M.G.A. Theaters, Inc. v. Montgomery

• Decision Date: 26 February 1958
• Docket Number: No. 6305,6305
• Parties: M. G. A. THEATERS, Inc., a corporation, Appellant, v. Edgar E. MONTGOMERY and Gladys N. Montgomery, his wife, and Carol L. Montgomery, a minor, by her guardian ad litem, Edgar E. Montgomery, Appellees.
• Court: Arizona Supreme Court

Page 1009

321 P.2d 1009

83 Ariz. 339

M. G. A. THEATERS, Inc., a corporation, Appellant, v. Edgar E. MONTGOMERY and Gladys N. Montgomery, his wife, and Carol L. Montgomery, a minor, by her guardian ad litem, Edgar E. Montgomery, Appellees.

No. 6305.

Supreme Court of Arizona.

Feb. 26, 1958.

Struckmeyer, Whitney & Perry, Phoenix, for appellant.

Ragan & Rehnquist, Phoenix, for appellees.

FRANK E. THOMAS, Superior Court Judge.

This was an action by Carol L. Montgomery, a minor, by her guardian ad litem, against M. G. A. Theaters, Inc., for injuries sustained by the plaintiff when she was run over by a car operated by a third person, Henry Romero, while plaintiff was attending defendant's Rodeo Drive-in Theater, Phoenix, Arizona. The parties will be designated as they appeared in the trial court. The jury returned a verdict for plaintiff and against the defendant for $6,000. Defendant appeals from said judgment.

Although defendant makes six assignments of error and advances ten propositions of law, the question presented to this court for consideration is whether there was sufficient evidence to justify the lower court in submitting the case to the jury on the question of defendant's alleged negligence. This, in effect, is admitted by defendant in its brief, and consequently narrows the issue to that extent.

This evidence, presented wholly by plaintiff and the essential parts uncontradicted by defendant, may be summarized as follows: On June 26, 1954, at about 7:00 p. m., plaintiff, at that time seven years old, was admitted to defendant's theater in the company of her mother and several other children and a Mrs. Ruth McClendon, the entire party occupying the latter's car. Defendant's required admission price was paid for all of the occupants of the McClendon car. Mrs. McClendon parked her car near the snack bar. The plaintiff was allowed by her mother to sit on a blanket in front of the car to view the movie. There wee numerous other patrons sitting outside their cars for the same purpose since the night was very warm. No signs warned patrons not to sit outside their cars and no attendants or agents of the defendant requested the plaintiff not to sit in the aisle, or to remain in the car. The aisles of the theater over which patrons were required to operate their automobiles were not lighted in any manner and a sign prominently displayed at the entrance to the theater required patrons to drive with lights out while in the theater.

Sometime after 8:00 p. m. and after the picture had commenced, a car, driven by one Henry Romero, attempting to negotiate the aisle on which the McClendon car fronted, ran over the plaintiff while she was seated in front of the McClendon car. Although the exact position of the plaintiff in relation to the McClendon car and to the aisle was in dispute, it appears that plaintiff was not in the aisle proper, but on the sloping ramp or bank adjacent thereto. Plaintiff suffered a ruptured spleen, necessitating the removal of that organ.

The driver of the car, Henry Romero, left the State immediately after the accident.

Admittedly the law is that it is the duty of the defendant to keep the premises to which the patrons are invited in a reasonably safe condition. Fox Tucson Theater Corp. v. Lindsay, 47 Ariz. 388, 56 P.2d 183. From evidence as heretofore related we are asked to decide whether as a matter of law there was a sufficient showing by plaintiff of conduct or acts, or of a failure to act, on the part of the defendant as to which reasonable persons might differ, and from which a reasonable person might find that defendant had breached its duty to maintain the premises in a reasonably safe condition, in view of all the circumstances and conditions under which persons had been invited to use defendant's premises.

Defendant strongly urges that plaintiff abandoned her status as an invitee by sitting outside of her car to view the picture and that the duty or standard of care owed by the defendant to plaintiff was that owed to a mere licensee or trespasser. We see no merit to this contention. Where a proprietor of a place of amusement knows, or in the exercise of ordinary care should have known, that areas of his premises not originally intended for the use of patrons are being so used, he extends to them implied invitation for such...