Gray v. Mobile Greyhound Park, Ltd.
Decision Date | 25 May 1979 |
Parties | Esther GRAY v. MOBILE GREYHOUND PARK, LTD., a partnership composed of Franklin D. Brown, et al. Max GRAY v. MOBILE GREYHOUND PARK, LTD., a partnership composed of Franklin D. Brown, et al. 77-671, 77-672. |
Court | Alabama Supreme Court |
Richard Bounds and Anthony L. Cicio of Cunningham, Bounds, Byrd, Yance and Crowder, Mobile, for appellants.
Michael D. Knight of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
These are appeals by Max and Esther Gray, plaintiffs below, from jury verdicts in favor of defendant, Mobile Greyhound Park, Ltd. Mrs. Gray sued for personal injuries sustained when she slipped and fell in the grandstand area of defendant's dog track. Her husband claimed damages for medical expenses and loss of consortium.
On March 22, 1976, Max and Esther Gray, along with their son Terry, attended the dog track owned and operated by Mobile Greyhound Park, Ltd. They paid a general admission fee and were admitted to the grandstand area of the facility at approximately 7:00 p. m., prior to the start of the races. When the Grays entered the grandstand area, it was substantially free of litter. It had been thoroughly cleaned that morning.
The defendant had no employee in the grandstand area who was assigned the task of cleaning the floor during the races; there were two full-time restroom attendants either in or near the grandstand area restrooms throughout the evening. Additionally, there were 25 to 30 trash receptacles in the grandstand area; and defendant's employees in the area were instructed to report safety hazards to the dog track's maintenance personnel.
During the course of the evening's races, there was a gradual accumulation of debris on the floor of the grandstand area which consisted of ticket stubs, paper, racing programs, plastic beverage cups and assorted other trash. This accumulation was a normal occurrence during racing events, largely because the spectators did not utilize the available trash receptacles.
At trial, Mrs. Gray testified as follows:
Shortly after the 6th dog race of the evening, at approximately 10:00 p. m., Mrs. Gray slipped and fell on a plastic cup near the winning ticket window. She had been to this same row of windows earlier that same evening but had not noticed the plastic cup upon which she slipped.
As part of its instruction to the jury, the trial court gave defendant's requested charge 5 which reads:
"I charge you, members of the jury, that in and about her use of the defendant's premises where the accident described in the complaint occurred, the plaintiff assumed all of the normal and ordinary risks attendant upon the use of the premises, and the defendant was under no duty to reconstruct or alter the same so as to do away with known or obvious dangers, if any, and I further charge you that if you are reasonably satisfied from the evidence in this case that any danger on said premises was a danger which was known or obvious to the plaintiff or which, in the exercise of reasonable care, should have been known or obvious to her, then you may not return a verdict in favor of the plaintiff and against the defendant."
In a discussion between the trial court and counsel regarding the written requested charges of all parties, the following exchange occurred:
After the noon recess, counsel for all parties gave closing arguments and the trial court instructed the jury, including the reading of defendant's requested charge 5, whereupon the following exchange occurred:
The jury returned a verdict in favor of defendant Mobile Greyhound Park, Ltd. The trial court entered this verdict and subsequently denied the Grays' motions for new trial or for entry of a judgment notwithstanding the verdict. The Grays appealed and argue that the judgment must be reversed because the court gave charge 5 at the request of the defendant. We affirm.
Initially, we must consider whether the Grays have sufficiently complied with the letter and spirit of ARCP 51 so as to preserve their allegation of error for review by this court. This evaluation must be made in the light of our recent decision in Lollar v. Alabama Power Company, 371 So.2d 9 (Ala.1979). In Lollar, there was an extended colloquy between the trial court and Lollar's counsel concerning several of the Power Company's proposed written charges. Although the discussion was lengthy, there is no single exchange between counsel and court from which one could specifically glean an objection comporting with the requirements of ARCP 51. After the trial court delivered its charge to the jury, including the defendant's requested written charge, Lollar's counsel stated that he had "no objection." We held that Lollar had failed to properly satisfy Rule 51 and,...
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