Pilkington By and Through Pilkington v. Peking Chinese Restaurant, Inc.

• Decision Date: 28 February 1992
• Parties: Brittney PILKINGTON, a minor, By and Through her mother and next friend, Samantha PILKINGTON v. PEKING CHINESE RESTAURANT, INC. 1900996.
• Court: Alabama Supreme Court

Page 586

596 So.2d 586

Brittney PILKINGTON, a minor, By and Through her mother and next friend, Samantha PILKINGTON v. PEKING CHINESE RESTAURANT, INC.

1900996.

Supreme Court of Alabama.

Feb. 28, 1992.

Rehearing Denied March 27, 1992.

Charles A. Dauphin of Baxley, Dillard & Dauphin, Birmingham, for appellant.

Jerry B. Oglesby of Sides, Oglesby, Held & Dick and Fred Ray Lybrand, Anniston, for appellee.

ALMON, Justice.

The plaintiff appeals from a judgment on a jury verdict for the defendant in a personal injury action. Brittney Pilkington, a six-month-old infant, was injured when hot tea spilled on her while she and her family were dining at the premises of the Peking Chinese Restaurant, Inc. ("the Restaurant"). By and through her mother as next friend, Brittney filed a complaint alleging that the Restaurant ¹ "owed a duty to keep its premises reasonably safe, [to] protect the plaintiff against any unreasonable risk of injury, or to warn plaintiff (or plaintiff's guardian) of any known danger, but breached such duty by placing a pot of hot tea within plaintiff's reach."

The Restaurant answered, inter alia, that it had not been negligent and that "the injuries sustained by the Plaintiff were proximately caused by the negligence of one other than the Defendants." The essence of Brittney's claim was that the waitress had negligently left the pot of hot tea within Brittney's reach, and that Brittney had grabbed the handle and pulled the pot off the table and on top of herself. The essence of the defense was that Brittney's father had negligently spilled the tea onto Brittney. The court held a trial of the action and submitted the claims and defenses to the jury, which returned a verdict for the Restaurant. The issues for review are (1) whether the trial court erred in not dismissing or directing a verdict against the Restaurant's affirmative defense; (2) whether the trial court erred in refusing to charge the jury on sudden emergency, on the theory that Mr. Pilkington had reacted to Brittney's grabbing the pot handle; (3) whether the trial court erred in refusing to charge the jury as to a landowner's duty to children regarding a dangerous condition on the property; and (4) "whether the trial court erred in overruling Pilkington's objections to questions attempting to show Samantha Pilkington was not concerned with the welfare of her child."

The Pilkingtons sat in a booth, that is, a table against a wall with benches on two sides. Mrs. Pilkington and her two-year-old son Robby sat against the wall, and Mr. Pilkington and Brittney's grandmother, Sara Bradley, sat on the outside or open end of the booth. Brittney was in an infant seat placed horizontally on a chair at the end of the table. After pouring tea for Mrs. Bradley, the waitress set the pot on the table. There was evidence that, immediately after the waitress set the pot down, Brittney reached for the handle and started pulling the pot toward her. Mrs. Bradley and Mrs. Pilkington testified that Mr. Pilkington said "No, Brittney," but that she pulled the pot onto herself before he could stop her.

The principal evidence that the accident was caused by the negligence of Mr. Pilkington came from the testimony of Laura Gaskins, a hostess employed by the Restaurant. Her testimony, given by deposition and introduced at trial, included the following:

"Q. Now, as you were standing here bussing this table, did you observe any of the activities going on over here at the Pilkingtons' booth?

"A. I just kept watching them all the time because I was afraid that the baby was going to fall from the chair. That's why I kept an eye on the baby. But nothing, except for when the baby reached over for the tea.

"....

"Q. Did you ever see anyone from the table pour any tea out of the pot?

"A. No. I think that's what the father was fixing to do. He was either reaching for the tea pot or behind it and I guess he was fixing to serve him some and knocked it over.

"Q. Were you looking at the child when the child was burned by the tea?

"A. I wasn't looking at the child. I was just looking over towards that table from my peripheral vision.

"Q. Did you ever see Mr. Pilkington reach for the tea pot?

"A. Yes, sir, I did.

"Q. What, if anything, happened after Mr. Pilkington reached for the tea pot?

"A. It just spilled on top of the baby. And then the grandmother jumped up and grabbed the baby and tore the clothes off of it and they ran outside.

"Q. Did the tea pot fall off the table onto the baby?

"A. No.

"Q. Describe, if you will, how the tea got from the pot onto the baby.

"A. It just knocked over and just like rolled from the table onto her, just spilled from the table onto her.

"Q. What rolled onto the baby, the hot tea?

"A. The hot tea.

"Q. But the pot didn't roll onto the baby?

"A. No."

The first issue is based on the plaintiff's assertion that Mrs. Gaskins's evidence would not support a finding that the accident was caused by Mr. Pilkington's negligence. This assertion is based on the alleged contradiction between Mrs. Gaskins's answer to the first question quoted above, that she had observed "nothing, except for when the baby reached over for the tea," and her later testimony that she had seen Mr. Pilkington knock the tea pot over and spill the hot tea on Brittney. The plaintiff, however, does not cite any authority in support of this argument, except Ala.Code 1975, § 12-21-12, the substantial evidence rule. Mrs. Gaskins's testimony does provide substantial evidence from which the jury could find that Mr. Pilkington was negligent and that his negligence caused the accident. Any contradiction between the first answer quoted above and the remainder of her testimony created only a question for the jury as to her credibility and the weight to give her testimony. Similarly, the conflict between Mrs. Gaskins's testimony and the Pilkingtons' testimony created a question for the jury. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979); Decker v. Hays, 282 Ala. 93, 209 So.2d 378 (1968).

The second and third issues relate to the failure to give the plaintiff's requested instructions on the doctrines of sudden emergency and dangerous instrumentality. In order to address these issues, we first quote the following from the trial court's charge:

"[T]he duty of the owner of a premises to an invitee is to be reasonably sure that he is not inviting another into danger and to exercise ordinary care to render and keep the premises in a reasonably safe condition.

"....

"Now, the degree of caution which is necessary to reach the required standard of reasonable and ordinary care to be exercised may vary according to the circumstances and according to the capacity of the person with respect to whom such duty exists, and ... the duty ... of exercising reasonable care toward children must be calculated upon the fact that children are expected to act according to their known characteristics and impulses....

"....

"Now, in this case it is the plaintiff's position, Ladies and Gentlemen, that the plaintiff, Brittney Pilkington, was injured as the direct and proximate result of the negligence of the defendant. Or, in the alternative, that the defendant was negligent and that the defendant's negligence combined and concurred with the negligence of a third person, if you, the jury, find that there was a third person whose negligence proximately caused or contributed to the injuries of the [plaintiff]. If one is guilty of negligence which concurs or combines with the negligence of another person to produce an injury then each negligent person would be liable for any resulting injury....

"....

"First of all, if you find from the evidence that the plaintiff has reasonably satisfied you that the employees at the Peking Restaurant were...