Sharpe v. Adam Dante Corporation

• Citation: 468 S.W.2d 167
• Decision Date: 28 May 1971
• Docket Number: No. 17652,17652
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Parties: Beulah H. SHARPE, Appellant, v. ADAM DANTE CORPORATION d/b/a Adam & Eve Health Spa, Appellee.

Page 167

468 S.W.2d 167

Beulah H. SHARPE, Appellant, v. ADAM DANTE CORPORATION d/b/a Adam & Eve Health Spa,

Appellee.

No. 17652.

Court of Civil Appeals of Texas,

Dallas.

May 28, 1971.

Rehearing Denied June 18, 1971.

Larry Feldman, Feldman, O'Donnell & Neil, Dallas, for appellant.

Grover Hartt, Jr., Hartt & Perry, Inc., Dallas, for appellee.

BATEMAN, Justice.

This is a slip and fall case. The trial court rendered summary judgment that the plaintiff Beulah H. Sharpe take nothing, and she appeals on the single point of error that the evidence raised genuine issues of fact as to negligence of both parties. We sustain this point.

The appellee Adam Dante Corporation operated a health center called 'Adam and Eve Health Spa,' containing equipment for gymnastic exercises, special baths and a swimming pool. It was operated by appellee for profit as a private club, although its patrons or customers were called 'members' and paid a substantial sum for annual 'memberships.'

The only evidence before the court were appellant's oral deposition and certain photographs of the interior of the 'Spa' identified by her. She testified that the entire tile floor in the area of the swimming pool and whirlpool bath was wet every time she went there and that she knew it was slippery. On the occasion in question she was walking barefoot on this wet tile floor toward the swimming pool to get her towel when both of her feet slipped from under her and serious bodily injuries resulted. Appellee had never provided rubber stepping pads or mats on the floor or slippers for the patrons or anything else to prevent their bare feet from slipping on the tile floor.

Appellee's position is that, even if he were guilty of primary negligence in failing to provide his patrons with reasonably safe premises in which to carry on their activities, the undisputed evidence showed that he owed appellant no duty to warn her of the unsafe condition because she admitted in her deposition that she was fully aware of it. Also, that the doctrine of Volenti non fit injuria applied, meaning that she had voluntarily encountered the risk. He relies on a host of cases which we do not think apply to the facts presented here, but which are listed in the footnote. ¹ These cases deal with the liability Vel non of an occupier of land to a 'business invitee.'

Appellant argues that she was not in the usual category of 'business invitee' contemplated by the cases cited by appellee, in that she did not voluntarily enter appellee's place of business at his invitation, or with his consent, for the purpose of doing business with him, but that she had a contract with him under which she became a 'member' of the establishment with a right to enter and use the premises; that it was necessary for her to walk on the wet tile to enable her to receive the benefits of her contractual rights, that she had either to walk on the wet tile floor to use the facilities or surrender her legal and contractual rights to use them. She contends that she occupied the same legal position as that occupied by the little girl in Harvey v. Seale, 362 S.W.2d 310 (Tex.Sup.1962) and the plaintiffs in Dunlap v. Executive Inn Motor Hotel Corporation, 404 S.W.2d 842 (Tex.Civ.App., Dallas 1966, writ ref'd n.r.e.) and Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950); that she did not have the opportunity to exercise the 'intelligent choice' mentioned in those cases.

Volumes have been written on this subject, and we would not be justified in lengthening this opinion by attempting to summarize the many fine law review articles and the many cases on the general subject. In practically all of the cases cited by appellee the plaintiffs entered the defendants' premises by permission or on invitation for some business purpose, the defendant having consented to such entry when he had the right to refuse it.

However, the case before us is not such a case. In truth, the facts of this case are not quite similar to any reported decision we have found, but we see a definite similarity in the principle involved in this case and that upon which Harvey v. Seale, supra, was decided. In the latter case the injured party was the nine year old daughter of the tenant of a rented home. She was playing on the porch, a part of which had rotted out. She was aware of the hole thus made and had been warned not to play near the same. She did so, nevertheless, and was injured. The defense was that the child had assumed the risk and that the owner owed her no duty because the hole was open and obvious and she had full knowledge of it and appreciation of the danger involved. The following excerpts from the opinion illustrate the difference between the rights of the parties in the usual occupier-invitee relationship and the situation where one, such as a tenant, does not enter the premises by consent of the landowner but by virtue of a legal right to do so:

'A landowner is not under an absolute duty to change his methods of operation, alter the condition of the premises, or make other special preparations for the safety of such a visitor. All the latter can expect is knowledge of actual conditions that will be encountered so he may determine whether to avail himself of the landowner's consent. The duty of a landowner to his licensee or invitee is fully discharged than by a complete disclosure of the danger. And there is no duty whatsoever with respect to conditions that are so open and obvious, with the dangers therein so apparent, that the same are or should be known to and appreciated by the visitor. One who has no right...