Hammonds v. Jackson

• Decision Date: 12 July 1974
• Docket Number: Nos. 1,3,No. 49234,2,49234,s. 1
• Parties: Floradene HAMMONDS v. Mrs. G. A. JACKSON
• Court: Georgia Court of Appeals

Page 366

208 S.E.2d 366

132 Ga.App. 528

Floradene HAMMONDS v. Mrs. G. A. JACKSON.

No. 49234.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 12, 1974.

Rehearing Denied July 31, 1974.

Drew & Jones, Don M. Jones, Richard J. Azar, Jr., Atlanta, for appellant.

Walter O. Allanson, Albert A. Roberts, East Point, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

This is a slip and fall case, the fall occurring on the floor of a dance hall by one of its customers while engaged in dancing and resulting in injury to her ankle. She brought suit against the owner and the operator of the dance hall, known as the Egyptian Ballroom in the Fox Theatre building, alleging that while engaged in dancing she had hit an unusually slick spot on the waxed floor and slipped and fell.

Plaintiff's deposition was taken and she testified that she had danced 'all over the floor' before hitting the spot that caused her fall. From 150 to 200 patrons were in attendance and all were generally dancing. The admission charge had been two dollars. Beer is sold at the place and some was purchased by members of plaintiff's party of six. It is what is known as a 'brown bag' place where patrons are allowed to bring in bottles of whiskey and buy setups of ginger ale, etc. for mixing their own drinks. Plaintiff's party did have one or two bottles of whiskey and prior to the time she fell plaintiff had had two mixed drinks and prior to coming drank a beer, but that she was not 'under the influence.'

Mrs. Bernice Norris, a member of plaintiff's party at the dance, testified by deposition that all had had some drinks, that plaintiff fell while she and her partner were dancing a sort of fast dance on the floor, that there were something like 200 people present and no one else fell. She did not actually see plaintiff fall, but saw her very shortly afterwards when she was brought to the table which the party was using, and then carried to the hospital. She danced, but knew nothing of any unusually slick spots on the floor, and saw no foreign substances on it. The floor was waxed, and had been each time she had been there for dancing.

Mrs. G. A. Jackson, operator of the establishment, testified by affidavit that she was personally present on the occasion when Mrs. Hammonds fell, that she went immediately to the place where she fell and looked to see whether anything was present on the floor that could have caused it, and saw nothing. There was no rubbish or trash on the floor, 'nor did I observe any unusual slick spots on the floor.' She personally supervised the cleaning of the floor each week, and there had been no build-ups of wax or slick spots on it. The floor was waxed only twice each year, once in January and once in June when it is done by application of shaved paraffin, and at the time Mrs. Hammonds was injured on September 16, 1972 there had been no application of the paraffin or other waxing material since the previous June. She had been operating the place for ten years, and in all that time no liquid wax of any kind had ever been used. Mrs. Hammonds was the only person in that time who had ever been injured on the floor. No one else fell at anytime during the evening when Mrs. Hammonds was injured.

Defendants moved for summary judgment and tendered this evidence in support of it. The motion was sustained and plaintiff appeals. Held:

1. A careful search of the cases decided by the appellate courts of this state reveals, so far as we have found, that dance halls have been involved in slip and fall litigation on appeal only four times. The first was Tybee Amusement Co. v. Odom, 51 Ga.App. 1, 179 S.E.2d 415, which was decided on the basis of a defect in construction, i.e., a difference in floor level together with a keeping of the place very dimly lit. It had nothing to do with the condition of the dance floor; and plaintiff did not fall on the floor but when stepping off of it. The second was Sheraton Whitehall Corp. v. McConnell, 88 Ga.App. 725, 77 S.E.2d 752, which again alleged a sloping board at the edge of the floor, which itself was polished, and on which plaintiff stepped and fell. This case did not deal with the condition of the dance floor itself. Robinson's Tropical Gardens, Inc. v. Sawyer, 105 Ga.App. 468, 125 S.E.2d 131 found a jury issue relative to the condition of a corridor in which plaintiff had fallen adjacent to the dance floor. In Ward v. Veterans of Foreign Wars, 109 Ga.App. 563, 136 S.E.2d 481 the fall resulted from some liquid which had been spilled on the dance floor and allowed to remain. In none of them did the fall occur on the dance floor itself, as here, without the presence of some foreign substance to cause it, and none dealt with the problem of an alleged 'slick spot' on the floor which the plaintiff concludes resulted from waxing.

Our examination of authorities generally on this subject reveals that 'courts have recognized as applicable to actions by patrons against dance hall proprietors or operators for injuries resulting from the condition of the premises the view (1) that an owner or occupier of premises is not the insurer of the safety of his invitees, but rather is liable only for his failure to exercise reasonable care to avoid reasonably foreseeable danger to his invitees by keeping the premises in a reasonably safe condition for use in a manner consistent with the purposes of the premises, or by warning of hidden dangers or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision; (2) that inasmuch as the basis of his liability is his superior knowledge of an unreasonable risk of harm which the patron either does not or, in the exercise of ordinary care, should not know, the owner or occupier is not liable for injuries resulting from a condition which is readily observable and which should have been seen and appreciated by the invitee before he exposed himself to it, and in such circumstances there is no duty to warn, because the invitee has the information which would be conveyed by a warning; and (3) that where injuries result from an extraneous object or substance on a floor, it must be shown either that the owner or occupier, or his employees, placed the extraneous substance there or, if the substance was placed by someone else, that the owner or occupier, or his employees, had actual knowledge of the presence of the substance, or that it had remained in a position of danger for such a length of time that the owner or occupier, or his employees, should have had knowledge of the substance and removed it or given proper warning of its presence.' Anno. 38 A.L.R.3d 419, 422 § 2.

Negligence cannot be predicated on the slipperiness of a dance floor alone, for wax and like substances are applied to make it slippery and thus the better for dancing. It is a preparation for dance floors generally made everywhere they are found and used. Nolan v. North Hills Golf Club, Inc., 21 A.D.2d 695, 250 N.Y.S.2d 471. In order to recover the injured patron must show the use of improper materials or the negligent application of the material used. Patrons are usually held to accept the risk of dancing on a floor which they know has been prepared for dancing by the application of wax or some like substance. Durden v. Dranetz (Fla.App.), 99 So.2d 716; Fishman v. Brooklyn Jewish Center, 234 App.Div. 319, 255 N.Y.S. 124.

Although it appears that the lights were dimmed during the dancing, this is a practice of dance halls everywhere. People go to places where stimulating music is played and the lights are low for dancing. Plaintiff knew of this, as did all others engaged in dancing. It has been held that one who voluntarily goes into a dimly lighted area assumes the risk of injury which may result because of it. Mattox v. Atlanta Enterprises, 91 Ga.App. 847, 87 S.E.2d 432; Hendricks v. Jones, 28 Ga.App. 335, 111 S.E. 81; Flournoy v. American Hat Mfg. Co., 21 Ga.App. 599, 94 S.E. 835; Lebby v. Atlanta Realty Corp., 25 Ga.App. 369, 103 S.E. 433; Avary v. Anderson, 31 Ga.App. 402, 404, 120 S.E. 683; Frierson v. Mutual Realty Co., 48 Ga.App. 839, 174 S.E. 144. This applies particularly to the situation when one goes to a dimly lighted dance hall for dancing, where he knows both of the lighting condition and the polished floor.

The standard of care imposed by Code § 105-401 upon the owner or occupier of premises is that of ordinary care to keep the premises safe. The Supreme Court has held that in this context the duty is measured by what the prudent man would do under the circumstances, and that whether in terms of 'reasonable care,' or 'ordinary care,' in keeping the premises 'safe' or 'reasonably safe' it is the same. See Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866. The owner or occupier is not an insurer of the safety of his customers, guests or invitees.

'It would impose too great a duty upon the proprietor . . . and would make him the insurer of the safety of all patrons, which he is not, to require him at all times to have immediate knowledge of and to remove every article on which a patron might stumble and fall when the article is placed there, not by the defendant or its employees, but by other patrons.' Jones v. West End Theatre Co., 94 Ga.App. 299, 303, 94 S.E.2d 135, 138. See also Holloman v. Henry Grady Hotel Co., 42 Ga.App. 347, 156 S.E. 275; Scott v. Rich's Inc., 47 Ga.App. 548, 171 S.E. 201; Hill v. Davison-Paxon Co., 80 Ga.App. 840, 57 S.E.2d 680.

2. Plaintiff herself alleges nothing more than a 'slick spot' on the dance floor. She makes charge of no foreign substance on the floor and testified that she saw none. Her testimony was 'this one spot was-must have been mighty slippery, heavy wax or something. I don't know, but it sure tripped me.' This statement is a mere conclusion, and is without probative value, even in summary judgment proceedings-Stubbs v. State Farm Mut. Auto. Ins. Co., 120 Ga.App. 750, 756, 172 S.E.2d...