Atlanta Funtown, Inc. v. Crouch, s. 42166

• Decision Date: 29 November 1966
• Docket Number: No. 3,42167,Nos. 42166,s. 42166,3
• Citation: 152 S.E.2d 583,114 Ga.App. 702
• Parties: ATLANTA FUNTOWN, INC. v. Miriam CHOUCH by Next Friend. ATLANTA FUNTOWN, INC. v. R. L. CHOUCH
• Court: Georgia Court of Appeals

Page 583

152 S.E.2d 583

114 Ga.App. 702

ATLANTA FUNTOWN, INC. v. Miriam CHOUCH by Next Friend.

ATLANTA FUNTOWN, INC. v. R. L. CHOUCH.

Nos. 42166, 42167.

Court of Appeals of Georgia, Division No. 3.

Nov. 29, 1966.

Syllabus by the Court

1. Under provisions of the Appellate Practice Act of 1965 the denial of a motion for summary judgment is an appealable judgment.

2. The petitions, seeking damages predicated upon injuries alleged to have been suffered by a fare-paying passenger of a thrill ride as a result of defendant's operation of the device at an unusual and improper rate of speed and its refusal, with actual knowledge of the passenger's peril, to heed request to stop the device and allow her to got, off, set out a cause of action.

3. Where it appeared from the passenger's testimony, by way of deposition, that she was familiar with the operation of roller coasters in general and in particular with the 'Wild Mouse,' a sort of roller coaster the mothod of operation of which she had observed before boarding it and upon which she was injured; that it was operated no differently on the occasion of her ride; that the passenger was not injured as a result of obscure or unobservable risks, unexpected dangers or unseen defects engendered by defendant's negligence in the design, construction, maintenance or operation of the device but as a result of natural and obvious hazards necessary to the purpose of the device; and that the defendant had no actual knowledge of the passenger's position of peril, a summary judgment for the defendant was demanded under the assumption of risk doctrine which is applicable to this kind of situation.

Plaintiffs below brought suit against Atlanta Funtown, Inc., seeking to recover damages predicated upon personal injuries sustained by Miriam Crouch (hereinafter referred to as plaintiff), a high school senior, while she was a fare-paying passenger on an amusement ride called the 'Wild Mouse' which defendant operated in its amusement park. The petition alleged that the 'Wild Mouse' was similar to a roller coaster, consisting of several coupled cars which were pulled up an incline by an electric motor and then released, so that the momentum carried the cars at a fast rate of speed on tracks around sharp graded curves and up and down hills. This movement caused plaintiff to be thrown about in the car, resulting in certain injuries. It was alleged that the ride was operated by attendants who could use four levers as braking devices to reduce the speed of the cars in the event the speed was greater than safe operation of the device would allow. There were six specifications of negligence making two basic charges against the defendant: running the car at a rate of speed greater than was reasonable, and failing to heed the cries of the plaintiff to slow the car down or to stop it and allow her to get off. To this petition defendant made an oral motion to dismiss in the nature of a general demurrer, which was denied.

Defendant also filed a motion for summary judgment specifying as evidence the deposition of plaintiff. The grounds of the motion were that there was no substantial genuine issue as to any material fact; that under the pleadings and the deposition of plaintiff there was no evidence or admitted fact sufficient to sustain a verdict or judgment in plaintiff's favor; and that defendant was entitled to judgment as a matter of law. This motion was denied. Relevant portions of plaintiff's deposition are set forth in division 3 of the opinion.

Defendant appeals from the order denying the motion for summary judgment and from the order denying the oral motion to dismiss in the nature of a general demurrer.

Long, Weinberg & Ansley, A. Gregg Loomis, Atlanta, for appellant.

Atkins & Atkins, Alton T. Milam, Ben S. Atkins, Atlanta, for appellee.

EBERHARDT, Judge.

1. The denial of a motion for summary judgment is itself an appealable judgment. Undercofler v. Grantham Transfer Co., 222 Ga. 654, 151 S.E.2d 765. ¹ And see Kahn v. Graper, 114 Ga.App. 572, 152 S.E.2d 10. In the case under review the motion for summary judgment and the oral motion to dismiss in the nature of a general demurrer were both denied in a single order entered January 20, 1966. The notice of appeal from this order was filed February 16, 1966. It thus appears that the overruling of the general demurrer and the denial of the motion for summary judgment are properly before us for review. Section 5 of the Appellate Practice Act of 1965 (Ga.L.1965, pp. 18, 21; Code Ann. § 6-803).

2. The precise questions raised by this appeal do not appear to have been decided in Georgia. Without attempting to formulate the specific rule in regard to the standard of care owed to its invitee-patron by the proprietor and operator of an amusement device such as that here involved (see Code § 105-401; Moone v. Smith, 6 Ga.App. 649(2), 65 S.E. 712; Carlyle v. Goettee, 64 Ga.App. 360(1), 13 S.E.2d 206, further appeal 68 Ga.App. 288(1), 22 S.E.2d 854; Macon Tel. Pub. Co. v. Graden, 79 Ga.App. 230(1c), 53 S.E.2d 371; Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 906, 81 S.E.2d 721; Land v. Amusement Vending Co., 94 Ga.App. 743, 96 S.E.2d 337, 75 A.L.R.2d 788; Tatum v. Clemones, 105 Ga.App. 221, 124 S.E.2d 425), we think the petition sufficiently sets forth a failure to exercise the ordinary care required by Code § 105-401. Since there are neither allegations of defective design, construction, or maintenance, nor allegations of unusual occurrences or physical aberrations in the operation and performance of the amusement device, it may be urged with some propriety, and particularly in view of the cases cited in division 3 of this opinion, that the allegations in regard to the speed at which the car was operated are defective in not alleging that the speed was unusual or that the operation of the device was in any manner different from the usual and ordinary operation of this or similar devices. As a matter of pleading, however, we regard the allegations that defendant failed to control the speed of the cars and operated them at a speed that was 'greater than reasonable' as tantamount to such allegations. Thus construed, the petition is not subject to the rule stated in Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 56 S.E.2d 828, infra, Tatum v. Clemones, 105 Ga.App. 221, 124 S.E.2d 425, infra, and other cases decided on demurrer to the effect that a plaintiff's actual or constructive knowledge, or means of knowing, of the conditions and dangers was equal to that of the defendant, barring recovery.

In addition, the petition is sufficient to withstand general demurrer for another reason. Even in the case of a trespasser or licensee, where the standard of care is less than in the case of an invitee (see Crosby v. Savannah Electric & Power Co., 114 Ga.App. 193, 150 S.E.2d 462 and Kahn v. Graper, 114 Ga.App. 572, 152 S.E.2d 10, supra), it is a familiar principle that there is a duty to use ordinary care to avoid injuring him after his presence and danger are actually known. See, e.g., Georgia Power Co. v. Deese, 78 Ga.App. 704, 707-708, 51 S.E.2d 724; Augusta Amusements, Inc. v. Powell, 93 Ga.App. 752, 755, 92 S.E.2d 720.

While the petition here does not allege that defendant's servants had actual knowledge during the course of the ride that plaintiff was injured and thus was in a position of peril, it does allege that when she began to experience pain she called out to the attendants to stop the cars but 'was not allowed or permitted to get off the ride until it came to an end and stopped at the same place where she boarded the ride originally,' and that 'although she did cry out and scream for the attendant to stop the ride or to slow the ride down the attendants, employees and servants of the defendant failed and refused to do so.' (Emphasis supplied). In the specifications of negligence it is charged that 'the defendant failed and refused to heed the call of plaintiff to reduce the speed of the car on which she was riding.' (Emphasis supplied). Although it is not specifically alleged that plaintiff called out that she was in paid or had been injured, we think these allegations are sufficient, as against general demurrer, to show that the servants of defendant had actual knowledge of plaintiff's peril and thus to raise the duty to exercise ordinary care for her safety, irrespective of any other duty owing and irrespective of any prior knowledge or means of knowing of danger on her part. Whether the attendants and servants in fact heard her cries in such a manner as to raise the jury, and whether the failure to stop or slow the cars constituted a breach of this duty, would ordinarily be questions for the jury. Accordingly the denial of the oral motion to dismiss in the nature of a general demurrer was not error.

3. The case takes on a different light on defendant's motion for summary judgment where plaintiff's deposition was specified as evidence. Plaintiff testified that the first time she felt as if something might be wrong with her was after she got off the ride. In regard to her calls to stop or slow, she testified that she screamed because the ride frightened her and that everyone else was screaming and squealing as they do on that kind of ride. When asked if she screamed and squealed like all the other people on the ride, she replied: 'Well, I guess I did.' When asked if she said anything or if she just squealed, she replied: 'Oh, I screamed for them to stop and slow the thing down and so did my date.' When asked if she thought the attendants even heard her with all the other screaming and squealing from the other patrons of the ride, she replied: 'I doubt it. I doubt it.'

Thus plaintiff has established that she screamed, not for the purpose of giving notice of an injury of which she was not even aware, but in company with her date and everyone else on the ride because of the thrill and exhilaration produced by that...