature of the exhibition, the portion of the building involved, the probability of injury and the degree of injury reasonably foreseeable. The law does not require the owner to take steps for the safety of his invitees such as will unreasonably impair the attractiveness of his establishment for its customary patrons. Thus, a dance hall need not be brightly lighted (Revis v. Orr, supra) and the bleachers bordering the more remote areas of a baseball field need not be screened against batted balls. Those who attend athletic contests and similar amusements or exhibitions must anticipate that they will be conducted in the usual manner and surroundings. Thus, the owner of an arena has been held not liable for injury resulting from the normal jostling of a crowd at a hockey game. Klish v. Alaskan Amusement Co., 153 Kan. 93, 109 P.2d 75.

The duty of the owner extends to the physical condition of the premises, themselves, and to contemplated and foreseeable activities thereon by the owner and his employees, the contestants and the spectators. The amount of care required varies, but the basis of liability for injury to the invitee from any of these sources is the same—the failure of the owner to use reasonable care under the circumstances.

"[I]t is only when the dangerous condition or instrumentality is known to the occupant [owner], or in the exercise of due care should have been known to him * * * that a recovery may be permitted." Revis v. Orr, supra. In the place of amusement or exhibition, just as in the store, when the dangerous condition or activity is created or engaged in by the owner or his employee, the owner is charged with immediate knowledge of its existence, but where it arises from the act of third persons, whether themselves invitees or not, the owner is not liable for injury resulting unless he knew of its existence or it had existed long enough for him to have discovered it by the exercise of due diligence and to have removed or warned against it. Norris v. Belk's Department Store, 259 N.C. 350, 130 S.E.2d 537. Hughes v. Anchor Enterprises, 245 N.C. 131, 95 S.E.2d 577, 63 A.L.R. 2d 685.

"The proprietor is liable for injuries resulting from the horseplay or boisterousness of others, regardless of whether such conduct is negligent or malicious, if he had sufficient notice to enable him to stop the activity. But in the absence of a showing of timely knowledge of the situation on his part, there is no liability." 4 Am.Jur.2d, Amusements and Exhibitions, § 59. Thus, in Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72, the promoter of a wrestling match, not so shown to have been negligent, was held not liable for injury to a lady patron struck by a whiskey bottle suddenly thrown by another patron. On the other hand, in Hughes v. St. Louis National League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R. 2d 904, the owner of a baseball park was held liable for injury to a lady patron, injured, when leaving the park after a game, by the horseplay of a group of boys whom the owner encouraged to gather at that point in the hope of being employed by the owner to go through the stands and pick up seat cushions after the crowd left and who habitually engaged in rowdy play while so waiting. See also: Hawkins v. Maine & New Hampshire Theatres Co., 132 Me. 1, 164 A. 628; Rawson v. Massachusetts Operating Co., 328 Mass. 558, 105 N.E.2d 220, 29 A.L.R. 2d 907; Anno: 16 A.L.R. 2d 912, 932; Restatement, Torts, § 348 (1934); Prosser, Law of Torts, 3rd ed. (1964), 405.

The burden rests upon the plaintiff to prove that the city, or the Authority, had knowledge of the fact that the group of boys who injured her was, or probably would be, playing in a dangerous manner in the corridors of the Coliseum, or would have so known had it exercised due care in observing conditions in the corridors on this evening or other occasions. On a motion for judgment of nonsuit her evidence must be taken to be true and considered in the light most favorable to her and all reasonable inferences therefrom which are favorable to her must be drawn. Jones v. Horton, 264 N.C. 549, 142 S.E.2d 351; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579.

When so considered, the evidence does not justify such a finding. An inference may reasonably be drawn from the plaintiff's testimony that the hockey puck which struck her was driven along the corridor and against her ankle as the result of its being struck with a hockey stick by one of the boys whom she thereafter observed running in the corridor. Such activity by a group of boys in the corridor made it an unsafe place for use as a corridor by the plaintiff and other invitees of the city and the Authority, but there is no showing of any knowledge of this condition in the corridor by the city or the Authority or that either could have discovered it by the exercise of reasonable care in inspecting the corridors. The plaintiff had passed along this very corridor five minutes earlier and had not observed the boys. Subsequently, she walked from the door of the hospitality room to the point where she was struck without noticing their play. There is nothing to show that anyone saw these boys or any others playing in the corridor with hockey sticks and pucks or in any other dangerous manner on this evening before the plaintiff was struck.

The plaintiff did testify that Mr. Gilland told her, when she informed him of her injury, that "they had been playing in the hallways before with hockey sticks and pucks." This was admitted in evidence over objection by the city and the Authority. It is not necessary to pass upon the validity of these objections, for even though incompetent, this evidence was admitted and must be considered as if competent for the purpose of the motion for judgment of nonsuit. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316. It must, for this purpose, be taken as true notwithstanding the testimony by Mr. Gilland, called as a witness by the plaintiff, that he had never seen or been told of children playing with these things in the vicinity of the hospitality room. Conflicts in evidence offered by the plaintiff must be resolved in her favor for the purposes of this motion. Coleman v. Colonial Stores, 259 N. C. 241, 130 S.E.2d 338. Nevertheless, this shows nothing as to when or how long such activities were observed. There is nothing to show that the city and the Authority did not on such occasion, whenever it was, move promptly and effectively to stop the dangerous activity. There is nothing to show that this same group of boys was involved in the former play or that the city or the Authority had any reason to suppose it would recur.

The testimony that on unspecified occasions some boys had been observed kicking papers cups about in a corridor of the Coliseum does not justify an inference that such activity was either dangerous or recurring or known to the city or the Authority.

The evidence offered by the plaintiff is, therefore, not sufficient to justify a finding that a condition precedent to her right to recover from the city or the Authority existed. Therefore, the motions of the city and the Authority for judgment of nonsuit should have been granted.

Reversed.