Foust v. Kinley

• Decision Date: 13 November 1962
• Docket Number: No. 50701,50701
• Citation: 254 Iowa 690,117 N.W.2d 843
• Parties: Wayne FOUST, a minor, by Ray Foust, his father and next friend, and Ray Foust, Appellants, v. George R. KINLEY, Ray Kinley and John F. Kinley d/b/a Airport Driving Range, Appellees.
• Court: Iowa Supreme Court

Page 843

117 N.W.2d 843

254 Iowa 690

Wayne FOUST, a minor, by Ray Foust, his father and next friend, and Ray Foust, Appellants, v. George R. KINLEY, Ray Kinley and John F. Kinley d/b/a Airport Driving Range, Appellees.

No. 50701.

Supreme Court of Iowa.

Nov. 13, 1962.

Rex Darrah, Des Moines, for appellants.

Whitfield, Musgrave, Selvy, Fillmore & Kelly, by James Lorentzen, Des Moines, for appellees.

MOORE, Justice.

This is a law action by Wayne Foust, a minor by his father Ray Foust, and Ray Foust to recover damages, including medical expenses, sustained by Wayne when struck by a golf club at defendants' driving range. At the close of plaintiffs' evidence the court sustained defendants' motion for a directed verdict. Plaintiffs have appealed from judgment thereon. We agree with the trial court.

I. In considering the propriety of a directed verdict for defendants the court gives plaintiffs' evidence the most favorable construction it will reasonably bear. Rule 344(f)(2), Rules of Civil Procedure, 58 I.C.A. adopted September 17, 1962.

The evidence is that on April 24, 1960 at about 5:45 P.M. Wayne Foust, age 14, went to the Airport Driving Range operated by defendants. He was accompanied by Eddie Donaldson, age 12 or 13, and Susan Donaldson, age 11. Wayne and Eddie paid 75cents to the only attendant present, each received a basket of balls, a conventional size golf club and went out to the driving area as each had done on prior occasions. The driving range is on the east side of Fleur Drive. Entrance thereto is through a small building from which the patrons go east a short distance to the long cement platform which from Exhibit 1, a photograph, appears to be approximately 3 1/2 feet wide. It lies from north to south and is divided into stalls from 8 to 9 1/2 feet in length. The balls are driven east into a large open field. At the south end of each stall is a feeder box, extending across the platform which serves as a divider for the stalls. It is 11 inches high and about 8 inches thick. The balls are put in this feeder box. They are automatically teed about a foot north of the box, a short distance from the east edge of the stall. Immediately to the north of the tee is a rubber mat on which the patron stands while making his drive (Wayne and Eddie were both right handed). From the north edge of the mat the bare cement platform extends to the next feeder box and stall, a distance of about three feet.

Eddie took the stall south of Wayne, deposited his balls in the feeder box and drove two or three balls before his club struck Wayne in the face resulting in the loss of several teeth.

Wayne while attempting to put his balls in his feeder box spilled them on the platform. Some went off the cement to the southeast near the east edge of Eddie's stall. While attempting to retrieve his golf balls Wayne was struck by the club swung by Eddie after driving a ball. There is a dispute in the evidence as to whether Wayne was in his own stall or in front of Eddie's when injured. He was bending over picking up balls and did not see Eddie's club just before being hit.

No instructions were offered to or requested by the boys. No warning signs were posted. No evidence was submitted of prior injury or misconduct of any person at the range.

Defendants' motion for directed verdict asserted plaintiffs had failed to sustain the burden of proving negligence, proximate cause and freedom from contributory negligence. It was sustained on all grounds by the trial court. Plaintiffs' only statement relied on for reversal is the court erred in directing a verdict.

Plaintiffs alleged defendants were negligent in failing to provide: (a) proper supervision, (b) proper shields, guards, or barriers between the areas used by patrons, (c) large enough area to prevent clubs reaching area used by other patrons, (d) an area for Wayne Foust which was safe from clubs swung by other minors and (e) to give proper warning of danger of being hit by golf clubs. They also claimed defendants were negligent in putting a dangerous instrumentality in the hands of a minor.

The principal argument is whether plaintiffs' evidence was sufficient to create a jury question on negligence.

II. It appears without dispute Wayne Foust was a business invitee of defendants. Defendants owed the duty to exercise reasonable care to have their premises reasonably safe for invitees. If not so, they had the duty to remedy the defect or danger or to warn the invitee who in the exercise of reasonable care did not know of the defect or danger. Nelson v. Langstrom, 252 Iowa 965, 970, 108 N.W.2d 58, 61; Robinson v. Fort Dodge Limestone Co., 252 Iowa 270, 275, 106 N.W.2d 579, 582; Vollmar v. J. C. Penney Co., 251 Iowa 1026, 1028, 103 N.W.2d 715, 716, and citations.

Plaintiffs' evidence does not establish any violation of this duty as it appears no hidden defects existed and Wayne Foust was fully aware of all of the conditions existing on the premises.

III. The law is well established that a proprietor of a place of public amusement or entertainment is held to a stricter account for injuries to patrons than the owner of private premises generally. He is not an insurer of the safety of patrons but owes to them only what, under the particular circumstances, is ordinary and reasonable care. He must guard them not only against dangers of which he had actual notice but also against those he should reasonably anticipate. Failure to carry out such duty is negligence. Priebe v. Kossuth County Agr. Assn., Inc., 251 Iowa 93, 99 N.W.2d 292; Dahna v. Clay County Fair Assn., 232 Iowa 984, 6 N.W.2d 843; Clark v. Monroe County Fair Assn., 203 Iowa 1107, 212 N.W. 163; Williams v. Mineral City Park Assn., 128 Iowa 32, 102 N.W. 783, 1 L.R.A.,N.S., 427. See also Annotations, 16 A.L.R.2d 912; 29 A.L.R.2d 911.

We are particularly concerned here with the duty owed by the operator of a place of amusement to protect patrons from injuries caused by acts of third parties.

The controlling principle is stated in section 348, Restatement, Torts, as follows:

'* * * possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have (a) discovered that such acts were being done or were about to be done, and (b) protected the members of the public by (i) controlling the conduct of the third persons, * * *.'

In Ruehling v. American Legion Pavilion, Inc., 255 Minn. 391, 96 N.W.2d 702, the court held the dance hall owner not liable to a patron injured by being knocked down by boys near the pavilion entrance. The court at 703, 704 of 96 N.W.2d, said:

'Basic to liability of a keeper of premises is that negligence is predicated upon what should have been reasonably anticipated and not merely upon what happened. As stated in Johnson v. Amphitheatre Corp., 206 Minn. 282, 285, 288 N.W. 386, 387:

"* * * It is true that the operator of a public amusement place is not an insurer of the safety of patrons and is not responsible for unanticipated dangers created by some one of such patrons to the injury of another. But he is obligated to use ordinary care * * *.'

'The standard of ordinary care to be exercised by the operator of a public amusement place is that which would be exercised by a reasonably prudent person under the same or similar circumstances and does not require the taking of precautionary measures to avert a danger which a reasonable person would not anticipate as likely to happen.'

The Minnesota court at page 705 of 96 N.W.2d said:

'Knight v. Powers Dry Goods Co., Inc., 225 Minn. 280, 30 N.W.2d 536, is a case very similar to the one at bar. There two detectives stopped a thief as he left defendant department store with stolen books. He quietly consented to accompany the detectives to the store office. Suddenly, while waiting for the elevator, the thief broke loose and ran, mowing down and injuring plaintiff. In reversing the verdict for plaintiff and ordering judgment for defendant, we relied upon the fact that, prior to his sudden charge, the thief had evidenced no indication of any forthcoming violent action. If the act of catching a thief with stolen goods is in and of itself no indication from which a proprietor could anticipate injury to other patrons, neither is a group of youths gathered about the doorway to a dancehall a fact from which injury to others is reasonably foreseen.'

In Fitzgerald v. Million Dollar Theatre, 61 Cal.App.2d 17, 141 P.2d 935, the court held a theatre proprietor was not liable to plaintiff injured while sitting in the theatre and accidentally kicked by another patron. No evidence of prior notice was submitted. The court at page 937 of 141 P.2d said:

'The case of Worcester v. Theatrical, etc., Corp., 28 Cal.App.2d 116, 119, 82 P.2d 68, 69, which was an action for damages for personal injuries brought by plaintiff, a patron of defendant's theatre, who was kicked by a sailor sitting behind her apparently asleep, but who was later found to be intoxicated--answers appellant's first point in the following language: 'There is no doubt that the respondent owed to the appellant a...