Beal v. Blumenfeld Theatres, Inc.

• Decision Date: 18 January 1960
• Citation: 177 Cal.App.2d 192,2 Cal.Rptr. 110
• Court: California Court of Appeals Court of Appeals
• Parties: Ruby BEAL, Plaintiff and Appellant, v. BLUMENFELD THEATRES, INC., a corporation; T & D Theatre, Defendants and Respondents. Civ. 18294.

Page 110

2 Cal.Rptr. 110

177 Cal.App.2d 192

Ruby BEAL, Plaintiff and Appellant, v. BLUMENFELD THEATRES, INC., a corporation; T & D Theatre, Defendants and Respondents.

Civ. 18294.

District Court of Appeal, First District, Division 2, California.

Jan. 18, 1960.

Smith, Parrish, Paduck & Clancy, Oakland, for appellant.

James C. Calkins, Jr., Alameda, for respondent.

DRAPER, Justice.

Plaintiff appeals from judgment of nonsuit entered in this action for personal injuries.

Plaintiff and her husband paid admission and entered defendant's theater. They walked up a ramp which led to a cross-aisle separating loge and balcony sections, and thence down some stairs in the center aisle to their loge seats. After about an hour, plaintiff went to the rest room, reaching the lobby over the same route by which she had entered. Then she again walked up the ramp and started down the stairs of the left aisle to return to her seat. An usherette stood at the head of the ramp, but did not offer or attempt to lead or escort plaintiff down the stairs. As plaintiff reached the third step, she saw a round, dark object which appeared to be a man's hat. She tried to avoid it, but, being in the process of taking a step, was unable to do so. She stepped on the object and fell, sustaining claimed injuries for which she seeks damages in this action. The theater usherettes carried flashlights and were instructed to use them to guide each patron to his seat. The usherettes were also required to keep the aisles and stairways clear of obstruction or of objects which might be hazards, and the lighting of patrons to their seats was in part to further this purpose and in part as a courtesy aid to patrons in the darkened theater.

The judgment of nonsuit can be affirmed only if, disregarding conflicting evidence and indulging all legitimate inferences in favor of plaintiff, there still is no evidence sufficiently substantial to support a verdict for plaintiff. Blumberg v. M. & T., Incorporated, 34 Cal.2d 226, 229, 209 P.2d 1.

Here an owner is sought to be held liable for injury to a business invitee caused by a dangerous or defective condition of the premises. The general rule is that where the dangerous condition is brought about by third persons 'then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.' Hatfield v. Levy Brothers, 18 Cal.2d 798, 806, 117 P.2d 841, 844. As a corollary, 'The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the...