Moran v. Valley Forge Drive-In Theater, Inc., DRIVE-IN

• Decision Date: 03 October 1968
• Docket Number: DRIVE-IN
• Parties: Donald J. MORAN v. VALLEY FORGETHEATER, INC., and Abe Sablosky and Flo Sablosky, his wife; and Lewis Sablosky and Sadie Sablosky, h/w; and Benjamin Sablosky and Fannie Sablosky, h/w; and Nathan Sablosky and Sadie Sablosky, h/w; and David Sablosky and Katherine Sablosky, h/w; and Lydia Sablosky, widow of Thomas Sablosky, individually and t/a Norris Amusement Co., Appellants.
• Court: Pennsylvania Supreme Court

Page 875

246 A.2d 875

431 Pa. 432

Donald J. MORAN v. VALLEY FORGE DRIVE-IN THEATER, INC., and Abe Sablosky and Flo Sablosky, his wife; and Lewis Sablosky and Sadie

Sablosky, h/w; and Benjamin Sablosky and Fannie Sablosky,

h/w; and Nathan Sablosky and Sadie Sablosky, h/w; and David

Sablosky and Katherine Sablosky, h/w; and Lydia Sablosky,

widow of Thomas Sablosky, individually and t/a Norris

Amusement Co., Appellants.

Supreme Court of Pennsylvania.

Oct. 3, 1968.

Rehearing Denied Nov. 8, 1968.

Bean, DeAngelis, Tredinnick & Giangiulio, Albert R. Subers, Norristown, for appellants

Wisler, Pearlstine, Talone & Gerber, Lindley M. Cowperthwait, Jr., Charles Potash, Norristown, for appellee; Fox, Rothschild, O'Brien & Frankel, Philadelphia, of counsel.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

This appeal challenges the propriety of the refusal of the Court of Common Pleas of Montgomery County to enter a judgment n.o.v. or, in the alternative, grant a new trial in a trespass action for personal injuries instituted by Donald J. Moran against Valley Forge Theater, Inc. and certain individuals, allegedly the owners and operators of a drive-in theater (Theater), wherein a $12,000 verdict was entered in Moran's favor.

On May 17, 1963, Moran, with his wife and two minor children, purchased tickets for the evening show at the Theater and entered upon the Theater premises. At the conclusion of the first movie showing, Moran went to the theater restroom and, while approaching the restroom, observed 6 or 8 teenagers acting in a boisterous manner near the restroom. While Moran was in the restroom a lighted firecracker explosion took place therein as a result of which, for a period of time, Moran lost his hearing, and, thereafter, had a loud ringing in his ear accompanied by shock.

JUDGMENT N.O.V.

The Theater urges that the court below erred in refusing to enter judgment n.o.v. in that Moran failed to carry his burden of proving negligence on the part of the Theater which caused the accident. The thrust of the Theater's argument is that there was no testimony showing that it knew or had reason to know of the likelihood of a firecracker explosion in the restroom as distinguished from other portions of the Theater premises.

The record reveals that, on rather frequent occasions prior to the accident, boisterous and disorderly conduct had taken place on the Theater premises. On approximately twelve occasions each year over the two year period immediately preceding this accident there had been firecracker explosions on the Theater's premises, and on one occasion, a firecracker had been exploded in the men's restroom of the Theater; on one occasion, Theater guardians had been roughly treated and other acts of rowdyism had taken place in the same two year period. The Theater After a study of this record, we are convinced that Moran did establish sufficient facts from which the jury reasonably could have inferred negligence on the part of the Theater. We believe the court below adequately disposed of this contention in the following manner: 'There is a well established Rule of Law that the liability of a possessor of land who holds that land open to patrons for business purposes has a duty to prevent tortious acts of third parties to his patrons, or to warn his patrons of the possibility of such tortious acts. The law regarding this duty is well set forth in Section 344 of the Restatement of Torts, 2nd:--

gave no warning, either by prohibiting the lighting of firecrackers or by signs warning patrons of the possibility of firecrackers being exploded on the premises, although on the night of the accident three rampmen, charged with maintaining decorum, were on duty.

'A. * * * possessor of land who holds it out to the public for entry for his business purposes is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons * * * if the possessor by the exercise of reasonable care could have

(a) discovered that such acts were being done or were about to be done, and

(b) protected the members of the public by

(i) controlling the conduct of the third persons, or

(ii) giving a warning adequate to enable them to avoid the harm * * *'

'Comment f to Section 344, applies with specific particularity to the present case at bar, and states as follows:

'Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience that there is a likelihood of conduct on the part of the third persons in general which is likely to endanger the safety of the visitor, even though he had no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience is such that he should reasonably anticipate a careless or criminal conduct on the part of a third person, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.'

'Applying the above law to the evidence in this case, we must conclude that the prior occurrences of rowdiness by teenagers; the multitudinous firecracker explosions; and the inability of rampmen to maintain proper decorum were sufficient to make out a question of fact for the jury. It was also a question of fact for the Jury as to whether or not the (Theater) took adequate measures to either warn patrons of possible danger or to prevent acts on the part of third persons which might injure patrons of the theater. The (Theater) contend(s) in their brief that the record is devoid of...