Gibson v. Shelby County Fair Ass'n, 47674

• Citation: 44 N.W.2d 362,241 Iowa 1349
• Decision Date: 17 October 1950
• Docket Number: No. 47674,47674
• Parties: GIBSON v. SHELBY COUNTY FAIR ASS'N et al.
• Court: United States State Supreme Court of Iowa

Page 362

44 N.W.2d 362

241 Iowa 1349

GIBSON v. SHELBY COUNTY FAIR ASS'N et al.

No. 47674.

Supreme Court of Iowa.

Oct. 17, 1950.

Rehearing Denied Dec. 18, 1950.

Bennett Cullison and Fred Louis, Jr., of Harlan, for appellant.

G. O. Hurley, and Hines & Higgins, all of Harlan, for appellees.

MULRONEY, Justice.

Max Gibson, age 17, was a spectator at a 'hot rod' race held at the Shelby County Fair Grounds in Harlan, Iowa. He was injured when struck by a wheel that became detached from a racing car. In his suit, by his father and next friend, against the defendant fair association corporation and its directors, the trial court sustained defendants' motion to dismiss. The plaintiff elected not to amend and he appeals from the judgment of dismissal of his petition.

The appellant's digest of the petition, motion and ruling of the trial court, which was accepted by the appellees, with some minor additions which we have included, will be used for a preliminary statement of the case.

Plaintiff alleged that (1) the defendants are the owners of a fair grounds devoted to uses of public amusement upon which they maintained a race track, constructed for the purpose of horse racing, with various barriers, fences, bleachers, grandstand and other appurtenances, (2) that the defendants, with knowledge of the purpose and character of the event intended, leased, licensed and consented that the property be used by another for the purpose of conducting thereon a public exhibition of a 'hot rod' race to which the public was to be invited to attend as invitees, (3) that the aforesaid premises and appurtenances were wholly unsuitable for such purposes, which condition was known by the defendants, (4) that plaintiff attended said race as an invitee and went onto the premises at a place near the track where the public was invited and permitted to be (it is not alleged he was in the grandstand) (5) that a wheel from one of the racing cars participating therein became detached from the vehicle and struck plaintiff, (6) causing a fracture of the fifth cervical vertebrae and resulting in a complete, total and permanent bodily paralysis.

Defendants moved that the petition be dismissed because (1) it does not allege any actionable negligence of the defendants which could be construed as a proximate cause in that it affirmatively appears that the injuries were not caused by any defect in the premises but by the breaking off of a wheel from a motor vehicle in a race sponsored by the lessee, (2) does not allege nonperformance of any duty owed by the defendants to the plaintiff, (3) and that the petition affirmatively shows that the injuries were caused by breaking off of a wheel in a race sponsored by another without any allegation that he, together with the defendants were joint venturers, (4) and that it affirmatively appears that there was a safe place, namely, a grandstand, and plaintiff failed and refused to avail himself of the use of said grandstand.

The court sustained the motion to dismiss because (1) the petition failed to state that the defendants and their lessee were engaged in a joint venture, (2) is insufficient to support a claim that there was a defect in the defendants' premises which could be said to be actionable negligence and (3) the allegations of the petition do not support the claim that any act or thing done by the defendants was the proximate cause of the injury.

I. When premises are leased for a public use the owner is charged with liability if a member of the public, rightfully on the premises, is injured because of a defective or dangerous condition that was known to the lessor or by reasonable inspection might have been known at the time of leasing. Restatement Torts, sec. 359; Larson v. Calder's Park Co., 54 Utah 325, 180 P. 599, 4 A.L.R. 731; Arnold v. State, 163 App.Div. 253, 148 N.Y.S. 479; Barrett v. Lake Ontario Beach Imp. Co., 174 N.Y. 310, 66 N.E. 968, 61 L.R.A. 829; Oxford v. Leathe, 165 Mass. 254, 43 N.E. 92; Junkerman v. Tilyou Realty Co., 213 N.Y. 404, 108 N.E. 190, L.R.A. 1915 F. 700; Sulhoff v. Everett, 235 Iowa 396, 16 N.W.2d 737.

In Junkermann v. Tilyou Realty Co., supra [213 N.Y. 404, 108 N.E. 191], Justice Cardozo, speaking for the New York Court of Appeals stated:

'We may say that those who enter a structure designed for public amusement are there at the invitation, not only of the lessee who maintains it, but also of the lessor who has leased it for that purpose, and that the latter's liability is merely an instance of the general rule which charges an owner of property with a duty toward those whom he invites upon it. (Citing cases.) We may say more simply, and perhaps more wisely, rejecting the fiction of invitation, that the nature of the use itself creates the duty, * * *. Whatever the underlying principle that explains the rule, the rule itself is settled.'

In Barrett v. Lake Ontario Beach Imp. Co., supra [174 N.Y. 310, 66 N.E. 969], the court stated the rule as follows:

'If the premises are rented for a public use for which he (the lessor) knows that they are unfit and dangerous, he is guilty of negligence, and may become responsible to persons suffering injury while rightfully using them.'

The question here is whether the plaintiff's petition states a cause of action under the above rule. We do not understand that defendants question the above rule for in their brief they state: 'In final analysis, the defendants' liability, if any must be predicated on the fact that they participated in the promotion and management of the race or upon their liability as landlord for leasing premises so defective that they could not be safely used for the express purpose of the lease, neither of which allegations are in the petition.' It can be admitted there is no allegation in the petition that the defendants 'participated in the promotion or management of the race' but it is not so clear that the petition fails to allege that the premises were 'so defective that they could not safely be used' for hot rod racing.

Defendants argue that there was no case of defective premises pleaded for a defect in the premises ...