Central Theatres v. Wilkinson

• Decision Date: 09 June 1944
• Citation: 154 Fla. 589,18 So.2d 755
• Parties: CENTRAL THEATRES, Inc., v. WILKINSON et al.
• Court: Florida Supreme Court

18 So.2d 755

154 Fla. 589

CENTRAL THEATRES, Inc., v. WILKINSON et al.

Florida Supreme Court

June 9, 1944

On Rehearing July 18, 1944.

Appeal from Circuit Court, Lee County; George W. Whitehurst judge.

Henderson, Franklin, Starnes & Holt and Parker Holt all of Fort Myers, for appellant.

Roy D Stubbs and F. A. Whitney, both of Fort Myers, for appellees.

THOMAS, Justice.

One night the appellees purchased tickets for admission to the Ritz Theater in Fort Myers and took their seats while a motion picture was in progress. They sat nearer the screen than the rear of the theater or, as one of them related, 'about two-thirds way down as we came into the theatre * * * fairly close to the exit sign' and 'a little forward' of the door. While they were intent upon the picture something suddenly struck the appellee Henriette Wilkinson in the eye causing such severe pain that she screamed and had to be assisted to the lobby by her husband and another patron. When they arrived there neither the manager nor any attendant could be found and, the box office being locked, it was necessary for the husband to go to a telephone a block away to summon a doctor and the police. Meanwhile no person connected with the institution appeared.

Examination by several physicians and the use of the X-ray disclosed that a BB shot had lodged in appellee's eye. An operation was necessary to remove the object, and as a consequence of her unfortunate experience appellee lost completely the sight in the injured eye. So there is no dispute in the evidence about the fact that this appellee was grievously and painfully injured while occupying a seat in the theater, which, we may add, she had a right to believe was secure from any such danger.

We pause now to discuss the general principles of law by which the responsibility of persons conducting public places of amusement may be gauged. From our study of the matter we are convinced that by the weight of authority they are not insurers. Johnson v. Hot Springs Land & Improvement Co. 76 Or. 333, 148 P. 1137, L.R.A.1915F, 689 (citing Turlington v. Tampa Electric Co., infra); Glynn v. Lyceum Theatre Co., 87 Conn. 237, 87 A. 796. See 26 R.C.L. page 714; 62 C. J. 866; also Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 635, 53 A.L.R. 840, where the Alabama Court held that the proprietor of an amusement place while not an insurer against injury to patrons due to 'their own missteps or disabilities' was liable as a matter of law 'where the causating defect was * * * discoverable by ordinary inspection.'

In Turlington v. Tampa Electric Co., 62 Fla. 398, 56 So. 696, 698, 38 L.R.A., 72, Ann.Cas.1913D, 1213, we adopted the rule: 'Where one undertakes to render a service by furnishing accommodations of a public nature, the law imposes a duty to use proper care, precaution, and diligence in providing and maintaining the accommodations in a reasonably safe condition for the purposes to which they are adapted, and are apparently designed to be used.' Although the accommodation involved in that case was a swimming pool, while here it is a theater, the statement seems appropriate in the instant case. When the appellee became its patron the appellant was duty bound to exercise care, caution, and diligence to provide as well as maintain a place where she would be reasonably safe while the relationship lasted. It is insisted by the appellees that this duty was not fulfilled, while their adversary counters with the assertion that the injury suffered was the result of an occurrence which could not have been reasonably anticipated, Jacobs v. Hagenback-Wallace Shows, 198 Mich. 73, 164 N.W. 548, L.R.A. 1918A, 504, and that no negligence could be charged to it because of failure to guard her against a danger so improbable as not to reflect upon the wariness of the appellant.

This introduces two other phases of the event, namely, the condition of the door of the exit near which the appellees were seated, and the activities of certain persons without the theater. In passing to this door from the seats occupied by them it would be necessarry to go toward the rear of the theater a few paces, the width of three or four rows of seats, then turn to the right, part some curtains, and traverse a short hallway. The door was equipped with a 'panic-lock' and so constructed, in accordance with the requirements of Section 823.06, Florida Statutes, 1941, and F.S.A., that it would open outward upon slight pressure from the inside. A pane of glass near the lock had been broken, and the janitor had replaced it with a piece of wallboard. The door opened directly upon Patio de Leon on which various shops fronted. Although apparently a public way it was used only by pedestrians patronizing the stores and by vehicles loading and unloading merchandise. So much for the defective door--now for the action outside.

While the appellees were being entertained by the motion picture three boys were playing 'cops and robbers' in the Patio de Leon. The 'rebbers' advanced toward the emergency door and were warned by the 'cop,' who was armed with an air rifle which discharged BB pellets, that if they entered he would shoot. The 'robbers' dislodged the wallboard and entered the theater, whereupon the 'cop' carried out his threat and fired through the open door. We have been at pains to describe the exact places in the theater occupied by appellees because obviously they were not in the line of fire and the pellet must have ricochetted from the wall of the hallway through the curtains in order to strike the appellee Henriette Wilkinson. It is patent, too, that the curtains must have been parted at the exact time of the shot, probably by the escaping 'robbers.'

The appellant contends these circumstances were so unusual and danger from some one opening this door so remote that it would not have been reasonably anticipated or the injury prevented. At this point the position seems tenable, and we think that were we to conclude with this chapter of the event the responsibility of the appellant could not be fixed solely because of the fact that the defective pane had been temporarily repaired by substituting for the glass a piece of wallboard. When we go further into the testimony offered by the plaintiff to bolster its claim we find the condition of the door not so unimportant or insignificant as it now seems, nor the presence of the 'cop' and 'robbers' so casual.

The 'cop' testified he and the 'robbers' had been playing in and around the theater for a considerable part of, if not all, the time the appellees were inside. The boys had been in the lobby and the rest rooms and for a while watched the picture without having been charged any admission,--all this while they had carried one or two guns with them. They had fired their weapons many times 'at some poles and things' in the patio. A man described as the 'ticket...