Blizzard v. Fitzsimmons
| Decision Date | 26 October 1942 |
| Docket Number | 34918. |
| Citation | 10 So.2d 343,193 Miss. 484 |
| Court | Mississippi Supreme Court |
| Parties | BLIZZARD v. FITZSIMMONS. |
Wallace & Greaves, of Gulfport, for appellant.
Gaston H. Hewes and Bidwell Adam, both of Gulfport, for appellee.
Appellant who will be called the defendant, operated a public skating rink in the City of Gulfport. A specified and exclusive period of time on each Saturday morning was set aside for the accommodation of children. On the Saturday morning here involved appellee, who will be called the plaintiff, appeared and paid his admission fee of ten cents, which fee included the use of a suitable pair of skates. Plaintiff was a healthy and intelligent boy approximately nine years of age. Although he had frequently seen children skating on the sidewalks and elsewhere, he had never himself skated, but of this he did not inform defendant's agents in charge nor did the agents make any inquiry in that regard. Upon attempting to skate, the plaintiff fell, and upon arising and renewing the attempt he fell again. According to the evidence, he did not at any time succeed in taking as much as two or three steps without a fall thereupon occurring; but plaintiff persisted nevertheless in his attempts until he had fallen in close succession some forty to fifty times. When having suffered this long succession of falls, plaintiff began to cry whereupon for the first time one of defendant's agents came to his rescue and assisted him from the floor.
Plaintiff was then taken home and put to bed where he remained thirteen days, when he was removed to the hospital where an operation was performed upon his hip. The surgeon, as a witness explained that there is present in the human body a certain germ which is likely to be stirred into activity by repeated trauma, its activity being manifested by attack on the bone at the point where the repeated trauma occurs, and that in children less than twelve years of age this likelihood in cases of repeated trauma will become a probability. Plaintiff remained in the hospital some three months, and is now an inmate of a crippled children's home.
On the opening question of liability, there is brought into view two well established rules. One is that a person who participates in the diversion afforded by an amusement or recreational device accepts, and assumes the risk of, the dangers that adhere in it so far as they are obvious and necessary. 4 Shearman & Redfield on Negligence, Revised 1941 Ed., § 647, p. 1566. And the other is that the proprietor engaged in the business of providing public recreation or amusement must exercise a reasonable degree of watchfulness to guard against injuries likely to happen in view of the character of the amusement. Meridian Amusement Concession Company v Robinson, 188 Miss. 136, 193 So. 335.
Under the first of the above rules, the proprietor of a skating rink in a large municipality, where paved sidewalks abound, is entitled to assume, when a healthy boy of nine years appears and applies for the privilege to skate, that the boy knows how to skate and is reasonably well able to take care of himself in that respect, and if in any view the proprietor is to be charged with any responsibility to him as one who cannot skate, the proprietor must first be informed that the boy is wholly without experience as a skater, and as we have already mentioned, no such information, so far as the record shows, was given the proprietor, or any of her agents, when the plaintiff herein appeared and attempted to skate.
If, then, any liability is to attach against the proprietor on account of the happenings here, it must be because her agents in charge did not take the boy from the floor or give him any assistance after he had suffered falls in a sufficient number or in such manner that those agents saw thereby, or should have seen, under their general duty of watchfulness, that the boy was helpless to skate unaided, as he was persisting in the attempt to do, and that his continued efforts would in all probability result in further falls in repeated succession, as in fact did result.
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