Augusta Amusements, Inc. v. Powell

• Decision Date: 11 April 1956
• Docket Number: Nos. 36162,No. 2,36163,s. 36162,2
• Citation: 93 Ga.App. 752,92 S.E.2d 720
• Parties: AUGUSTA AMUSEMENTS, Inc. v. Roger G. POWELL, by Next Friend. AUGUSTA AMUSEMENTS, Inc. v. A. R. POWELL
• Court: Georgia Court of Appeals

Page 720

92 S.E.2d 720

93 Ga.App. 752

AUGUSTA AMUSEMENTS, Inc. v. Roger G. POWELL, by Next Friend.

AUGUSTA AMUSEMENTS, Inc. v. A. R. POWELL.

Nos. 36162, 36163.

Court of Appeals of Georgia, Division No. 2.

April 11, 1956.

Syllabus by the Court

The owner or occupier of land owes the duty to invitees coming thereon of keeping the premises and approaches safe for their use. While this duty to exercise ordinary care for the safety of an invitee is greater when the latter is a child of tender years, yet such owner is not an insurer of the safety of the child, and accordingly is not liable for injuries resulting solely from the conduct of the child in misusing otherwise safe premises, which misuse by the child was unknown to the owner.

These cases are here on exception to the overruling of general demurrers to the petitions, one of which was filed by A. R. Powell, seeking damages for loss of services by reason of injuries sustained by his infant son, Roger Powell while attending a moving picture theatre operated by the defendant, Augusta Amusements, Inc., and the other by Roger Powell by next friend, seeking recovery on behalf of the minor plaintiff. The petitions allege in substance that patrons of the theatre view the entertainment from seats on the first floor; that there is a second floor balcony on which is located a toilet; that the floors are connected by a stairway, which goes up from the first floor lobby to a landing, then at right angles from the landing runs up to the balcony floor; that on the right side of the stairway is a balustrade 24 inches high, topped by a runner, 2 inches thick and 5 inches wide, painted reddish orange, highly polished, and enticing to children; that the angle of the stairway makes a well, at the bottom of which is a drinking fountain; that Roger Powell, a child of 7 years, purchased a ticket, went in and viewed the show, and before leaving went up the stairs to the toilet. Thereafter he mounted the balustrade to peer into the well and to slide down the balustrade on his stomach, with his head and arms extended out over the stair well and his feet dangling over the stairs, and in this position he lost his balance and fell, striking his head on the drinking fountain and sustaining severe and permanent injuries.

A duty on the part of the defendant to guard against injuries of this type is sought to be shown by the following allegations of the petition: 'Children are accustomed in a spirit of adventure to sliding down said rail, and defendant maintains help and assistants to caution and warn children about sliding down and venturing on said balustrade; but, on November 30, 1954, defendant did not have anyone on the lookout and on duty to protect small children riding said rail. Roger Powell was a small boy 7 years of age and an invitee in defendant's theater, and it became and was the duty of the defendant to exercise ordinary care and diligence, considering his age, and to provide a safe means for him in the use of the stairway rather than to maintain such a stairway with an open well and exposed runway, alluring and attractive to children, and a place down which to slide. Defendant knew that children of petitioner's age and experience were accustomed to using said balustrade to slide down, and defendant knew of the danger incident, and it became and was defendant's duty to have someone at the time in question to guard and protect petitioner and any other child or children from using said balustrade to slide down, or to be used as a place from which children from the top of the balustrade could look into the well.'

Fulcher, Fulcher & Hagler, J. Walker Harper, Augusta, for plaintiff in error.

Pierce Brothers, R. William Barton, Augusta, for defendant in error.

TOWNSEND, Judge.

Code, § 105-401 provides as follows: 'Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.' The infant plaintiff here, having according to the allegations of the petition come upon the defendant's premises by means of purchasing a ticket to see a movie, came in the usual course of the defendant's business, and was, accordingly, an invitee of the defendant. McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843. It must be noted, however, that the petition alleges no negligence against the defendant in its failure to keep the premises safe--that is, it alleges no defect in the stairway or balustrade, and seeks to predicate negligence solely upon the defendant's failure to have a person on hand to keep the child from climbing upon and sliding down the bannisters on this particular occasion, a duty which it in turn seeks to raise by allegations that the defendant knew that children did slide down the bannisters, and that it maintains help and assistance to caution and warn children against this practice. Code, § 105-204 provides as follows: 'Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.' As applied to this case, this Code section would relate to that degree of care which the child should be required to exercise for his own safety, and, as to a child of seven years, the question would be one for the jury to decide. Mayor & C. of Madison v. Thomas, 130 Ga. 153(3), 60 S.E. 461. As to the duties of adults toward children, the rule of law is that children of tender years are entitled to a degree of care proportioned to their ability to foresee and avoid perils which may be encountered, Lee v. Georgia Forest Products Co., 44 Ga.App. 850, 852, 163 S.E. 267; that by reason of this 'due care' or 'ordinary care' to avoid injury to another may involve a greater duty owed to small children lawfully upon premises than to older persons, Etheredge v. Central of Georgia Ry. Co., 122 Ga. 853, 50 S.E. 1003; and accordingly the degree of care may vary with the capacity of the invitee. But, regardless of the age or capacity of the injured person, if there is no breach of any legal duty on the part of the defendant toward such person, there can be no legal liability. As stated in Atlanta & West Point R. Co. v. West, 121 Ga. 641, at page 645, 49 S.E. 711, at page 713, 67 L.R.A. 701: 'Infancy or want of mental capacity on the part of the plaintiff is often very material where the defense calls in question the plaintiff's own diligence. In other words, where the defendant has been negligent, and claims that the plaintiff could, by the exercise of due care, have avoided the injury, or that the plaintiff did not use due diligence to lessen the damages, or that plaintiff's negligence contributed to the injury, then the plaintiff's infancy or mental capacity is material. Whenever the plaintiff's diligence is under investigation, his mental capacity is relevant, as will be seen in many decisions in this and other states. In investigating the diligence of the defendant, the plaintiff's infancy or evident lack of mental capacity may sometimes become relevant as an element of notice to defendant of the plaintiff's peril. But in determining the...