Dockery Ex Rel. Pullen v. World of Mirth Shows, Inc.

142 S.E.2d 29 (1965) 264 N.C. 406

Marta Melinda DOCKERY, By Her Next Friend, E. T. Pullen, III,
v.
WORLD OF MIRTH SHOWS, INC., and Michael Dembrosky, d/b/a M. D. Amusement Company.

No. 451.

Supreme Court of North Carolina.

May 19, 1965.

J. F. Motsinger and Deal, Hutchins & Minor, Winston-Salem, for plaintiff.

R. M. Stockton, Jr., and W. F. Maready, Winston-Salem, for World of Mirth Shows, Inc. Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, Winston-Salem, of counsel.

MOORE, Justice.

Defendant Mirth asserts that the negligence, if any, giving rise to plaintiff's fall and injuries consisted of acts and omissions of Dembrosky, an independent contractor, and the conduct of plaintiff in standing while the Scrambler was in motion.

In response to an issue submitted by the court, the jury determined that Dembrosky was not an agent or employee of Mirth. An employer is not ordinarily liable for injury resulting from dangerous conditions collaterally created by the negligence of an independent contractor. But where it is reasonably foreseeable that harmful consequences will arise from the activity of the contractor unless precautionary methods are adopted, the duty rests upon the employer to see that these precautionary measures are adopted and he cannot escape liability by entrusting this duty to the independent contractor. The contractor may be liable for the same want of due care in not taking the necessary precautions, for the omission of which the employer is liable; but as to the employer, the liability is direct, and not derivative, since public policy fixes him with a nondelegable duty to see that the precautions are taken. Evans v. Rockingham Homes, Inc., 200 N.C. 253, 17 S.E.2d 125.

The presiding judge was of the opinion that the alleged relationship of employer and independent contractor between Mirth and Dembrosky did not necessarily absolve Mirth from liability under the facts and circumstances of the instant case, and he instructed the jury as follows with respect to the issue (third issue) of Mirth's negligence:

"If you find from the evidence and by its greater weight the Scrambler was such a ride as was likely to cause injury to passengers unless due care was exercised in its maintenance and operation, in view of the nature of the device, then it would be the duty of the defendant, World of Mirth Shows, to inspect the Scrambler in order to see that it was maintained in a reasonably safe condition, to supervise the operation of the Scrambler to such an extent as to see that it was operated with due care, and to see that the operator would check the gates or bars to the seats to see that they were securely latched and fastened and that the plaintiff was safely seated before starting it, and * * * these duties of inspection and supervision by World of Mirth, the defendant, could not be delegated to Dembrosky, his agents or employees, whether or not he was a concessionaire or an independent contractor; that such duties of supervision would remain the responsibility of the defendant, World of Mirth Shows, Incorporated, and such failure by Dembrosky would be attributed as a matter of law to World of Mirth, Incorporated, the defendant, and that such failure of World of Mirth to inspect and supervise was a proximate cause of plaintiff's injuries, then in that event the jury would answer the third issue `Yes.'"

Defendant Mirth questions the applicability of the principles set out in the charge to the evidence presented. Whether the principle of nondelegable duty is applicable to the facts and circumstances, is an important consideration also in passing on Mirth's motion for nonsuit.

It is generally held that the owner of a place of amusement having a variety of attractions and devices or a general concessionaire actually engaged in the conduct of such place of amusement cannot avoid liability for injuries to patrons resulting from the defective or dangerous condition of the premises or from defective amusement apparatus or devices on the ground that such premises or devices are under the control of and used by a sub-concessionaire. Liability of such owner or general concessionaire is predicated either upon his nondelegable duty to maintain a reasonably safe place for the patrons, in accord with which he must answer for the negligence of the sub-concessionaire or the latter's employees in rendering the premises and devices unsafe, or merely upon the general ground that such owner or general concessionaire is responsible for his breach of duty to keep the premises, including the devices, reasonably safe, without reference to any separate act or omission of the subconcessionaire. While there are some decisions to the contrary, the greater weight of authority is that such owner or general concessionaire will not be relieved from responsibility because the amusement or device is provided and conducted by the sub-concessionaire, provided it is of a character that would probably cause injury unless due precautions are taken to guard against it; and this duty applies not only to the condition of the premises and device, but also to the management and operation where the device is of a character likely to produce injury unless due care is observed in its operation. The duty is a continuing one. 4 Am.Jur.2d, Amusements and Exhibitions, s. 64, pp. 186-8; 145 A.L.R. Anno.—Amusement—Negligence of Concessionaire, pp. 962-980; Restatement of the Law, Torts (1934), Vol. II, s. 415, pp. 1122-6; Richmond & M. Ry. Co. v. Moore's Adm'r., 94 Va. 493, 27 S.E. 70, 37 L.R.A. 258 (1897); Hollis v. Kansas City, Mo., Retail Merchants Ass'n, 205 Mo. 508, 103 S.W. 32, 14 L.R.A., N.S., 284 (1907); Stickel v. Riverview Sharpshooters' Park Co., 250 Ill. 452, 95 N.E. 445, 34 L.R.A., N.S., 659 (1911); Turgeon v. Connecticut Co., 84 Conn. 538, 80 A. 714 (1911); Hartman v. Tennessee State Fair Association, 134 Tenn. 149, 183 S.W. 733 (1916); Johnstone v. Panama-Pacific International Exposition Co., 187 Cal. 323, 202 P. 34 (1921); Szasz v. Joyland Co., 84 Cal. 259, 257 P. 871 (1927); Birmingham Amusements v. Turner, 221 Ala. 242, 128 So. 211 (1930); Engstrom v. Huntley, 345 Pa. 458, 26 A.2d 461 (1942); McCordic v. Crawford, 23 Cal. 1, 142 P.2d 7 (1943); Bauer v. Saginaw County Agricultural Society, 349 Mich. 616, 84 N.W.2d 827 (1957); Priebe v. Kossuth County Agricultural Ass'n, Inc., 251 Iowa 93, 99 N.W.2d 292 (1959). The cases here cited are only a few of the many cases found in the reports.

Matters of importance in determining existence and extent of the duty of such owner or general concessionaire to inspect premises and devices and to exercise oversight and supervision of operation of amusements are: Invitation to the public to attend—one, who expressly or by implication invites others to come upon the premises, has the duty to be reasonably sure that he is not inviting them into danger and to that end must exercise reasonable care for their safety. Richmond & M. Ry. Co. v. Moore's Adm'r, supra; Engstrom v. Huntley, supra. Failure to advertise does not relieve them of duty if they share in the proceeds. McCordic v. Crawford, supra. The duty is assumed by them when they retain and exercise a measure of control. Hollis v. Kansas City, Mo., Retail Merchants Ass'n, supra; Lakeside Park Co. v. Wein, 111 Colo. 322, 141 P.2d 171 (1943). Where the general operation of the place of amusement is admitted by the owner or general concessionaire, the injured patron is not required to show the precise arrangement between the owner or general concessionaire and the sub-concessionaire. Engstrom v. Huntley, supra. There is responsibility only for perils discoverable by ordinary and reasonable inspection and oversight. Hiatt v. Ritter, 223 N.C. 262, 25 S.E.2d 756; Kuhn v. Carlin, 196 Md. 318, 76 A.2d 345 (1950). As to the duty with respect to the methods of operation of apparatus and devices, the owner or general concessionaire need not provide against unlikely or unforeseeable conduct of a patron (Hiatt v. Ritter, supra), and ordinarily is not responsible for casual or isolated acts of negligence of sub-concessionaire or his employee. Kuhn v. Carlin, supra; Tuggle v. Anderson, 43 Wash.2d 721, 263 P.2d 822 (1953).

An owner or general concessionaire is not an insurer of the safety of invitees. His duty is that of reasonable care under the circumstances. Where, for instance, the instrumentality or device is inherently dangerous and the patrons are children of tender years, the care exercised must be commensurate with the peril and the likelihood of injury. Engstrom v. Huntley, supra.

In this jurisdiction there seems to be only one case factually comparable to the case at bar—Smith v. Cumberland County Agricultural Society, 163 N.C. 346, 79 S.E. 632. Plaintiff paid admission to the county fair and was looking at preparations for a balloon ascension, a "free attraction." He was requested by one in charge to assist in holding the ropes attached to the balloon, and after doing so, and as he was leaving, the balloon suddenly ascended, and, his foot having caught in a loop of one of the ropes, he was carried aloft by the balloon. The evidence was conflicting as to whether the place was properly guarded or enclosed or the crowd was warned of the danger of going close to the balloon. Plaintiff sued the Agricultural Society which was conducting the fair; The Society defended on the ground, inter alia, that the balloonist was an independent contractor. The trial judge allowed defendant's motion for nonsuit. In reversing the nonsuit, this Court said (quoting 38 Cyc. 248): "The owner of a place of entertainment is charged with an affirmative positive obligation to know that the premises are safe for the public use and to furnish adequate appliances for the prevention of injuries which might be anticipated from the nature of the performance, and he impliedly warrants the premises to be reasonably safe for the purpose for which they are designed." The Court states that the defense of "independent contractor" does not arise on the motion for nonsuit, it being an affirmative defense, but comments that "the owner `is not exonerated because the exhibition where the injury was received was provided and conducted by an independent contractor.'" Citations of authority are meager and discussion is brief, but the opinion indicates that this Court follows the majority view in this field. It is noted that the acts and omissions, alleged to constitute negligence, involve the operation of the attraction or device.

Davis v. City of Atlanta, 84 Ga.App. 572, 66 S.E.2d 188 (1951), arose because of an injury suffered by plaintiff while riding on a "Scrambler." Plaintiff sued the City, owner of the fair grounds, the Fair Association and the concessionaire, operator of the Scrambler. Plaintiff alleged defendants failed to inspect the Scrambler. The City had leased the grounds to the Fair Association which, in turn, leased a part of the grounds to the concessionaire. The City and the Association each received a percentage of the proceeds from the operation of the Scrambler, which was specified in the leases as "ground rent"; concessionaire, according to his lease, assumed absolute control of the ride and carried liability insurance. The City and the Fair Association defended on the ground that their liability was limited to the ordinary liability of a lessor. The Court held that because these parties advertised the fair and its attractions and thereby invited the public, and did not surrender the right of general control, they had the duty to inspect. It would seem that this case, in the legal aspects, is less favorable for a recovery by the injured patron than the case at bar.

The evidence in the instant case is sufficient to permit the jury to find these facts: Mirth, general concessionaire, agreed to provide rides and shows for the Dixie Classic Fair. It provided these amusements, among them the Scrambler which was operated by an attendant, an employee of the owner thereof, Dembrosky, sub-concessionaire. Mirth by contract assumed responsibility for the amusements and agreed to indemnify the Fair for any liability incurred by reason of the operation thereof. As per contract between Mirth and the Fair, the attractions were advertised by the Fair and the public was invited to attend. Mirth gave attention to all complaints, and daily reported and delivered all admission receipts of the amusements to the Superintendent of Admissions, an agent of the Fair. The Fair received a percentage of receipts; Mirth looked to the amusements for its compensation. Many, if not most, of the patrons of the Scrambler were children. The Scrambler was inherently dangerous if precautions were not taken to assure the safety of the riders. The bars on the seats of the Scrambler, designed to secure the safety of riders, were difficult to fasten. The procedure of the attendant was to leave to the riders the closing and latching of the bars and to start the motor and operate the ride without ascertaining that the bars were closed and latched and the riders secure. Reasonable inspection and oversight of the Scrambler while in operation would have disclosed the condition of the bars and the attendant's method of operation. Mirth failed to perform its duty of inspection and supervision, or, if it performed the duty, it failed to take precautions for the safety of riders. The difficulty in closing the bars and the neglect of the attendant to see that riders were secure proximately caused the injury to plaintiff.

In the operation of an amusement "ride," it is the duty of the operator to be alert and to see that the riders are safe during the operation. Brown v. Columbia Amusement Co., 91 Mont. 174, 6 P.2d 874 (1931); Linthicum v. Truitt, 2 Boyce 338, 25 Del. 338, 80 A. 245 (1911). For a case involving a loose bar on a roller-coaster, see Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 141 A.2d 301, 66 A.L.R. 2d 680 (1958).

In our opinion the evidence is sufficient to withstand defendant Mirth's motion for nonsuit, and the trial judge applied appropriate legal principles in his consideration of the motion. The question of contributory negligence on the part of plaintiff was for the jury, and the jury resolved that question in favor of plaintiff. The principles of law applied by the court to the evidence in the excerpt from the charge set out above are substantialy correct and proper.

Several witnesses were allowed to testify, over the objection of defendant, to the effect that they rode on the Scrambler both before and after the accident in which plaintiff was injured, they found it difficult to fasten the protective bars, the attendant did not assist them in closing the bars, he made no effort before or during the ride to ascertain that the bars were fastened and the riders secure, and he left it to the riders to close and latch the bars as best they could without any attention from him. This evidence was competent and essential in that it tends to show a prevailing defect in the mechanisms and a continuously negligent method of operation which a reasonably attentive inspection and supervision would have disclosed to defendant Mirth.

We have carefully considered all assignments of error and we find nothing sufficiently prejudicial in the conduct of the trial and the charge of the court to warrant a new trial.

No error.