Corbitt v. Ringley-Crockett, Inc.

• Decision Date: 27 March 1973
• Docket Number: RINGLEY-CROCKET,INC
• Citation: 496 S.W.2d 914,75 A.L.R.3d 432
• Parties: James J. CORBITT, b/n/f and father Maurice Corbitt, and Maurice Corbitt, Individually, Appellees, v., et al., Appellants.
• Court: Tennessee Court of Appeals

Page 914

496 S.W.2d 914

75 A.L.R.3d 432

James J. CORBITT, b/n/f and father Maurice Corbitt, and Maurice Corbitt, Individually, Appellees, v. RINGLEY-CROCKETT, INC., et al., Appellants.

Court of Appeals of Tennessee, Western Section.

March 27, 1973.

Rehearing Denied April 27, 1973.

Certiorari Denied by Supreme Court July 2, 1973.

Fred H. Cagle, Jr., Knoxville, for appellants.

Joseph J. Levitt, Jr., William P. O'Neil, Knoxville, for appellees.

NEARN, Judge.

This is a defendants' appeal from an adverse jury verdict.

Plaintiff, James J. Corbitt, a minor 17 years of age at the time of his injuries, attended the James Brown 'rock' or 'soul' performance at the Civic Coliseum on October 3, 1970, in Knoxville, Tennessee. While so attending, it became necessary that plaintiff use the restroom facilities at the Coliseum. Plaintiff was beaten and robbed after entering the men's restroom.

Suit was filed by Maurice Corbitt, father and next friend of James J. Corbitt, for his son's personal injuries and for medical expenses incurred by the father. Judgment was sought against Ringley-Crockett, Inc., the promoter of the performance, and against the City of Knoxville which municipality owned the Coliseum and had leased it to Ringley-Crockett, Inc. for the performance.

The Complaint alleged that it was the duty of the defendants to maintain order and to protect the persons and property of the patrons who paid the admission fee for the entertainment. Further, that defendant Ringley-Crockett, Inc., by the terms of its lease agreement with the Coliseum authorities, had agreed to furnish the necessary police protection to protect patrons; but that such duty was a non-delegable one and consequently both defendants would be liable for the negligence involved. The principal alleged negligence of the defendants was that they knew, or by the exercise of ordinary care should have known, that there would be numerous unruly persons attending the performance and that they failed to see to it that the halls and approaches to the Auditorium and especially the restrooms, were adequately or reasonably patrolled or guarded.

The defendants averred that the premises were adequately patrolled or guarded and denied all negligence.

Defendants' motions for directed verdicts at the close of proof were overruled and the jury returned a verdict for the minor in the amount of $2,000.00 and for the father in the amount of $1,000.00.

Eight Assignments of Error are made in this Court. The first five, collectively, raise but one Assignment of Error and that is: The proof is insufficient, as a matter of law, to warrant a jury finding favorable to the plaintiff and that Judge should have so preemptorily instructed the jury. The remaining three Assignments of Error are addressed to the charge of the Court.

The plaintiff's proof showed that on the day of the assault, plaintiff who had purchased a ticket to the James Brown performance attended same in the company of friends. The proof also shows that the audience was racially mixed with a predominance of those of the Negro race in attendance. Plaintiff is of the Caucasian race. ¹ Plaintiff testified that after he and his friends had obtained their seats, it became necessary for plaintiff to use the restroom. This was shortly before intermission time. Plaintiff proceeded to the restroom and upon entering noticed three Negro young men in the restroom, ostensibly washing their hands. Plaintiff testified that he felt no apprehension of danger nor was concerned about the presence of others. As the plaintiff entered one of the stalls in the restroom, he was struck on the head and knocked to the floor. As plaintiff attempted to crawl out of the stall, he momentarily lost consciousness and when he regained consciousness, there were two Negroes standing in front of him who told him to empty his pockets or they would shoot him. Plaintiff emptied his pockets of the seventy-five cents that was in them; his assailants picked up the money and then kicked him in the face. Whereupon, plaintiff again momentarily lost consciousness and upon regaining consciousness found himself being held by two police officers and found that two of his assailants were still in the restroom. According to the plaintiff's testimony, the entire assault and robbery took place in just a matter of minutes.

Both the plaintiff and his witnesses testified that they had never before heard of occurrence of an assault and robbery in the restroom area of the Coliseum. The defendants' proof showed that no such occurrence had ever before taken place in the Coliseum regardless of the racial make-up of the crowd, although on occasions at athletic events members of the audience, regardless of race, might have differences of opinion which might result in fisticuffs between the disagreers, or occasionally a drunk might get boisterous or rowdy. Also, no such occurrence as that complained of has ever happened at any James Brown performance.

Regarding the number of police or special officers on duty at the Coliseum, the plaintiff and his witnesses testified that prior to the assault on the plaintiff, they noticed none or few on duty. In other words, if the officers were present, they didn't see them. However, it is admitted that officers were present in the restroom almost immediately after the assault. The proof of the defendants is unimpeached that there were at least seventeen officers on duty that night roaming the Coliseum, but none were permanently stationed in the restrooms, although periodic inspections were made thereof by the officers on their rounds.

Much of the proof presented concerns how the investigation of the robbery was 'bungled' (plaintiff's) by the officers and how it was properly (defendants') handled by the officers. We are of the opinion that this proof is entirely immaterial to the issue of defendants' alleged negligence in allowing plaintiff to be waylaid and robbed. Also, there is proof that after plaintiff left the Coliseum to be taken to the hospital, the audience began dancing in the aisles and became exuberant, but no injuries were reported. Again, we think this proof is entirely immaterial to the issue. Neither the plaintiff nor anyone else was injured by a boisterous crowd which defendant failed to control. Plaintiff was injured by the sudden criminal acts of third parties.

The proprietor of a public amusement place owes his patrons a duty to use ordinary care to protect them from defects in the premises and to use ordinary care to protect them from other patrons or third persons. Brodie v. Miller (1940 E.S.), 24 Tenn.App. 316, 143 S.W.2d 1042. Whenever the injuries are the result of the acts of another, operators of places of amusement are not liable for such acts and resulting injuries in the absence of a showing of timely notice of the situation creating the danger. Ford v. Brandan (1962 E.S.), 51 Tenn.App. 338, 367 S.W.2d 481.

In 29 A.L.R.2d commencing at page 911 under the heading 'Liability of owner or operator of theater or other amusement for assault on patron by another patron' will be found an excellent annotation on the subject. From a study of the reported cases, it would seem that in those cases where there is an unprovoked assault, committed without warning, by third persons, the owner is not liable for the injuries so sustained. We are of the opinion that such is the law of this State as evidenced by Brodie v. Miller and Ford v. Brandan, supra. This does not mean that the owner will automatically escape liability in every case of sudden assault on a patron by a third party. Even though the assault be sudden, if the owner could reasonably anticipate such an assault under the facts and fails to attempt to prevent it, he may be held liable. See Brodie v. Miller, supra.

Because an act is committed suddenly, it does not necessarily follow that it was committed without warning. The firing of a pistol takes but an instant, but in many cases there are ample warnings before the actual violence takes place.

In those cases such as Rawson v. Massachusetts Operating Co., 328 Mass. 558, 105 N.E.2d 220, 29 A.L.R.2d 907, wherein recovery against the owner of a place of amusement has been allowed for injuries sustained by a patron at the hands of a third party, there is proof that for a considerable period of time a warning of sone sort of the danger had manifested itself and the owner, therefore, knew or should have known of the danger and done something to avoid the assault and protect the patrons. We are unable to find any case where recovery has been allowed for injuries willfully perpetrated by a third party without any type of warning whatsoever. If we were to find such a case, we would not be persuaded by it.

So, the question that will determine the first five Assignments of Error is whether or not there is any proof in this record from which it can be said from the facts that the owner or lessee of the Coliseum in Knoxville reasonably knew or should have known of the probability of an occurrence such as the one which caused plaintiff's injuries. We are of the opinion there is not.

In order for plaintiff to recover in this case, the proof must be such so that it can be said that it was reasonably foreseeable by the defendants that the plaintiff would be waylaid and robbed in the restroom. Reviewing the proof in the light most favorable to plaintiff as we must, D. M. Rose & Co. v. Snyder (1947), 185 Tenn....