Aaser v. City of Charlotte, 275
| Decision Date | 03 November 1965 |
| Docket Number | No. 275,275 |
| Citation | 265 N.C. 494,144 S.E.2d 610 |
| Court | North Carolina Supreme Court |
| Parties | , 14 A.L.R.3d 1008 Evelyn A. AASER v. The CITY OF CHARLOTTE, the Auditorium-Coliseum Authority and Charlotte Hockey Club, Inc. |
Boyle, Alexander & Carmichael, Charlotte, for defendant appellants.
Elbert E. Foster and Richard T. Meek, Charlotte, for plaintiff appellee.
The Coliseum is an arena for the holding of exhibitions and athletic events owned by the city of Charlotte and administered for it by the Authority to produce revenue and for the private advantage of the compact community. A city is engaging in a proprietary function when it operates such an arena, or leases it to the promoter of an athletic event, and when it operates refreshment stands in the corridors of the building for the sale of drinks and other items to the patrons of such an event. Carter v. City of Greensboro, 249 N.C. 328, 106 S.W.2d 564; Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42. Consequently, the liability of the city and of the Authority to the plaintiff for injury, due to an unsafe condition of the premises, is the same as that of a private person or corporation. Carter v. City of Greensboro, supra; Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371; Millar v. Town of Wilson, supra; McQuillin, Municipal Corporations, 3rd ed., § 53.91.
Upon this appeal it is not necessary for us to determine the duty owed to a ticket holder by the owner of an arena who has leased it to the promoter of an athletic exhibition so as to divest the owner of all control over the building. Here, by the terms of the lease, the city, through the Authority, retained a substantial measure of use of and control over the corridors of the Coliseum, even while the lessee was using it for its hockey games. The mere execution of such a lease does not free the city and the Authority from liability to a ticket holder injured in the corridor while in the Coliseum to attend a hockey game. Davis v. City of Atlanta, 84 Ga.App. 572, 66 S.E.2d 188; Johnson v. Zemel, 109 N.J.L. 197, 160 A. 356; 4 Am.Jur.2d, Amusements and Exhibitions, § 63.
One who purchases a ticket and, pursuant thereto, enters such an arena is an invitee of the operator of the exhibition. Williams v. Strickland, 251 N.C. 767, 112 S.E.2d 533; Hahn v. Perkins, 228 N.C. 727, 46 S.E.2d 854; Anderson v. Amusement Co., 213 N.C. 130, 195 S.E. 386; Strong, N. C. Index, Negligence, § 37a. While in a corridor providing access to portions of the building which his ticket entitles him to enter, he is also the invitee of the owner of the building who has retained the right to control the corridors. No appeal having been taken from the judgment of nonsuit as to the Hockey Club, we are not here concerned with the liability of the promoter-lessee to a ticket holder injured in the corridor which the owner has retained the right to use and control. Nor are we concerned here with the right of the ticket holder against the owner of the building for injury received in the portion of the Coliseum in which the hockey game is actually played. The plaintiff was injured in a corridor where she had a right to be as the holder of a ticket to the hockey game. The city and the Authority had the right to control the corridor. As to her use of and injury in this corridor, the relation of the plaintiff to them and their duty to her are the same as if the city were a private corporation both owning the building and promoting the hockey game therein.
One who, expressly or by implication, invites others to come upon his premises to view, for a price, an athletic 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. Dockery v. World of Mirth Shows, 264 N.C. 406, 142 S.E.2d 29. 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. Dockery v. World of Mirth Shows, supra; Lynn v. Wheeler, 260 N.C. 658, 133 S.E.2d 514; Williams v. Strickland, supra. See also: Revis v. Orr, 234 N.C. 158, 66 S.E.2d 652, 28 A.L.R.2d 609 (dance hall); Anderson v. Amusement Co., supra (theatre).
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 injury 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. Thus, a dance hall need not be brightly lighted (Revis v. Orr, supra) and the bleachers bordering the more remote areas of a baseball field need not be screened against batted balls. Those who attend athletic contests and similar amusements or exhibitions must anticipate that they will be conducted in the usual manner and surroundings. Thus, the owner of an arena has been held not liable for injury resulting from the normal jostling of a crowd at a hockey game. Klish v. Alaskan Amusement Co., 153 Kan. 93, 109 P.2d 75.
The duty of the owner extends to the physical condition of the premises, themselves, and to contemplated and foreseeable activities thereon by the owner and his employees, the contestants and the spectators. The amount of care reguired varies, but the basis of liability for injury to the invitee from any of these sources is the same--the failure of the owner to use reasonable care under the circumstances.
'[I]t is only when the dangerous condition or instrumentality is known to the occupant [owner], or in the exercise of due care should have been known to him * * * that a recovery may be permitted.' Revis v. Orr, supra. In the place of amusement or exhibition, just as in the store, when the dangerous condition or activity is created or engaged in by the owner or his employee, the owner is charged with immediate knowledge of its existence, but where it arises from the act of third persons, whether themselves invitees or not, the owner is not liable for injury resulting unless he...
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