Larson v. Calder's Park Co.

• Decision Date: 11 April 1919
• Docket Number: 3292
• Citation: 54 Utah 325,180 P. 599
• Parties: LARSON v. CALDER'S PARK CO
• Court: Utah Supreme Court

180 P. 599

54 Utah 325

LARSON v. CALDER'S PARK CO

No. 3292

Supreme Court of Utah

April 11, 1919

Appeal from District Court, Third District, Salt Lake County; J Louis Brown, Judge.

Action by David Larson, by Laura Richardson, his guardian ad litem against the Calder's Park Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

J. H Hurd and L. L. Bagley, both of Salt Lake City, for appellant.

APPELLANT'S POINTS.

The general rule is that there is no implied warranty on the part of a landlord that leased premises are in a safe condition, or that he will keep the premises repaired or in a safe condition. Jones, Landlord and Tenant, section 574.

Unless the injury or damage complained of is in law the proximate and direct result of the alleged wrongful act of the owner of premises he is not responsible to the one injured thereon while the same are in the exclusive possession and under the control of the tenant. Anderson v. Baltimore & O. R. R. Co., 81 S.E. 579.

D. H. Thomas and W. R. Hutchinson, both of Salt Lake City, for respondent.

RESPONDENT'S POINTS.

Where the owner of a public pleasure resort leases the whole resort, and, at the time of the demise, there exists in the resort a building to be used for a shooting gallery, which, by reason of its defective condition at the time of the demise, is dangerous when operated as a shooting gallery, and that condition was known, or by the exercise of reasonable care and diligence could and would have been known to the owner at the time of the demise, and the lessee is permitted to and does, under the lease, operate such shooting gallery in the building while in such dangerous condition, and by reason thereof a patron of the resort is injured, the owner is liable for the injury. Jones on Landlord and Tenant, section 599. 24 Cyc. 1125.

WEBER, J. CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, J.J., concur.

OPINION

WEBER, J.

Laura Richardson, as guardian ad litem of her son, David Larson, eleven years of age, instituted this action in the district court of Salt Lake county against the defendant for the recovery of damages for the loss of the boy's right eye as a result of defendant's alleged negligence. The case was tried before the court with a jury, and a verdict was rendered in favor of plaintiff, and from the judgment entered thereon defendant appeals.

In his complaint the respondent alleges that he is an infant eleven years of age, and that he sues by his guardian ad litem; that defendant is a Utah's corporation; that on June 2, 1916, the date of plaintiff's alleged injury, and for many years prior, appellant was the owner of a pleasure resort or park known as "Wandamere" in Salt Lake City, and that Wandamere was widely known as a suitable and safe place for the entertainment of the public and of children; that long before the alleged injury appellant erected a number of buildings at said resort for the use of itself, and its lessees, and concessionaires for the purpose of there conducting attractions and amusements for gain and profit and for the entertainment of the public; that appellant had constructed one of the buildings for the purpose of being used as a shooting gallery, where patrons of the resort were permitted for pay to shoot with rifles loaded with gunpowder and leaden bullets at certain targets; that said shooting gallery was constructed by appellant many years prior to June 2, 1916, and during all the time since its construction had been used as a shooting gallery; that the targets used in the shooting gallery were constructed of iron, and that when bullets would strike against them they would glance from the targets and, unless prevented by some suitable and proper protection, would fly from the targets and from the building out to where patrons of the resort were passing by or standing near the shooting gallery, and were liable to strike and injure such patrons; that during all of the time and continuously up to and including June 2, 1916, there existed immediately east of the building in which the shooting gallery was so operated a well-defined and beaten path which had been continuously, frequently, and regularly used, and at the time of the alleged injury was used, by patrons of the park in passing by the shooting gallery building; that appellant carelessly and negligently so constructed the east wall of said building of boards and lumber that large cracks, holes, and openings remained therein, through which bullets when they struck against and glanced from the targets would fly out to where patrons were passing along the said path, and that by reason thereof the shooting gallery and premises thereabouts became and were unsafe and dangerous to patrons; that all of these conditions were well known to the appellant; that on April 29, 1916, the appellant leased the resort to parties who organized a corporation known as the Jackson-Sweeten Amusement Company for the purpose of operating the resort under said lease, and that with the knowledge and consent of appellant the Jackson-Sweeten Amusement Company, entered into possession of the resort under the conditions described and operated it during the season of 1916; that the lease provided that the lessees were to have complete possession of Wandamere Park, and should have the right and privilege of operating and maintaining all of the attractions and amusements which were ordinarily and usually there maintained and operated; that at the time the lease was executed, and when the park was taken possession of by the Jackson-Sweeten Amusement Company, the building in which the shooting gallery had been operated was one of the buildings of said resort, and the shooting gallery operated as above set forth was one of the attractions and amusements operated by the lessees, and that the unsafe condition of the building continued while in the possession of the lessees as it had been for many years before the lease; that during the season of 1916 the resort was widely advertised by the Jackson-Sweeten Amusement Company, which induced the teachers of the public schools of Salt Lake City to hold their "field day" for the public schools of the city at said resort on June 2, 1916, the pupils being given free admission on said date; that respondent was one of those to whom free admission was given to the resort, and that while there on the date mentioned he passed along the path referred to, and that at that time some patron of the gallery shot at the targets and a bullet so shot from the rifle glanced from the target and passed through a hole or crack in the east wall of the gallery and struck the respondent in his right eye, and as a result of the accident his eye was destroyed and its removal became necessary.

Appellant, in its answer, admitted the age of the respondent, the corporate existence of the appellant, its ownership of Wandamere Park, and that it executed the written lease set out in the complaint. All the other allegations of the complaint were denied in the answer.

The material allegations of the complaint were supported by substantial evidence. It was shown that the shooting gallery had been operated since 1909; that the building was old even at that time; that the east wall constructed of boards had holes, cracks, and openings therein, and that this condition had existed for some years. One of the boards taken from the wall and introduced in evidence as an exhibit is literally peppered with bullets and fragments of bullets. On the east of the shooting gallery, north and south, there was a ditch with running water next to the wall of the gallery, and also a passageway, which some of the witnesses described as a well-defined track; others speak of it as a well-beaten path; all who testified on the subject said that it was often used as a passageway, particularly on important days. By the terms of the lease it was provided that the lessees expend certain sums of money in improvements and repairs, but nothing was said about the shooting gallery. They agreed to keep all the buildings used for attractions in good repair, and at all times to employ competent assistance and help in maintaining the attractions, and, in case of any accident giving rise to an action for personal injury by reason of the operation and maintenance of the park, the lessees agreed to defend any action brought and to hold the lessor harmless. The lessees were also given the right to sell concessions and give persons the right to operate attractions at the park.

The appellant maintains that from the evidence it is plain that the building or structure used as a shooting gallery was not in any sense inherently dangerous, and that whatever danger if any, there was to patrons, arose wholly from the negligence of the lessees and their sublessees in installing and operating an apparatus for a shooting booth, and from their neglect to take any reasonable precaution to prevent patrons from coming in close proximity to the targets placed and used in said gallery. As to the law, counsel for appellant assert that the general rule is that there is no implied warranty on the part of a landlord that leased premises are in a safe condition, or that he will keep the premises repaired or in a safe condition; and that, in the absence of an express covenant on the part of the landlord to maintain the premises in repair, it is generally held that neither the tenant nor a guest of the tenant has any right of action against the landlord for injuries sustained by reason of defects in the premises where there was no fraud or misrepresentation on the part of the landlord leasing the premises; that the overwhelming weight of authority is to the effect that, where property at the time of the demise is not a nuisance, and an injury...