Amick v. GOODING AMUSEMENT COMPANY
| Decision Date | 06 January 1966 |
| Docket Number | Civ. A. No. AC-1321. |
| Citation | 248 F. Supp. 782 |
| Parties | Peggy E. AMICK, Plaintiff, v. GOODING AMUSEMENT COMPANY, Inc., Defendant. |
| Court | U.S. District Court — District of South Carolina |
George H. Davis, Jr., Columbia, S. C., for plaintiff.
Thomas E. McCutchen, of Whaley & McCutchen, Columbia, S. C., for defendant.
Defendant seeks summary judgment as permitted by Rule 56, Rules of Civil Procedure, under proper circumstances.1 Before this Court were the pleadings, deposition of plaintiff as taken at defendant's insistence, affidavit of plaintiff's husband, pictures of defendant's machinery not objected to by plaintiff, affidavit of defendant's manager, and certain interrogatories propounded to defendant by plaintiff.
The gravamen of plaintiff's cause of action against defendant in the operation of an amusement at the State Fair in Columbia is found in Paragraph 5 of the Complaint:
5. On or about Thursday, October 24, 1963, while plaintiff was riding as a passenger in a cab on the said apparatus, it was under the exclusive management and control of defendants, and was so negligently, carelessly and recklessly operated, managed, and maintained by defendants that plaintiff was proximately caused to be thrown to the floor, thereby sustaining severe and permanent injuries herein described.
This Court is mindful of the hesitancy of courts of appellate resort, and many trial courts, to render summary judgment in negligence actions.2 On previous occasions the motion has been denied,3 usually on matters of law. Here we have a question of whether fact(s) exists sufficient for controversy, for recovery. The decisions favoring the drastic remedy are few.4 As noted in Mickle5 supra:
A better formula would be that the party approving the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists.
With the limit, and the extent of the authority under the Rule thus explored, the Court proceeds.
The facts reveal that plaintiff, a twenty-three year old wife and mother, accompanied her husband, a Columbia Fire Department fireman to the South Carolina State Fair on the evening of October 24, 1963 and "started around the Midway."6 At approximately eight thirty p. m., they decided to ride in the "Flying" Cage, and were allowed free amusement by virtue of his uniform. They had ridden in 1962 and proceeded to ride again. The Flying Cage is an amusement and occupants, or "riders", enter a cage, consisting of metal wires and bars, completely enclosing occupants, who stand on a wooden floor. Movement is entirely at the choice of occupants or riders. The evidence before the Court, as revealed by the deposition of Mrs. Amick is:
The affidavit of the husband revealed:
* * * That the deponent and the plaintiff walked into The Flying Cage Ride and the attendant closed the door; that the only light in the enclosed cage was from outside lights on the midway and near the ride and that there was no light in the cage itself; that the floor of the cage was visible but not well lighted; that the deponent did not have time to inspect the floor before the ride was started by the operator; that the deponent and his wife had been riding for a short period of time when the plaintiff suddenly fell to the floor, she attempted to get up but was unable to do so; that the deponent then called to the attendant to stop the ride which the attendant did, the deponent then had opportunity to briefly observe the floor of the cage and notice that there was some sand and foreign matter on the floor and that the floor was a hardwood floor which had been worn rather smooth in the center and that the finish appeared to be worn off. * * *
Defendant's stated grounds for relief are:
Assumption of risk, (2) above, and contributory negligence (3) are inapplicable here. The former is ordinarily applicable where the relationship is of employer-employee, master-servant, or contract; the latter applies where defendant admits, or the evidence shows, initially, negligence on defendant's part. Both are affirmative defenses. If either were in issue here summary disposition would be denied because of factual issue.
Grounds (1) and (4) may be consolidated. The real question is whether there is any showing of actionable negligence on defendant's part, the question of proximate cause being of automatic, necessary, and simultaneous consideration.
It is elementary that plaintiff has the burden of proof and that "on a motion for a nonsuit the evidence and all reasonable inferences to be drawn therefrom are to be considered in the light most favorable to the plaintiff."7 It is also elementary that "the so called doctrine of res ipsa loquitur does not apply in this State."8 This Court therefore screens the material now before it in the light most favorable to plaintiff, willing to risk, for the purpose of justice, the accusation that the court "tried" the cause rather than gave consideration purely for purposes of the motion. But this must stand or fall in the light of the Court's judgment that no factual issue exists. This conclusion emerges after full exploration of the circumstantial possibilities, for as was pointed out in Chaney v. Burgess, supra.
While our decisions uniformly state that the so called doctrine of res ipsa loquitur does not apply in this State, they have with equal uniformity recognized that negligence may be proved by circumstantial evidence as well as direct evidence. And in determining the sufficiency of circumstantial evidence, the facts and circumstances shown are to be reckoned with in the light of ordinary experience and such conclusions deduced therefrom as common sense dictates. Where circumstantial evidence is relied upon to establish liability, the plaintiff must show such circumstances as would justify the inference that his injuries were due to the negligent act of the defendant, and not leave the question to mere conjecture or speculation.
Until further advised, this Court follows state decisions on matters of the substantive law long recognized as covered by the tent of state jurisdiction and treatment. Erie R. R. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.9 What has South Carolina to say on the subject here? What is the rule of liability that this Court should apply?
In Pope v. Carolina Theater, 172 S. C. 161, 173 S.E. 305, the appellate opinion affirmed a judgment of nonsuit where the facts revealed that plaintiff attending, at regular price, a movie, became nauseated by a stench bomb released by an unknown and as ...
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