True v. Larimore
| Decision Date | 16 July 1963 |
| Docket Number | No. 51051,51051 |
| Parties | Jack TRUE, Appellee, v. Don LARIMORE and Harriet Larimore, d/b/a Avoca Lanes, Appellants. |
| Court | Iowa Supreme Court |
Smith, Peterson, Beckman & Willson, Council Bluffs, and Wyland & Rock, Avoca, for appellants.
Manning Walker, Avoca, for appellee.
This is an action at law by a patron against the proprietors of a bowling alley for injuries sustained in a fall on the bowling lane approach.
I. Except for one matter relating to statements by one of the defendants hereinafter mentioned the facts appear without dispute.
On January 19, 1959 and for some time prior thereto defendants, who are husband and wife, operated a bowling alley and snack bar known as Avoca Lanes. Plaintiff, an experienced but amateur bowler, was a member of a regular organized team and bowling league.
He started bowling at Avoca Lanes in 1955 and bowled regularly after that date.
There are six bowling lanes or alleys in Avoca Lanes numbered one to six inclusive. Avoca Lanes had been inspected and approved by a representative of the American Bowling Congress.
On January 19, 1959, the date of plaintiff's injury, six different teams bowled in the afternoon and twelve teams in the evening. It was estimated, but not controverted, that during the afternoon 24 bowlers who used the alleys would deliver approximately 1080 balls.
Beginning at 6:45 in the evening a ladies' league started bowling. There were six teams with five on each team and again it was estimated that the bowlers on the ladies' league between 6:45 and 9:00 P.M. would deliver approximately 1440 balls.
At 9:00 P.M. the men's competition began with 30 members, including plaintiff, participating and again it was estimated that during the men's competition 1170 balls would be delivered.
Plaintiff while in the middle of the third frame of his third game fell while delivering his bowling ball. Plaintiff apparently at the time gave little thought to his fall because he continued bowling for the rest of the evening. It subsequently developed that he had injured his hand in the fall and that medical and surgical treatment was required and some disability resulted.
In connection with his fall plaintiff testified:
Plaintiff also testified as follows:
Facing the alleys, but not as a part thereof, there is a space where the bowlers and team members sit and where the scoring record is kept on tables provided for the use of score keepers. This area has an asphalt type tile floor and is at a lower level with a step up to the alleys themselves.
It is the claim of the plaintiff that his bowling shoes picked up beads of wax from this seating area and that the wax on his shoes caused him to fall and suffer injury.
Plaintiff admits that at the time he fell, and during the evening of his fall, he did not know what caused him to fall. He now relies on hindsight based on statements he attributed to one defendant. Plaintiff quotes one of the defendants in subsequent conversation as follows:
'Don said the only thing that he could figure out was the wax he had on his floor at the time would stick to my shoe and that's what caused me to fall.'
This conversation took place late one evening at plaintiff's tavern with plaintiff and his wife and the defendants, husband and wife, present. At that time plaintiff was complaining about the wax on the tile floor of his tavern and his difficulty in keeping it clean and removing the old wax. Defendant (husband) is quoted as saying that he had some wax remover which he used at the bowling alley. Defendant went and got a sample and demonstrated it and it worked well. From other testimony it appeared that the wax remover so demonstrated was the same product that defendant had been using prior to plaintiff's fall. Defendant was quoted by plaintiff as saying that he did not remove the wax on the floor for the simple reason that the wax he had on was not the proper kind so he later removed the wax and then used a different product.
Plaintiff's wife testified in substance that she overheard such a conversation but the making of such statements was denied by both defendants.
Whether or not the statements, if made, referred to a time prior to plaintiff's fall or later in the year does not appear. All plaintiff claimed is that it was sometime during the year 1959.
During cross-examination plaintiff testified as follows:
Defendants had operated Avoca Lanes since January 1958. The lanes had been inspected and approved. There is no evidence whatsoever that anyone had ever complained about conditions or maintenance.
According to plaintiff and his witnesses the alleys were equipped with sand paper and mats for use in cleaning the soles of shoes before starting to deliver the ball 'so as to avoid as far as possible anybody falling.' Plaintiff before his fall did not clean his shoes.
The secretary of the bowling league testifying for plaintiff said it was customary for bowlers to inspect their shoes and scrape their feet on the mat or sand paper before delivering the ball. He also said bowlers fall from various causes. The same witness said that once an unidentified lady bowler on some previous occasion had showed him little beads of a hard substance on her shoe. The witness made no investigation as to what the beads were. He apparently thought nothing of it for he did nothing. 'A couple times' when inspecting his own shoes he found 'The same little hard beads.' There is no evidence as to what these beads were nor where they came from.
During the period of slightly more than the one year of defendants' operation some bowlers had fallen while delivering a ball. There was no testimony as to the cause. Plaintiff's witnesses indicate there was nothing unusual about an occasional fall. There had been no injuries. On January 19, 1959, 84 different bowlers used the lanes without incident or complaint. One bowler other than plaintiff fell but there was no attempt by plaintiff to show why. Defendants' evidence described him as 'clumsy.'
There was nothing obvious nor apparent to indicate anything wrong. There was nothing wrong with the bowling lane nor the approach to the foul line. There was nothing to indicate anything unusual about the tile floor in the seating area. Defendants had never been told of any trouble. Plaintiff did not use the equipment provided to clean his shoes before bowling. There is nothing except a statement attributed to defendant (husband) based on hindsight conjecture and speculation to even suggest the cause of plaintiff's fall.
II. Plaintiff's petition did not contain the usual allegation of freedom from contributory negligence. The petition, however, did say 'that at said time and place while plaintiff was lawfully and properly using said bowling alley, as invitee on said premises' he fell by reason of the unsafe condition of said alley. Emphasis supplied.
Subject to certain exceptions not material here the burden rests on a plaintiff in a negligence case to plead and prove freedom from contributory negligence. It is preferable to make the specific allegation and rather dangerous to do otherwise but the usual method of using exact words is not exclusive.
As a matter of pleading the plaintiff's petition was sufficient. Wilson v. Corbin, 241 Iowa 593, 605, 41 N.W.2d 702. If plaintiff was properly using the bowling alley as alleged he could not have been contributorially negligent. It was a negative approach to an affirmative and essential element. The weakness in the petition would not in this case require a reversal for lack of specificity but essential elements should be so pleaded as to be apparent without search.
III. Plaintiff as a patron was an invitee on defendants' premises. Actions by invitees are quite common and the law relative thereto is well settled. We have recently, in a number of cases, reviewed the law applicable to invitees.
In Wendling v. Community Gas Company, Iowa, 120 N.W.2d 401 the law was again reviewed and authorities quoted. The law as stated in the Restatement of Torts, Vol. 2, Section 343 and previously quoted in our cases is again stated in Corkery v. Greenberg, 253 Iowa 846, 849, 114 N.W.2d 327, 329 as follows:
"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover the condition which, if...
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