Adam Dante Corp. v. Sharpe

• Decision Date: 21 June 1972
• Docket Number: No. B--2859,B--2859
• Citation: 483 S.W.2d 452
• Parties: ADAM DANTE CORPORATION d/b/a Adam and Eve Health Spa, Petitioner, v. Beulah H. SHARPE, Respondent.
• Court: Texas Supreme Court

Page 452

483 S.W.2d 452

ADAM DANTE CORPORATION d/b/a Adam and Eve Health Spa, Petitioner, v. Beulah H. SHARPE, Respondent.

No. B--2859.

Supreme Court of Texas.

June 21, 1972.

Rehearing Denied July 26, 1972.

Hartt & Perry, Grover Hartt, Jr., Dallas, for petitioner.

Feldman, O'Donnell & Neil, Larry Feldman, Dallas, for respondent.

POPE, Justice.

Beulah H. Sharpe slipped and fell on the premises of Adam Dante Corporation, a health spa to which Mrs. Sharpe had fully paid her one-year membership fee. She sued for damages for the personal injuries sustained in her fall, and the trial court granted defendant's motion for summary judgment. In reversing the trial court judgment and remanding the cause, the court of civil appeals ruled (1) that Mrs. Sharpe proved by the membership contract that Adam Dante owed her the duty to maintain safe premises, (2) that the contract also defeated the necessary element of voluntariness to the defense of volentinon fit injuria, and (3) that Adam Dante did not prove Mrs. Sharpe was contributorily negligent as a matter of law. 468 S.W.2d 167. We affirm the judgment of the court of civil appeals.

Mrs. Sharpe alleged that the floor of the area in which she fell was slippery, that there was an excess of a foamy substance and water on the floor, and that Adam Dante did not place rubber pads on the floor leading to the swimming pool. The defendant pleaded (1) a general denial, (2) volenti non fit injuria, and (3) contributory negligence. Thus, in this rather simple fact situation, we find the whole network of legal principles unique to actions against an occupier of premises. Defendant Adam Dante, as movant for summary judgment, had the burden to prove, and urges that it did prove, that there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. Rule 166--A, Tex.R.Civ.P.

Mrs. Sharpe's deposition testimony and some photographs are the basis for the trial court's summary judgment against her. Mrs. Sharpe had enrolled as a member of the Adam Dante health spa about two weeks before her accident and had a membership contract for one year. The accident occurred on her fifth visit to the spa; she had been in the swimming area, however, only two times previously. Upon her arrival in the late afternoon she went to the locker room, and then left through a door and down the corridor. She said there was 'another hallway that goes into the gym section, and up above there was a little sign, a very small sign . . . that said, 'Slippery When Wet." She denied the presence of any other warning sign on the premises. She entered a hallway. On one side was a sauna room, next to that was a steam room, and at the far end was the swimming pool. Near the swimming pool there was a sunken whirlpool which she said was out of order most of the time. It was not functioning three of the five times she had visited the spa. She said there was foam on the water in the whirlpool and that whirlpools are not supposed to have foam. She said that she had seen the whirlpool overflowing on a former visit when she saw a woman mopping up slippery foam and that if the whirlpool overflowed, the floor would be extra slippery. She refused to say that the water from the whirlpool was like any other water. Defendant's counsel asked Mrs. Sharpe if she made any claim that the water in the whirlpool was mixed with anything such as soap which would cause it to be more slippery than ordinary water. She said she could not answer that question. The whirlpool was not overflowing while she was there, but she said that if there had been an overflow earlier during the day 'the floor would have probably been slipperier than usual.'

There were no mats on the floor of the hallway and there had been none on her prior visits. There were no employees around the premises at the time of her visit, and she was the only person in the pool area. She said that she walked barefooted down the tile floor of the hallway and entered the swimming pool. After swimming, she entered the whirlpool and then went into the sauna room. Upon leaving the sauna room, she walked back down the hallway toward the pool for the purpose of picking up a towel. In the area of the whirlpool her feet slipped from under her resulting in serious injuries.

Our first inquiry is whether Adam Dante discharged its summary judgment burden to prove, as a matter of law, that it owed no duty to Mrs. Sharpe to do anything more than it did. It becomes necessary for us, therefore, to determine whether she was either an invitee, or, as Mrs. Sharpe urges, one to whom Adam Dante owed a contractual duty similar to that which the nine-year-old child enjoyed in Harvey v. Seale, 362 S.W.2d 310 (Tex.1962). We held in that case that the members of a family holding under a lease contract enjoyed a greater right than that of an invitee because the landlord was under a covenant to keep the premises in repair. We ruled that proof of the lease agreement was also proof of the landlord's duty. The court of civil appeals in this case so regarded Mrs. Sharpe's rights.

Persons who have been treated as invitees include patrons of restaurants, banks, theatres, and places of amusement. W. Prosser, Law of Torts § 61, at 385--386 (4th ed. 1971). The difference between those business relationships and this one is that Mrs. Sharpe had a continuing right to return to the spa from time to time. While the question is not an easy one, Mrs. Sharpe's relationship to the spa was something less than that of a tenant whose landlord is under a contractual obligation to make needed repairs. She was more like a person who holds a season ticket to a number of separate performances or a meal ticket which can be used from time to time. Club membership has been held to create an invitee relationship. See Bentley v. Hamden Post 88, Inc., 27 Conn.Sup. 56, 229 A.2d 32 (1967); Davis v. Springfield Lodge No. 158, 24 Ill.App.2d 102, 164 N.E.2d 243 (1960); Smith v. Cedar Rapids Country Club, 255 Iowa 1199, 124 N.W.2d 557 (1964); City of Madisonville v. Poole, 249 S.W.2d 133 (Ky.1952). We hold that Mrs. Sharpe was an invitee.

This court has often measured the duty which an occupier of premises owes to an invitee. Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972); City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.1969); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). The duty is that which is summarized in Restatement (Second) of Torts § 343 (1965):

§ 343. Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Restatement (Second) of Torts § 343, Comment b (1965).

We have set forth in the margin ¹ some, but not all, of the basic issues for a conventional occupier-invitee case. Under such issues, it would be Mrs. Sharpe's burden at trial to prove the existence and violation of a legal duty owed to her by Adam Dante. Coleman v. Hudson Gas and Oil Corp.,455 S.W.2d 701 (Tex.1970). That includes her burden to prove that she did not possess actual knowledge of the danger, that she did not fully appreciate the nature and extent of the danger, and that the danger complained of was not so open and obvious as to charge her, as a matter of law, with such knowledge and appreciation. Since this is a summary judgment proceeding, however, Adam Dante had to prove as a matter of law the opposite of what would ordinarily be the plaintiff's burden to prove or it had to prevail as a matter of law on one or more of its defenses.

The evidence Adam Dante relies upon, in support of its proof that it owed Mrs. Sharpe no duty, is (1) Mrs. Sharpe's own deposition testimony, and (2) proof of an adequate warning of the slippery condition. In our opinion reasonable minds could differ about the conclusions to be drawn from the facts. Mrs. Sharpe knew about the presence of some water and moisture and she appreciated that condition. A fact finder could conclude, however, that something more was present on the floor besides water. She said the danger was not the water but the slippery condition. She gave a plausible basis for that condition by her testimony of the foamy and slippery whirlpool water which overflowed in the area where she fell. She may have known of some danger, but she may not have known and fully appreciated the nature and extent of the hidden danger of the foam which may or may not have been properly wiped from the tile floor. Reasonable minds could conclude that there was a slippery film on the floor around the whirlpool about which she did not know and which she did not fully appreciate. We cannot say that the proof showed as a matter of law that she knew and appreciated the particular risk. See Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Greenhill, Assumed Risk,20 Sw.L.J. 1, 12 (1966).

Adam Dante also says that it discharged its duty by supplying knowledge of the danger to Mrs. Sharpe through some warning signs posted on the premises. Mrs. Sharpe, however, said that there was only one small warning sign. She described it as a sign about six by twelve inches in size, on which was written, 'Slippery When Wet.' She said it was located above a door which leads from a hallway into the gym section. It is not clear from her...