Boucher v. Paramount-Richards Theatres

• Decision Date: 21 April 1947
• Docket Number: 18327.
• Citation: 30 So.2d 211
• Court: Court of Appeal of Louisiana — District of US
• Parties: BOUCHER v. PARAMOUNT-RICHARDS THEATRES, Inc., et al.

30 So.2d 211

BOUCHER v. PARAMOUNT-RICHARDS THEATRES, Inc., et al.

No. 18327.

Court of Appeal of Louisiana, Orleans.

April 21, 1947

Rehearing Denied June 9, 1947.

Writ of Certiorari Denied July 3, 1947.

Rosen Kammer, Wolff, Hopkins & Burke, of New Orleans, for appellants.

Felix O. Rousset, Tiche & Tiche, Samuel I. Rosenberg and Bernard Tiche, Jr., all of New Orleans, for appellee.

McBRIDE Judge.

Plaintiff Mrs. Clementine Boucher, widow of John W. Luthjens, on the evening of January 6, 1944, entered the Saenger Theatre in New Orleans, and after witnessing a motion picture exhibition left the theatre shortly after 7:00 o'clock, P. M. In emerging from the theatre, she left that portion thereof where the motion picture was shown, then crossed the inner foyer, and then went out of a door into the arcade which runs from Rampart Street to Basin Street, which is brilliantly lighted. Upon entering this arcade, she turned left and walked towards Rampart Street and when she reached a point in front of a popcorn stand she slipped and fell.

The arcades in front of the Saenger Theatre proper form the letter 'T', that is to say there is one arcade running from Rampart Street to Basin Street immediately in front of the theatre, and another arcade running from Canal Street towards the theatre proper, which latter arcade merges into the one running from Rampart Street to Basin Street. The arcade which runs from Rampart Street to Basin Street is level in the center, and going toward Rampart Street and beginning at a distance of approximately 44 feet from the Rampart Street sidewalk, it has a slope of about 1 inch to each foot. The flooring of the arcade is constructed of terrazzo which is separated into a pattern or contour by means of brass strips imbedded therein. terrazzo pavement or tiling is made of small marble scraps or particles imbedded in cement and then polished.

On the level portion of the arcade running from Rampart Street to Basin Street, the owner of the Saenger Theatre operates a popcorn vending stand where corn is popped, placed into receptacles and sold to the patrons of the theatre, and to other persons.

Plaintiff claims that she was seriously injured in her fall and brings this suit for $29,530.50 against Paramount-Richards Theatres, Inc., the owner of the Saenger Theatre, and its insurance carrier, American Mutual Liability Insurance Company, in solido. She alleges that she slipped on popcorn which was located on the floor of the arcade of the theatre near the popcorn machine. The charges of negligence imputed by plaintiff to the theatre operator are: the allowing of popcorn to remain on a sloping terrazzo floor in the vicinity of the popcorn machine, which floor had been waxed or polished to the extent that its surface was slippery, and in combination with the popcorn located thereon constituted a hazard to patrons of the theatre traversing the floor.

Defendants answered disclaiming liability and pleading contributory negligence on the part of plaintiff, in not seeing the popcorn (if there was any) on the arcade floor.

The matter proceeded to trial on the above issues and the lower court rendered judgment in favor of plaintiff and against the defendants for the sum of $5,500.00, with interest and costs. The defendants have taken an appeal from this judgment, and plaintiff has answered the appeal praying for an increase in the amount of the award to $10,000.00.

Plaintiff's counsel first contend that the theatre owner was guilty of negligence in maintaining the terrazzo floor without an abrasive substance mixed therein, claiming that the floor without abrasives constitutes a hazard to patrons of the theatre walking upon it. Counsel for defendants answer that contention claiming that terrazzo tiling or paving without an abrasive or other non-slip material mixed therein is the standard and customary type of terrazzo floor in use in this city, and that no abrasive or non-slip material is customary or necessary on a level surface, or on any surface that has an incline as slight as the one in the theatre arcade. The incline or ramp involved in this case has a slope of approximately 1 inch to each foot.

There is a mass of testimony in the record regarding the terrazzo surfacing. The testimony shows that terrazzo is a common and ordinary type of paving in arcades, entrance-ways, stores and even on the sidewalks and neutral ground of Canal Street, which is the principal street in this city.

Harold A. Levey, an engineer, who testified as an expert witness for plaintiff, agreed that terrazzo is in standard use in many arcades, hotels, business houses and places of that sort. David S. Barrow, an architect, a witness for plaintiff, testified respecting the provisions of the 1942 building code of the city of New Orleans in regard to terrazzo floors and ramps. This witness also made reference to Sec. 144 of the 1926 building code, which became effective on January 1, 1927. The provisions of the codes mentioned by the witness would in no wise apply to the floor involved in this case, as the terrazzo was placed in the arcade of the Saenger Theatre during the year 1926. Barrow further testified that he did not think it necessary to use abrasives in terrazzo where no inclined surface was involved.

Herbert A. Benson, an architect, George L. Ducros, a tile contractor, and Charles Davis, an architect, testified as experts for defendants and these witnesses were unanimous in their testimony that the floor in question is of standard construction and is neither hazardous nor dangerous.

In view of the testimony of the five experts, there is nothing which supports the contention of plaintiff that the arcade floors are in any degree dangerous.

This brings us to the question of whether plaintiff slipped on buttered popcorn. The manager of the theatre and the operator of the popcorn machine testified that a the time of plaintiff's accident the corn was popped dry, that is no butter, oil or other greasy substance was used, and there is no evidence before us which would indicate that the popcorn sold on the date of the accident was other than as described by them.

The evidence, however, clearly preponderates to the effect that there was some corn on the floor in the vicinity of the popcorn machine at about the spot where plaintiff fell, and that the accident was caused by that fact. A disinterested witness who was standing in line waiting to gain entrance to the theatre testified that at the time, and at about the spot where plaintiff fell, there was some popcorn on the floor, which she had noticed before the accident. Another witness testified that after plaintiff's fall particles of popcorn were adhering to the heel of Mrs. Luthjens' shoe. We have no doubt that the plaintiff did step on popcorn and fell because of that fact.

Plaintiff's counsel contend that the very highest degree of care was required of the theatre owner under the circumstances. They argue that the popcorn in combination with the smooth terrazzo floor constituted a hazard which was brought about by the activity of the theatre operator in selling popcorn, and that no presumption should be favorable to the defendants. They contend that in view of the fact that popcorn was sold in the arcade, the theatre's duty was to make it impossible for accidents to occur, and that if an accident did occur under the circumstances the theatre is liable.

Counsel cite the case of Welcek et al. v. Saenger Theatres Corp. et al., La.App., 5 So.2d 577, 579. In that case the plaintiff, who was a patron of a theatre, was struck by a bottle dropped or thrown from a second story balcony, and counsel quote the following language used by the court:

'The effort to hold the operator responsible in damages herein is predicated upon the very exacting laws governing the duties and obligations of theatre operators generally to their patrons. Such duties and obligations are well defined by law. They are likened to those imposed upon carriers and innkeepers, but are not quite so strict or exacting. The following statement of the rule of law applicable to operators of theatres, shows, etc., which has been referred to, and, in whole or part, adopted by several decisions of this and other appellate courts, appears in 62 C.J., pages 867-868, paragraphs (53) D and (55) b, to-wit:

"It has very generally been declared that the proprietor of a theater or other place of public amusement, in order to bring himself within the requirement of the general rule heretofore stated, must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent man. However, ordinary or reasonable care is always a relative term, and no absolute test can be given as to what constitutes the exercise thereof by a proprietor of a place of public amusement. This is necessarily so for the reason that due or ordinary care varies with the situation and circumstances in each particular case, although the standard of care remains the same. The care must be proportionate to the danger known or reasonably to be apprehended, and commensurate with the circumstances and risk of the situation, to protect patrons against injury. The greater the known or real apprehended danger, the greater the care required."

Counsel also cite West v. Seigel Theatre et al., La.App., 200 So. 339; Jackson v. Saenger-Ehrlich Enterprises, Inc., La.App., 175 So. 689, and Master v. Alsina, La.App., 15 So.2d 660, 661 the latter case having been decided by this court and in which is found the following language: 'It is a manifest, from a recitation of the pleadings in this case, that the question involved for determination is purely one of fact, as the law of the case is well settled. ...