Veterans Organization of Fort Oglethorpe, Ga., Inc. v. Potter, 40996
| Decision Date | 27 January 1965 |
| Docket Number | No. 2,No. 40996,40996,2 |
| Citation | 111 Ga.App. 201,141 S.E.2d 230 |
| Parties | VETERANS ORGANIZATION OF FORT OGLETHORPE, GEORGIA, INC. v. Eloise POTTER |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The duty of a proprietor to protect a customer or guest against the aggressions of third parties on the premises is that of the exercise of ordinary care in keeping the premises safe. No such duty arises until the owner has knowledge or by the exercise of such care could have discovered the hazard to the customer's safety and thereafter fails to use reasonable care to eliminate it. The plaintiff here failed to prove such negligence on the part of the defendant.
Mrs. Eloise Potter sued the defendant corporation for damages resulting from the death of her husband. Both counts of the petition allege that the defendant, through its agents, operates a club engaged in the business of entertainment and recreation and that on April 19, 1959, the plaintiff's husband, who was attending a dance given by the defendant, fell and sustained injuries from which he died. Count 1 alleges the fall resulted from the fact that the clubroom was dark and dimly lit, and the floor was slick, highly polished and waxed, and unusually slippery, constituting a nuisance knowingly maintained by the defendant; that the defendant failed to provide carpeting sufficiently fastened to the floor, failed to warn the plaintiff's husband of the dangerous condition, and failed in its duty to keep the premises in a reasonably safe condition. Count 2 alleges that while the deceased was lawfully on the premises a fight broke out between two of the defendant's customers; that defendant's agents made no effort to prevent the fight or terminate it after it had begun either by intervening or by calling the police; that the scuffling was allowed to continue and other customers became in volved, confusion was rampant, and in the course of the affray some person unknown struck the plaintiff's husband on the back of the head with a bottle or some other like object, causing a cerebral hemorrhage from which he died; that defendant's agents had ample opportunity to intervene but wholly failed to do so and thus failed to perform their duty to protect the deceased and other customers. Upon the trial of the case, after the court had overruled a motion for a directed verdict, the jury returned a verdict in favor of the plaintiff. The case is here on the denial of the defendant's subsequent motion for judgment notwithstanding the verdict.
Paul W. Painter, Rossville, Spears, Moore, Rebman & Williams, Silas Williams, Jr., Chattanooga, Tenn., for plaintiff in error.
Gleason & Brown, Frank M. Gleason, Rossville, for defendant in error.
1. The evidence in the case wholly fails to substantiate the first count of the petition. The uncontradicted testimony is that the dance floor of the club was of asphalt tile, that it was waxed once a week and had last been waxed six days before the night of the dance; that there had been heavy traffic over the area throughout the week; that on the night in question the entertainment had been going on four or five hours before the plaintiff's husband met with his accident, and there was a large crowd of people, probably more than 50 to 100 participants. One person testified that in his opinion the floor was slick but that he had no trouble walking or dancing on it. Many testified that it was not, and no one testified that he found it difficult to walk or dance. Since there was an orchestra and dancing was in progress it is obvious that carpeting would have defeated the purpose of the entertainment. Further, there is no hint of testimony that there was any slick spot on the floor where the deceased fell, and there was of course no testimony that any foreign substance was present and known to the defendant or had been there long enough so that constructive knowledge might be assumed. Accordingly, count 1 is totally without evidence to support it.
2. As to count 2, the facts are a little more dificult to ascertain. At about 1:45 a. m. on Sunday, when a number of people had left but there was still a good crowd in the large clubroom, tables had been pushed back against the wall and the main floor area was left open for dancing. A police officer, Moore, who was hired by the defendant to keep order, was present during the entire evening. Two other policemen were outside or had just entered the room at the time and Robbins, vice president of the club and Commander of the local VFW, was in charge of the entertainment and standing by the front door where he had been all evening, letting people in and out. A group of patrons was seated at one of the tables on the far side of the room 40 or 50 feet away from the door. Charlie Potter, the plaintiff's husband, had been present during the evening; he was a quiet man, had not been drinking, and did not engage in any fighting. He may or may not have been with the group at the table when an altercation broke out between his brother Gordon and another man, who exchanged blows, whereupon Officer Moore immediately dashed up to the table and, helped by others present, separated the men. Gordon was temporarily held against the wall. There was at this time a lot of loud talking, cursing and commotion. Some distance away on the same side of the room one of the tables was knocked over and a soft drink bottle fell in the lap of one of the guests, who grabbed at it. This act was misinterpreted by a guest at another table who thought he was going to throw the bottle at Officer Moore, then in the act of restraining Gordon Potter, and the observer hit the man with the bottle with his fist. By this time the three officers, or at least Moore and Friel, had broken up the fight. Estimates of its duration were from a few seconds to not over five minutes.
Charles Potter was then noticed lying on the floor 20 to 25 feet away. The back of his head had struck the floor...
To continue reading
Request your trial
-
Bailey v. City of Annapolis
... ... Volkswagen of America, Inc. , 180 Md. App. 136, 15253, 949 A.2d 26 (2008) ... Bonner , 166 Ga.App. 9, 303 S.E.2d 134 (1983). There, a clerk at ... ...
-
GeorgiaCarry.org, Inc. v. Georgia
...anticipate the misconduct of the guest inflicting the injury.’ ” (alteration in original) (quoting Veterans Org. of Fort Oglethorpe v. Potter, 111 Ga.App. 201, 141 S.E.2d 230, 233 (1965))). 40. Likewise, Georgia has long recognized a private action for trespass. SeeO.C.G.A. § 51–9–1 (“The r......
-
Fagan v. Atnalta, Inc., 76518
...created by third persons, plaintiff must prove defendant knew, or should have known, of the condition. Veterans Organization v. Potter, 111 Ga.App. 201, 205(2), 141 S.E.2d 230 (1965); Holiday Inns v. Newton, 157 Ga.App. 436, 437, 278 S.E.2d 85 (1981). Ordinarily, an independent criminal act......
-
Bishop v. Fair Lanes Bowling, Inc.
...to recovery under § 51-3-1. See Holiday Inns, Inc. v. Newton, 157 Ga.App. 436, 437, 278 S.E.2d 85 (1981); Veterans Organization v. Potter, 111 Ga.App. 201, 205, 141 S.E.2d 230 (1965). Knowledge of the dangerous condition created by a third party can, of course, be based on the conduct of th......