Lamb v. Redemptorist Fathers of Ga., Inc.

• Decision Date: 17 March 1965
• Docket Number: 2,3,No. 40983,Nos. 1,40983,s. 1
• Citation: 111 Ga.App. 491,142 S.E.2d 278
• Parties: J. W. LAMB v. The REDEMPTORIST FATHERS OF GEORGIA, INC
• Court: Georgia Court of Appeals

Page 278

142 S.E.2d 278

111 Ga.App. 491

J. W. LAMB v. The REDEMPTORIST FATHERS OF GEORGIA, INC.

No. 40983.

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

March 17, 1965.

Rehearing Denied April 2, 1965.

Syllabus by the Court

1. Where the trial court sustains special demurrers to the petition and thereafter the plaintiff amends in response thereto, that order is not subject to exception or review.

2. (a) Where the liability of a landowner to an invitee for injuries is dependent on its knowledge of a dangerous condition existing on its premises, allegations of constructive knowledge are sufficient if the specific facts alleged are sufficient to raise a duty on the part of the landowner to know of the dangerous condition.

(b) Allegations that the proprietor of a swimming pool knew of the hibit of its patrons of throwing bottles, opened tin cans having sharp edges, and 'other dangerous objects' into a grassy area around its pool which had been permitted to grow to a height of six to eight inches, concealing a tin can having a 'razor-sharp' edge on which the plaintiff's son stepped sustaining injuries resulting in the damages sued for, were sufficient to raise a duty on the part of the defendant proprietor to know of the presence of the tin can on which plaintiff's son stepped, and allegations of constructive knowledge were, therefore, sufficient.

(c) The invitation of a landowner to its invitees extends not only to those portions of its premises which the invitees are expressly invited to use, but also to those portions to which it appears from the particular circumstances of the case that the invitation is reasonably extended.

3. The existence of a policy of liability insurance owned as a noncharitable asset by a charitable institution may be pleaded in a tort action against such charitable institution seeking a recovery against noncharitable assets thereof, whether such policy of liability insurance be the only noncharitable asset alleged or whether there be other noncharitable assets alleged to be in possession of the defendant.

Gleason & Brown, Burton Brown, Rossville, for plaintiff in error.

Shaw, Stolz & Fletcher, G. W. Langford, Irwin W. Stolz, Jr., LaFayette, for defendant in error.

FRANKUM, Judge.

John W. Lamb sued The Redemptorist Fathers of Georgia, Inc. in the Superior The defendant demurred to the petition as originally filed; the court sustained certain grounds of the demurrer with leave to amend; the plaintiff twice amended, and the defendant renewed its demurrers and filed additional grounds after each amendment. To the petition as finally amended the defendant filed a general demurrer and eight grounds of special demurrer. The court sustained all grounds of demurrer with leave to amend. The plaintiff declined to amend, the court dismissed the petition, and the exception here is to that judgment.

Court of Walker County for damages to recover medical expenses incurred by him for the treatment of his minor son, Bobby Ray Lamb, and for the loss of services on account of personal injuries sustained by plaintiff's son under the following alleged circumstances as set forth in his petition as finally amended: The defendant maintains and operates on its premises located in Walker County a swimming pool to which it sells to the public, for a monetary consideration, swimming privileges. Defendant has maintained and operated such swimming pool for a long period of time. It is thoroughly familiar with the common practice of its customers, using the pool, in 'leaving bottles, containers, opened tin cans and other dangerous objects around the pool,' and it is also familiar with the further practice of such customers in throwing litter of a similar description in the grass growing around the edge of the pool, and defendant knew that broken bottles, tin cans and other dangerous objects likely to cut the bare feet of any one stepping thereon were often thrown around the pool and concealed in the grass. 'On the tenth of July, 1961, plaintiff's son, after paying his admission charges for the privilege of using defendant's pool, entered on the premises of the defendant in a bathing suit and [111 Ga.App. 493] without shoes on his feet. Grass was growing around such swimming pool for a distance of over fifty feet from the pool's edge and this grass had been allowed to grow up to six to eight inches above the ground and was in an unkempt and shabby condition. Concealed under the aforementioned grass and approximately 40 feet south of the southeast corner of the pool was an open tin can with the sharp razor-like edge extending upward and, as plaintiff's son was walking from this grass toward the concrete walk around the pool, he stepped on the razor-like edge of the can with his left foot and severely cut his said foot and sustained severe and permanent injuries thereto.' The plaintiff's son did not know of the presence of the can concealed in the grass, and its presence so concealed constituted a hidden danger unknown to the plaintiff's son but which was known or should have been known by the defendant. It is alleged in the petition that the defendant was negligent in failing to exercise ordinary care in keeping the premises safe, in failing to make daily inspections, in failing to warn the plaintiff's son of the dangerous condition of the premises, in failing to rake the concealed objects out of the grass, and in leaving such objects lying around and concealed. Plaintiff alleged that the defendant is a charitable institution maintaining a parochial school on the premises in question, together with other facilities for the purpose of providing and maintaining recreational programs suited to the welfare of the students of the school and to those members of the public who desire to use such facilities for hire; that in connection with the operation of its parochial school, the defendant, through its priests and nuns as teachers, conducts religious services in the Catholic faith, and the property occupied by the defendant 'is dedicated and devoted exclusively to charitable, religious, and educational purposes'; that, notwithstanding the defendant's charitable purpose, it owns property in Walker County held for noncharitable purposes, to wit: A certain described public liability insurance policy which was in force and effect on the date the plaintiff's son sustained his injury, the existence of which is essential to the plaintiff's cause of action.

1. In his bill of exceptions the plaintiff in error attempts to assign error on 2. The petition alleges that the defendant was negligent in that it permitted tin cans, bottles, and other debris to accumulate in the grass around its pool and failed to inspect the grass so as to ascertain the presence of and remove sharp objects of a dangerous nature thrown or accumulated around the pool during the course of its daily operations. In every action against a landowner based on his negligent failure to maintain the premises in a safe condition, actual or constructive knowledge of the landowner of the unsafe condition is an essential element of the cause of action. Thus it is essential in this case that knowledge on the part of the defendant of the presence of the tin can concealed in the grass be shown. Here the petition alleges that the dangerous instrumentality concealed in the high grass 'was known to the defendant,' or that 'it was its duty to know in the exercise of ordinary care.' This, of course, is merely an allegation of constructive knowledge, but it is sufficient if the specific facts otherwise alleged are such as to raise a duty on the part of the defendant to know. Pacetti v. Central of Georgia R. Co., 6 Ga.App. 97, 101(1), 64 S.E. 302. Paraphrasing what was said by Judge Powell in that case: Normally, perhaps, the operator of a place of public resort, such as a swimming pool, would be under no duty to anticipate the presence on the ground, whereon the patrons are invited to come, of sharp objects or that a patron would likely step upon such an object and cut his foot. But, circumstances alter cases, and under the facts set forth in the petition in this case, it may be said that the defendant permitted an unusual situation to exist on its premises. Those allegations show that the defendant had permitted the grass around its pool to grow to a height of six to eight inches; it did not grow to this height overnight but did so over a period of several days at least; the defendant knew that it was the common practice of its patrons, the members of the church and the students in its private school, to leave bottles, containers, opened tin cans, and other dangerous objects around the pool, and it was also familiar with the practice of its patrons of throwing litter of a similar description into the grass around the pool. If these factual allegations be proved, then a jury would be authorized to find that the knowledge on the part of the defendant of this practice of its patrons, together with its knowledge of the unkempt condition of the grass growing around the pool, coupled with the common knowledge possessed by every person of which the defendant was bound to take notice that objects such as bottles and tin cans deposited in such high grass could not be readily observed except by one making a careful inspection, imposed upon the defendant the duty of making such an inspection of the area and of removing from the grass any dangerous objects found to be in a place where its customers were invited or reasonably expected to be. A jury would be further authorized to find that the duty to make inspections of the area and to remove dangerous objects devolved upon defendant, if not before, certainly after, the grass had reached such height as to conceal the dangerous objects deposited therein, and that this condition had existed for several days, and from this, the jury would be authorized to find that defendant had constructive knowledge of the presence...