Toothe v. City of Wilmington

174 S.E.2d 286 (1970) 8 N.C. App. 171

Frances Louise TOOTHE
v.
CITY OF WILMINGTON, North Carolina, and the Thalian Association, Inc.

No. 705SC62.

Court of Appeals of North Carolina.

May 27, 1970.

Jerry L. Spivey, Smith & Spivey, Wilmington, for plaintiff appellant.

Marshall, Williams & Gorham, by Lonnie B. Williams, Wilmington, for defendant appellee, Thalian Association, Inc.

CAMPBELL, Judge.

On a motion for judgment of nonsuit the evidence on behalf of the plaintiff 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. Aaser v. Charlotte, 265 N.C. 494, 144 S.E.2d 610 (1965).

One who, expressly or by implication, invites others to come upon his premises to view an 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. 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. 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 injuries 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. Those who attend concerts and similar amusements or exhibitions must anticipate that they will be conducted in the usual manner and surroundings. The duty of the owner is to use reasonable care under the circumstances. Aaser v. Charlotte, supra.

The statement of the rule is much easier than the application thereof.

There are numerous cases in which the rules are set out and are applied to varying situations. In Smith v. Agricultural Society, 163 N.C. 346, 79 S.E. 632 (1913), a judgment of nonsuit was reversed where the plaintiff was attending a balloon ascension, his foot was caught in a rope attached to the balloon, and the plaintiff was taken on a balloon ride rather than simply remaining as a spectator. In Williams v. Strickland, 251 N.C. 767, 112 S.E.2d 533 (1960), it was held that the complaint stated a good cause of action when the plaintiff alleged that the defendant, in operating an automobile race track, failed to provide patrons watching the race with proper seating or protective devices around the track in the way of adequate fences and barricades to prevent patrons from being injured. In this case a wheel came off one of the racing automobiles and struck the plaintiff.

In Dockery v. World of Mirth Shows, 264 N.C. 406, 142 S.E.2d 29 (1965), a general concessionaire was held liable for the negligence of a sub-concessionaire when a patron was injured by one of the amusement devices which was inherently dangerous if precautions were not taken to assure the safety of the riders thereon.

In Revis v. Orr, 234 N.C. 158, 66 S.E.2d 652 (1951), a dance hall proprietor was held not liable to a patron who fell over a chair outside of the ladies restroom door. The patron complained that the fall was due to the dim lights. It was held that a dance hall need not be brightly lighted.

In Benton v. Building Co., 223 N.C. 809, 28 S.E.2d 491 (1944), a patron opened a door from the lobby of a building into a cigar shop, failed to notice a step-down and fell. A judgment of nonsuit was sustained for that maintaining a difference in floor levels necessitating a step-down does not constitute negligence.

In Cupita v. Country Club, 252 N.C. 346, 349, 113 S.E.2d 712, 714 (1960), a judgment of nonsuit was sustained where a musician preparing to play for a club dance left the parking lot and took a shortcut across the premises and fell into a hole. The court said:

"``"The owner or occupant of premises is liable for injuries sustained by persons who have entered lawfully thereon only when the injury results from the use and occupation of that part of the premises which has been designed, adapted, and prepared for the accommodation of such persons." * * * If an invitee goes "to out of the way places on the premises, wholly disconnected from and in no way pertaining to the business in hand" and is injured, there is no liability. [B]ut a slight departure by him "in the ordinary aberrations or casualties of travel" do not change the rule or ground of liability, and the protection of the law is extended to him "while lawfully upon that portion of the premises reasonably embraced within the object of his visit." * * *'"

"The owner or person in charge of premises has a duty to keep the premises which are within the scope of the invitation in a reasonably safe condition for an invitee's safety for all uses by an invitee in a manner consistent with the purpose of the invitation, but the owner or person in charge is not bound to keep them in a reasonably safe condition for uses which are outside of the scope and purpose of the invitation, for which the property was not designed, and which could not reasonably have been anticipated, * * *"

In Harrison v. Williams, 260 N.C. 392, 132 S.E.2d 869 (1963), the plaintiff was directed by an employee of a restaurant to a cigarette machine which was at the end of a counter. In going to the cigarette machine the plaintiff did not anticipate a step-down when she came around the end of the counter in the restaurant and as a result fell and was injured. It was held that the plaintiff had failed to establish actionable negligence on the part of the defendant for that different floor levels in private or public buildings connected by steps are so common that the possibility of their presence is anticipated by prudent persons. Such construction is not an act of negligence unless by its character, location, or surrounding conditions a reasonably prudent person would not be likely to expect a step or see it.

In the instant case there is no evidence that the construction of the hall with a depressed orchestra pit some 8 to 14 inches below the main floor of the auditorium constituted negligent construction. There was no evidence that patrons attending the concert were expected to go down to the front of the hall after the concert was over when that was not the way to any exit and only led to the stage. In the instant case Thalian had subleased the premises and surrendered charge thereof to the Advent Christian denomination for the choir performance. Thalian was obligated to do this under the lease which it had with the city. Thalian was not responsible for the construction of the hall, and under its lease, could not have changed the construction of the orchestra pit without first procuring approval from the city which owned the premises. There was no inherent danger in the construction, and the type and manner of construction was observed by and known to the sublessee, Advent Christian denomination, which was in charge of putting on the performance. The choir leader, and not Thalian, had given the directions as to what lights would be needed and when the curtain would need to be opened. The evidence in this case reveals that Thalian had relinquished control and operation of the premises for this particular performance.

The evidence, in the light most favorable to the plaintiff, fails to establish any duty on the part of Thalian to the plaintiff which was breached and for which Thalian should respond in damages. We hold that the judgment of nonsuit was proper.

Affirmed.

PARKER and VAUGHN, JJ., concur.