Thacker v. JC Penney Company, 16561.

• Decision Date: 15 May 1958
• Docket Number: No. 16561.,16561.
• Parties: James E. THACKER, Individually and as next friend for Jada Thacker, a minor, Appellants, v. J. C. PENNEY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

254 F.2d 672 (1958)

James E. THACKER, Individually and as next friend for Jada Thacker, a minor, Appellants, v. J. C. PENNEY COMPANY, Appellee.

No. 16561.

United States Court of Appeals Fifth Circuit.

April 7, 1958.

Rehearing Denied May 15, 1958.

John J. Watts, Odessa, Tex., for appellant.

William L. Kerr, Midland, Tex. (Turpin, Kerr & Smith, Midland, Tex., of counsel), for appellee.

Before HUTCHESON, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

James E. Thacker, on his own behalf and as natural guardian and next friend of his child, Jada Thacker, brings this suit for damages for injuries to his child who fell from a balcony in J. C. Penney's department store in Odessa, Texas. Jurisdiction is based on diversity of citizenship.

The plaintiff-appellant contends that the defendant is liable for breach of its duty to maintain safe premises. The defendant-appellee contends: (1) that the danger was open and obvious and that the existence of such a danger did not shift the care of the appellant's child from his parent to the appellee; (2) if there was a duty upon appellee, it was only to give warning to the child's mother, and the mother's knowledge of the open danger relieved defendant of any liability.

I.

One afternoon in January, 1955, Mrs. James E. Thacker made a shopping trip to the J. C. Penney store to buy her mother a gift. With her was her active young son, Jada, two years and two months old at the time.

In the rear of the store is a balcony about nine feet above the first floor. It runs the width of the store, seventy-five feet, and is forty feet deep. The balcony is protected by an attractively finished railing of oak and tempered masonite, varnished and waxed, three-feet-six-inches high. The railing consists of a base eighteen inches high surmounted by four horizontal bars, suitably spaced, six inches from bar to bar, like the rungs of a ladder, as if designed as a sort of Jungle Jim for young children to climb. On the top rail overlooking the store a small boy would gaze with wonder at the scene below him and feel like stout Cortez Balboa silent upon a peak in Darien. This was the setting, as the appellants presented the case.

The appellee takes a dim view of this presentation of the case. The only danger here was the danger of a very young child falling from an ordinary balcony railing commonly found in Penney stores. Mr. Mickey Lavy, manager of the store, testified that the railing was strong and safe and especially constructed to prevent people and merchandise from falling off. The object of using rails instead of a solid wall of the same height was to allow the merchandise to be seen from the ground floor. Mr. Lavy said that he had never had any complaints that the balcony was unsafe for children and he never heard of a child having fallen from the balcony of any Penney store.

The balcony was used for the display and sale of women's clothing. On entering the store, Mrs. Thacker went immediately to the balcony to find a dress for her mother. The purchase was never completed. Jada pulled away from his mother so often, each time going to the railing and climbing it, that Mrs. Thacker gave up finding a dress and carried Jada down to the main floor to a jewelry counter some eighty feet from the staircase.¹ She placed Jada on the floor between her and the jewelry counter. After about ten minutes Mrs. Thacker became conscious of the fact that Jada was not in sight. She looked behind counters, heard a cry, saw a crowd near the staircase, and found her child on the floor beneath the balcony. No one saw him fall. No one saw him moments before the fall. Jada fell on his head and suffered a severe cerebral contusion and a compound fracture of the right leg.

Appellants extract the last ounce of benefit to their view of the case from the testimony of Mrs. Helen Finley, one of the saleswomen who worked on the balcony.² She testified that she pulled Jada off the railing on three occasions. Each time she set him back four to six feet from the railing. She stated that she knew "there wasn't anybody looking after him"; "knew he was only about two years old" and "didn't have the ability or discretion to understand the danger"; knew that "it was dangerous"; "was afraid that he might fall"; explained that she left him unattended because — "Well, I was busy. I was a saleslady and I had to take care of my job"; "made no effort to talk to the store manager or locate anybody to take charge of him"; had seen children playing on the balcony and knew that "employees would have to get them away from up there"; had told other children not to climb on the balcony. Mrs. Finley insisted, however, that whenever she saw Jada on the railing she "always got him down". She did not see him immediately before his fall and, according to her testimony, some twenty minutes elapsed between the last time she removed Jada from the railing and the child's fall.

The testimony showed that the employees who worked on the balcony recognized that the railing attracted children and was a danger to small children. Mrs. Meek, who worked with Mrs. Finley, testified: "I have taken children off of there several times, and it was a thing that attracted children to it."³ Mrs. Meek said that it was "of practically daily occurrence" and that this "danger" to children was "a matter that was discussed among the employees". She was sure that Mr. Lavy, the manager, realized it since "his desk was just a little ways from it, from where his desk was he could also see the children". Mrs. Finley said that she had seen children playing on the balcony railing and she and other "employees would have to get them away from up there".⁴ She had never been instructed by the manager to keep children away but she "always did it on her own, if she saw one".

The case was tried before a jury in the District Court for the Western District of Texas and defendant's motion for an instructed verdict was overruled, but after failing to reach an agreement the jury was discharged. Defendant then filed a motion for a summary judgment and a motion for a judgment on the same grounds that had been urged in asking for an instructed verdict. The district judge granted both motions and ordered entry of judgment in favor of the defendant, apparently on the basis that as a matter of law there was no breach of duty and no negligence shown.

II.

When a person on the property of another is injured as the result of an alleged dangerous condition of the premises, liability depends upon (1) the existence and scope of the defendant's duty of care to the plaintiff and (2) whether the defendant breached this duty. The relationship between the parties is a material factor in determining the existence and scope of the duty. Conventionally, courts divide visitors into three classes and calibrate the duty owed according to whether a plaintiff is a trespasser, licensee, or invitee.⁵

Under Texas law a storeowner who invites the public to his store, knowing that women constitute a heavy percentage of his customers, knowing too that frequently a child will accompany a parent to the store, is "under an obligation to extend to the child the protection of an invitee". Carlisle v. J. Weingarten, Inc., Tex.Civ.App.1941, 120 S.W. 2d 886; Id., 137 Tex. 220, 152 S.W.2d 1073 at page 1077.⁶ Unlike the attractive nuisance cases, where the difficulty is in finding an affirmative duty of due care to a trespasser,⁷ there is no doubt as to the existence of such a duty imposed on the defendant with respect to Jada as an invitee.

III.

What is the scope of the duty here? A storeowner is not an insurer of an invitee's safety, but he is under the affirmative duty of exercising due care under all circumstances. The Restatement speaks of the liability of a landowner to business visitors "to exercise reasonable care to make the land safe for their reception".⁸ Restatement, Torts, Section 343. Harper and James state: "The occupier must use due care not to injure the plaintiff by negligent activity and also to warn him of latent perils actually known to the occupier. In addition, the occupier owes the duty to inspect his premises and to discover dangerous conditions * * * as part of a larger duty of reasonable care to make the premises reasonably safe."⁹ 2 Harper and James, Law of Torts, Section 27.12, p. 1487.

A storeowner is under a duty to use due care to make the premises safe for all invitees — for a young child as well as for an adult. He owes the same degree of care to both, but, of course, different precautions must be taken for children, if the storeowner's conduct is to measure up to the standard of due care under all the circumstances.¹⁰ "The proprietor of a store or shop who invites or induces children to come upon the premises must use care to keep the premises reasonably safe for children. Account is taken, in determining the precautions necessary to be exercised, of childish impulses as well as the fact that certain dangerous conditions in the store or shop may attract small children to their injury." 38 American Jurisprudence 799, Negligence, Section 177. Age and the ability of a child to realize danger,¹¹ the peculiar attraction certain installations have for children,¹² childish impulses, the knowledge that young children frequently in the past had been attracted to an installation are all circumstances to be taken into account in determining whether a storeowner has complied with his duty of care to an invitee who is a child. If J. C. Penney, through its employees, had knowledge that children frequently played on the balcony and were attracted to climbing the balcony railing, and if there was a foreseeable probability of injury by children climbing the railing and falling, defendant was under a duty to avoid the danger by taking precautions to make the premises reasonably safe. Further, even without the actual knowledge of the peril to children generally or to Jada...