Dockery v. World of Mirth Shows, Inc.

• Decision Date: 19 May 1965
• Docket Number: No. 451,451
• Citation: 264 N.C. 406,142 S.E.2d 29
• Parties: Marta Melinda DOCKERY, By Her Next Friend, E. T. Pullen, III, v. WORLD OF MIRTH SHOWS, INC., and Michael Dembrosky, d/b/a M. D. Amusement Company.
• Court: North Carolina Supreme Court

Page 29

142 S.E.2d 29

264 N.C. 406

Marta Melinda DOCKERY, By Her Next Friend, E. T. Pullen, III, v. WORLD OF MIRTH SHOWS, INC., and Michael Dembrosky, d/b/a M D. Amusement Company.

No. 451.

Supreme Court of North Carolina.

May 19, 1965.

J. F. Motsinger and Deal, Hutchins & Minor, Winston-Salem, for plaintiff.

R. M. Stockton, Jr., and W. F. Maready, Winston-Salem, for World of Mirth Shows, Inc. Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, Winston-Salem, of counsel.

MOORE, Justice.

Defendant Mirth asserts that the negligence, if any, giving rise to plaintiff's fall and injuries consisted of acts and omissions of Dembrosky, an independent contractor, and the conduct of plaintiff in standing while the Scrambler was in motion.

In response to an issue submitted by the court, the jury determined that Dembrosky was not an agent or employee of Mirth. An employer is not ordinarily liable for injury resulting from dangerous conditions collaterally created by the negligence of an independent contractor. But where it is reasonably foreseeable that harmful consequences will arise from the activity of the contractor unless precautionary methods are adopted, the duty rests upon the employer to see that these precautionary measures are adopted and he cannot escape liability by entrusting this duty to the independent contractor. The contractor may be liable for the same want of due care in not taking the necessary precautions, for the omission of which the employer is liable; but as to the employer, the liability is direct, and not derivative, since public policy fixed him with a nondelegable duty to see that the precautions are taken. Evans v. Rockingham Homes, Inc., 200 N.C. 253, 17 S.E.2d 125.

The presiding judge was of the opinion that the alleged relationship of employer and independent contractor between Mirth and Dembrosky did not necessarily absolve Mirth from liability under the facts and circumstances of the instant case, and he instructed the jury as follows with respect to the issue (third issue) of Mirth's negligence:

'If you find from the evidence and by its greater weight the Scrambler was such a ride as was likely to cause injury to passengers unless due care was exercised in its maintenance and operation, in view of the nature of the device, then it would be the duty of the defendant, World of Mirth Shows, to inspect the Scrambler in order to see that it was maintained in a reasonably safe condition, to supervise the operation of the Scrambler to such an extent as to see that it was operated with due care, and to see that the operator would check the gates or bars to the seats to see that they were securely latched and fastened and that the plaintiff was safely seated before starting it, and * * * these duties of inspection and supervision by World of Mirth, the defendant, could not be delegated to Dembrosky, his agents or employees, whether or not he was a concessionaire or an independent contractor; that such duties of supervision would remain the responsibility of the defendant, World of Mirth Shows, Incorporated, and such failure by Dembrosky would be attributed as a matter of law to World of Mirth, Incorporated, the defendant, and that such failure of World of Mirth to inspect and supervise was a proximate cause of plaintiff's injuries, then in that event the jury would answer the third issue 'Yes."

Defendant Mirth questions the applicability of the principles set out in the charge to the evidence presented. Whether the principle of nondelegable duty is applicable to the facts and circumstances, is an important consideration also in passing on Mirth's motion for nonsuit.

It is generally held that the owner of a place of amusement having a variety of attractions and devices or a general concessionaire actually engaged in the conduct of such place of amusement cannot avoid liability for injuries to patrons resulting from the defective or dangerous condition of the premises or from defective amusement apparatus or devices on the ground that such premises or devices are under the control of and used by a sub-concessionaire. Liability of such owner or general concessionaire is predicated either upon his nondelegable duty to maintain a reasonably safe place for the patrons, in accord with which he must answer for the negligence of the sub-concessionaire or the latter's employees in rendering the premises and devices unsafe, or merely upon the general ground that such owner or general concessionaire is responsible for his breach of duty to keep the premises, including the devices, reasonably safe, without reference to any separate act or omission of the subconcessionaire. While there are some decisions to the contrary, the greater weight of authority is that such owner or general concessionaire will not be relieved from responsibility because the amusement or device is provided and conducted by the sub-concessionaire, provided it is of a character that would probably cause injury unless due precautions are taken to guard against it; and this duty applies not only to the condition of the premises and device, but also to the management and operation where the device is of a character likely to produce injury unless due care is observed in its operation. The duty is a continuing one. 4 Am.Jur.2d, Amusements and Exhibitions, s. 64, pp. 186-8; 145 A.L.R. Anno.--Amusement--Negligence of Concessionaire, pp. 962-980; Restatement of the Law, Torts (1934), Vol. II, s. 415, pp. 1122-6; Richmond & M. Ry. Co. v. Moore's Adm'r., 94 Va. 493, 27 S.E. 70, 37 L.R.A. 258 (1897); Hollis v. Kansas City, Mo., Retail Merchants Ass'n, 205 Mo. 508, 103 S.W. 32, 14 L.R.A., N.S., 284 (1907); Stickel v. Riverview Sharpshooters' Park Co., 250 Ill. 452, 95 N.E. 445, 34 L.R.A., N.S., 659 (1911); Turgeon v. Connecticut Co., 84 Conn. 538, 80 A. 714 (1911); Hartman v. Tennessee State Fair Association, 134 Tenn. 149, 183 S.W. 733 (1916); Johnstone v. Panama-Pacific International Exposition Co., 187 Cal. 323, 202 P. 34 (1921); Szasz v. Joyland Co., 84 Cal. 259, 257 P. 871 (1927); Birmingham Amusements v. Turner, 221 Ala. 242, 128 So. 211 (1930); Engstrom v. Huntley, 345 Pa. 458, 26 A.2d 461 (1942); McCordic v. Crawford, 23 Cal 1, 142 P.2d 7 (1943); Bauer v. Saginaw County Agricultural Society, 349 Mich. 616, 84 N.W.2d 827 (1957); Priebe v. Kossuth County Agricultural Ass'n, Inc., 251 Iowa 93, 99 N.W.2d 292 (1959). The cases here cited are only a few of the many cases found in the reports.

Matters of importance in determining existence and extent of the duty of such owner or general concessionaire to inspect premises and devices and to exercise oversight and supervision of operation of amusements are: Invitation to the public to attend--one, who expressly or by implication invites others to come upon the premises, has the duty to be reasonably sure that he is not inviting them into danger and to that end must exercise reasonable care for their safety. Richmond & M. Ry. Co. v. Moore's Adm'r, supra; Engstrom v. Huntley, supra. Failure to advertise does not relieve them of duty if they share in the proceeds. McCordic v. Crawford, supra. The duty is assumed by them when they retain and exercise a measure of control. Hollis v. Kansas City, Mo., Retail Merchants Ass'n, supra; Lakeside Park Co. v. Wein, 111 Colo. 322, 141 P.2d 171 (1943). Where the general operation of the place of amusement is admitted by the owner or general concessionaire, the injured patron is not required to show the precise arrangement between the owner or general concessionaire and the sub-concessionaire. Engstrom v. Huntley, supra. There is responsibility only for perils discoverable by ordinary and reasonable inspection and oversight. Hiatt v. Ritter, 223 N.C. 262, 25 S.E.2d 756; Kuhn v. Carlin, 196 Md. 318, 76 A.2d 345 (1950). As to the duty with respect to the methods of operation of apparatus and devices, the owner...