Nance v. Ball, 2374

• Decision Date: 03 November 1961
• Docket Number: No. 2374,2374
• Citation: 134 So.2d 35
• Parties: Charles NANCE, Appellant, v. Linzy BALL and June Ball, his wife, and Donald L. Berg, Robert Berzin, Abraham Rosenthal and others, d/b/a Florida Lanes, Limited, a partnership under the laws of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 35

134 So.2d 35

Charles NANCE, Appellant, v. Linzy BALL and June Ball, his wife, and Donald L. Berg, Robert Berzin, Abraham Rosenthal and others, d/b/a Florida Lanes, Limited, a partnership under the laws of Florida, Appellees.

No. 2374.

District Court of Appeal of Florida, Second District.

Nov. 3, 1961.

Sidwill & Cheatwood, Tampa, for appellant.

Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellees Donald L. Berg, Robert Berzin, Abraham Rosenthal and others, d/b/a Florida Lanes, Limited, a partnership under the laws of Florida.

WHITE, Judge.

Charles Nance obtained a $10,500 judgment against Linzy Ball because of a damaging assault upon him by the said Linzy Ball, but the trial court entered summary final judgment for the co-defendants Donald L. Berg, Robert Berzin and Abraham Rosenthal, who were operators of the bowling alley where the assault occurred. This is an appeal by Charles Nance from the summary judgment in favor of the said co-defendants.

Charles Nance and Linzy Ball were bowling in league competition when Nance was assaulted by Ball in the co-defendants' establishment. On duty were thirty-seven employees, two of whom had knowledge of the incident. Nance and Ball were on opposing teams and a near fight between them had been broken up by a team member. Ball had previously threatened to assault Nance. Later, on the same occasion, a heated discussion arose when Nance 'kidded' Ball while the latter was bowling. Ball thereafter approached Nance and struck him with his fist or a bowling ball, fracturing his jaw and the bony structure on the left side of his face, knocking one of his eyes out position, breaking his glasses and causing him to be hospitalized while undergoing surgery.

The plaintiff brought action for damages on two counts, the first against Linzy Ball as aforesaid and the second against the co-defendants for negligently failing to maintain order in their place of business and failing to restrain Linzy Ball or prohibit him from engaging in competition because of his 'known propensity' for assaulting other patrons during temper flares over his bowling game. The co-defendants' motion to dismiss the complaint was denied. They then filed an answer admitting their operation of the bowling alley but denying the other allegations of the complaint.

The legal essence of the plaintiff's case against the operators of the bowling alley was that the said co-defendants had actual or constructive knowledge of Linzy Ball's temper and propensity toward violence; that they knew or should have known of his previous exhibitions of temper, his threats and his actual assault upon another patron several weeks prior to the incident involved in this case; but that notwithstanding such knowledge the co-defendants negligently failed to take reasonable preventive steps against the said Linzy Ball for the protection of other patrons, including the plaintiff, and that such negligence was a proximate contributory cause of plaintiff's injuries.

The co-defendants, in moving for summary judgment, offered no depositions or affidavits on their own account but relied upon the exhibits submitted by the plaintiff. The plaintiff submitted his own deposition, the deposition of Linzy Ball, the answers to interrogatories propounded to the co-defendants, and the affidavit of one Earl McLaughlin who was likewise a patron of the co-defendants.

Earl McLaughlin stated in his affidavit that about five weeks prior to the incident here involved he had been 'joshing' with Linzy Ball when without warning Ball '* * * came over and knocked me off the bench upon which I was sitting sideways to the floor. * * *', and that this incident was witnessed by several employees of the bowling establishment. Earl McLaughlin did not, however, discuss the matter with the manager. The depositions and answers to interrogatories disclosed other facts and circumstances as recited in the preceding paragraphs, with the added fact that Linzy Ball went to the co-defendants' manager after his involvement with Earl McLaughlin and apologized for what he had done. This was sometime prior to his attack on the plaintiff.

The trial court was of the opinion that the Earl McLaughlin affidavit, the answers to interrogatories and the two depositions before him were not sufficient to indicate that the co-defendants knew or should have known that Linzy Ball might...