Swope v. Farrar

1. This was an action for damages alleged to have been received in the defendant's skating rink as a result of the misconduct of a third person in using said rink at the time plaintiff was using same as an invitee. Under the facts alleged, it was a question for the jury whether or not the efforts of the defendant's employees with reference to the alleged misconduct of such third person, after notice thereof, constituted ordinary care.

2. The judge erred in sustaining the demurrer and in dismissing the action.

DECIDED OCTOBER 15, 1941. This suit was for damages from personal injuries alleged to have been sustained by John Swope due to the negligence of Mrs. Minette Dixon Farrar, the owner and operator of a skating-rink. The plaintiff alleged that he sustained injuries at said skating-rink while skating therein as an invitee. The judge dismissed the action on general demurrer, and the plaintiff excepted.

The petition alleged that the defendant charged an admission fee of twenty-five cents. The patrons were entitled to skate in said rink, and were furnished skates by the defendant. The defendant also provided various servants, agents, and employees to assist the patrons in putting on and removing the skates, and to assist the patrons in enjoying the recreation afforded, and to keep order and protect less-proficient skaters from injury. It was alleged that it was the duty of the defendant to protect customers using the rink at defendant's invitation from injury, not only from misconduct of defendant's employees, but also from other patrons and customers. The plaintiff further alleged that he paid said admission fee and was using the rink at the invitation of the defendant and received certain injuries under the following circumstances: He was skating on roller skates and enjoying the pleasures incidental to roller skating. There were other individuals or patrons likewise skating, together with the defendant's employees who were present for the purpose of keeping order and being of such assistance as was necessary to the orderly operation of the rink. There was a certain individual whose name was unknown to plaintiff who was a very proficient roller skater, who moved with great speed and alacrity and was skating around the rink exceptionally fast. He would skate on one skate and then on the other, and was able to cut circles, skate backwards, and otherwise perform with great skill. His skating attracted the eyes of the public generally which pleased him no little and caused him to continue his exhibition with renewed speed and vigor. "This individual would skate very close to other persons in said rink, and pretend as though he was about to skate directly into them, then, upon seeing that his intended victim became greatly alarmed at the prospect of being knocked down and run over by this individual, he would suddenly cut to the left and with a big smile of pleasure at the expense of the skater, who was greatly disturbed over the threatened injury, this unknown individual would skate away in great glee over the discomfort of others." This was done several times to the patrons, and finally his activities became so irritable and repulsive to the patrons that one of the agents or employees of the defendant, whose duty it was so to do, accosted said individual and informed him to conduct himself properly, and warned him to cease his recklessness and carelessness in said rink. He stopped for a short time, then continued again, and was again warned by the defendant's employees, but this individual continued to skate at a fast, reckless, and careless rate of speed. It was further alleged that plaintiff was skating along and "about the time this unknown individual got within a few feet of your petitioner he suddenly turned around on one skate and commenced skating at a fast speed backwards. In other words, he was skating in a direction opposite from which he was looking, and doing so in a fast, reckless, and careless manner." Plaintiff was skating along slowly in the direction opposite to that in which the individual was looking. While he and said individual were so skating, said individual, without looking where he was going and in total disregard of plaintiff's rights in the rink, skated on and into the side of the plaintiff, knocking him into the wall of the rink near a certain window. The plaintiff sustained a broken collar bone and other injuries. The plaintiff alleged that the law imposed on the defendant the duty of exercising ordinary care for the protection of him and others using the rink. It is alleged that the defendant's employees "knew and saw the reckless, careless and negligent manner in which said individual was skating . . and . . knew that your petitioner and others skating in said rink were in danger by the recklessness, carelessness, and negligence on the part of said unknown individual, but notwithstanding this, neither the defendant nor her agents, servants, and employees did anything to require the said unknown individual to skate in a proper manner except to warn him as hereinbefore alleged. They failed to eject him from the floor, or in any way to do anything to insist upon his skating in a proper and decent manner." The plaintiff relied on this duty alleged to have been owed him by the defendant, and alleged that by reason of a failure of the defendant to exercise this duty he received the injuries. The plaintiff here was an invitee, and as such the defendant is liable in damages to him for injuries occasioned by her failure to exercise ordinary care in keeping the premises and approaches safe. Code, § 105-401. The rule with reference to places of amusement has been thus stated: "The duty assumed by the owner of a place of amusement or recreation where the public are invited, for his profit and their pleasure, is analogous to that which the law imposes upon carriers of passengers, differing only in the standard of care required. In the latter, the standard is extraordinary care; and in the former, ordinary care." Moone v. Smith 6 Ga. App. 649 (2) (65 S.E. 712). In Murphy v. Winter Garden Ice Co, (Mo.App.), 280 S.W. 444,446, the plaintiff was injured under conditions somewhat similar to the instant case. There the plaintiff was skating in the defendant's rink. After she had been skating for about five or ten minutes she noticed two young men, also patrons, skating around trying to push, shove and trip different girls. Every time plaintiff passed them they tried to contact her. After about twenty minutes she notified the uniformed attendant employee of the defendant, and complained of the conduct of the two young men. The attendant said he would caution the young men but did not do so. There were five such attendants on the floor. About an hour later, during the moonlight skate, one of these young men pushed her in the back and she fell and sustained injury. The defendant demurred to the plaintiff's evidence and the court overruled the demurrer and stated: "Nor can we say that no standard of care by which defendant's duty could be measured was shown, because ordinary care is always a relative term, and in every case must be determined by what the conduct of an ordinarily prudent person would have been under the same or similar circumstances. In fact it has been expressly held that the care required of persons engaged in the business of providing public amusements is care commensurate with the circumstances of the situation to protect their patrons against injury. . . Accordingly we think that the demurrer was correctly ruled [overruled]." See Frye v. Omaha c. St. R. Co., 106 Neb. 333 (183 N.W. 567, 22 A.L.R. 607, 667). In Savannah TheatresCo. v. Brown, 36 Ga. App. 352 (136 S.E. 478), a husband brought suit to recover expenses incurred in treating his wife on account of injuries received by her in the defendant's building. It was alleged that his wife attended a performance at the theater having first paid her admission fee. She sat in the balcony on the second floor. During the performance a group of boys were making a disturbance that was known to but not checked by the defendant. After the end of the performance she was starting down the stairs, and the boys started pushing and shoving the crowd, and in the excitement caused by the pushing and shoving in her rear the wife caught her heel in a hole, lost her balance, and fell down three steps, causing described injuries. In his opinion Judge Jenkins, declaring that the trial judge properly overruled the demurrer to the petition, said: "The result is that if the hilarity of the boys during the performance could not be taken as a sufficient circumstance to cause the defendant reasonably to anticipate the subsequent pushing by them in the hall, the plaintiff would not be entitled to recover." He then quoted from the Moone case, supra, as follows: If "there is any reasonable apprehension of danger to such a customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons can be prevented by the proprietor by the exercise of ordinary care and diligence, he may be guilty of negligence for his failure to use it, and consequently responsible in damages." Applying that principle to that case he said: "The petition having in substance alleged that in view of the defendant's knowledge that boisterous and hilarious customers were in the balcony, it was its duty to protect its customers from the danger incident to pushing and shoving down the ill-lighted and defectively-carpeted stairway of the hall, and since it is the general rule that what in a given case constitutes ordinary care on the part of such a proprietor for the protection of its patrons is a question for determination by the jury, and not by the court, . . this court will not disturb the judgment of the trial court overruling the demurrer." See Stewart v. Mynatt,135 Ga. 637, 640 (70 S.E. 325).

Of course there are cases in which a warning to an expert skater by the proprietor of a skating rink to cease doing certain things that are likely to injure other patrons, would entitle the proprietor to assume that the warning was sufficient; yet there are other cases where the proprietor is not entitled to assume that a warning will be sufficient, for the proprietor is required to exercise reasonable care and use such means of protecting other patrons as are available, or which he should in advance have provided because of the antecedent likelihood that the expert skater might misconduct himself to the injury of other patrons. Thus, if an expert skater was not skating in the usual, ordinary, and normal way, but was so skating as to make it extremely hazardous for the other patron skaters, and if this antecedent conduct was such as would authorize a jury to say that, from such antecedent conduct, there was a likelihood that the expert skater would subsequently misconduct himself to the injury of other patrons, and if they so found, then the proprietor would be required to provide or use such means of protection as an ordinarily prudent man would provide or use, in advance, because of the antecedent likelihood that the expert skater might misconduct himself to the injury of other patrons. 2 Restatement of the Law of Torts, 954, § 348 (b). This of course does not mean that the proprietor is the insurer of other patrons against injuries which may occur in his skating rink. The question of the skill of the expert skater in handling himself in skating has no relevancy except to throw light on the means to be used and what would amount to the exercise of ordinary care; and even though the skater was an expert, if the proprietor had notice that he was conducting himself in such manner as was likely to result in injury to other patrons, a failure to take action to provide protection to other patrons such as an ordinarily prudent man would have taken under the circumstances would be actionable negligence on the part of the proprietor.

Whether or not the efforts of the employees constituted ordinary care as to protecting the plaintiff from injury by acts of the third party was a question for the jury. It is true, as urged by the defendant, that the plaintiff assumed the ordinary risks pertaining to a skating rink, but we do not think it can be said as a matter of law that the plaintiff assumed the risk of injury that might arise out of the "careless, negligent, and reckless skating of said unknown person" as described in the petition. Also, questions of proximate cause, whether the plaintiff could by the exercise of ordinary care have avoided the consequences of the conduct of the unknown individual, were, under the facts alleged, questions for determination by the jury. We therefore think the judge erred in sustaining the general demurrer to the petition and dismissing the action. See Pippin v. Regenstein,58 Ga. App. 819, 823 (199 S.E. 790).

Judgment reversed. Broyles, C. J., and Gardner, J., concur.