Celebrities Bowling, Inc. v. Shattuck

• Citation: 160 Colo. 102,414 P.2d 657
• Decision Date: 23 May 1966
• Docket Number: No. 21144,21144
• Parties: CELEBRITIES BOWLING, INC., a California corporation, Plaintiff in Error, v. Opal M. SHATTUCK, Defendant in Error.
• Court: Supreme Court of Colorado

Page 657

414 P.2d 657

160 Colo. 102

CELEBRITIES BOWLING, INC., a California corporation Plaintiff in Error, v. Opal M. SHATTUCK, Defendant in Error.

No. 21144.

Supreme Court of Colorado, In Department.

May 23, 1966.

Sheldon & Nordmark, Joseph C. Jaudon, Jr., Denver, for plaintiff in error.

Vincent Cristiano and Robert Bugdanowitz, Denver, for defendant in error.

PRINGLE, Justice.

Plaintiff, Opal M. Shattuck, brought this action to recover damages from the defendant, Celebrities Bowling, Inc., for injuries which she sustained as a result of a fall down a flight of stairs located on defendant's property. The parties will be referred to as plaintiff and defendant.

The record discloses that plaintiff entered the area of defendant's enclosed swimming facility in order that she might watch other members of her family swim. Plaintiff, accompanied by her daughter, gained access to a balcony area overlooking the pool. From this point, the two women intended to make their way down the flight of stairs in question and thence to a spectator's section which would give them a clearer vantage point of the pool. These were the only stairs available to anyone desirous of gaining access to the spectator's section.

It appears from the testimony that the stairs were constructed of concrete with a roughened or brushed surface. The dimensions of the steps indicated that they were 5 1/2 feet long, 18 inches in width and had risers approximately 5 or 6 inches. Constant traffic had caused the middle portion of each step to be worn smoother, at least in some degree, than the rest of the step. Furthermore, the swimmers also made use of the stairs in order to reach the refreshment bar located on the balcony with the result that certain amounts of water were left on the stairs. Neither hand rails, non-slip treads nor warning signs were employed by the defendant in connection with the stairs.

Before plaintiff descended the stairway, she noticed that the steps were wet, although they did not appear to be slick. Plaintiff was careful to pick her way down the stairs so that she did not step in any of the water puddles, but rather only on an area of the step that was damp. As plaintiff stepped on the second step, her foot went 'out from under her' and she fell, breaking her ankle.

Plaintiff thereafter brought suit against the defendant corporation and a jury returned a verdict in the amount of $5,000 for the plaintiff. The court entered judgment thereon and the defendant seeks reversal.

Defendant offers three assignments of error:

1. The trial court erred in failing to grant defendant's motion for dismissal at the close of plaintiff's case on the ground that plaintiff had failed to establish a Prima facie case of negligence in maintaining the stairway.

2. The court erred in giving Instruction No. 13, setting forth the statutory life expectancy of the plaintiff, when no evidence had been introduced during the trial concerning the life expectancy of the plaintiff or to support the use of the mortality table. In addition, Instruction No. 13 constituted error inasmuch as it conclusively presumed that the plaintiff has a life expectancy of 22.82 years because she was 51 years of age.

3. The trial court erred in refusing to grant the defendant a mistrial, or in the alternative, in refusing to instruct the jury concerning a prejudicial statement made by plaintiff's counsel in closing argument as to the defendant's financial worth.

To facilitate an orderly discussion of defendant's first assignment of error, it is initially necessary to define the duty which the law imposes upon the defendant as an owner and operator of a swimming facility. Although the owner or operator of a swimming pool is not an insurer of his business guests' safety, he does, however, owe them a duty of reasonable care in constructing and maintaining his premises in a reasonably safe condition for the purposes for which it is designed and used. City of Aurora v. Weeks, 152 Colo. 509, 384 P.2d 90. See also Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036; Home Public Market v. Newrock, 111 Colo. 428, 142 P.2d 272.

With the duty of care required by defendant firmly in mind, it must then be determined whether the evidence presented by the plaintiff was sufficient to establish a Prima facie case of negligence or breach of the duty owed.

It was established in the record that the stairs, upon which the plaintiff fell, were the only ones which spectators could use in going to the spectators' area; that the stairway was also used by swimmers to reach the refreshment area, with the result that the stairway was constantly wet or damp due to the water dripping from the swimmers; that portions of the roughened surface of each step had been worn smooth from the traffic on the stairway; that deterioration of the roughened surface of the steps, in addition to the water deposited thereon, produced a slippery condition; that the defendant failed to provide non-slip treads, hand rails and signs warning of the condition of the stairway; that the plaintiff did not realize the steps were slick, although she did notice that they were wet; and that, although ...