Zappala v. Stanley Co. of Am.

• Decision Date: 25 April 1940
• Docket Number: No. 3.,3.
• Parties: ZAPPALA v. STANLEY CO. OF AMERICA.
• Court: New Jersey Supreme Court

12 A.2d 691

124 N.J.L. 569

ZAPPALA

v. STANLEY CO. OF AMERICA.

No. 3.

Court of Errors and Appeals of New Jersey.

April 25, 1940.

Syllabus by the Court.

Where proofs were that plaintiff was escorted to his seat in defendant's theatre by usher, using no light although house was darkened, attempted to occupy seat indicated by usher, and was thrown to floor and injured when seat collapsed, held it was error to nonsuit, the evidence being sufficient to put the defendant to its proofs to show that it had exercised reasonable care to discharge the duty it owed plaintiff in the' circumstances.

Appeal from Supreme Court.

Action by Frank Zappala against the Stanley Company of America for injuries sustained when seat in defendant's theater collapsed. From judgment of nonsuit, plaintiff appeals.

Reversed and new trial granted.

David Cohn and Milton Goldinger, both of Paterson, for plaintiff-appellant.

Colie & Schenck, of Newark, for defendant-respondent.

DONGES, Justice.

On March 18, 1936, plaintiff-appellant attended a performance of a motion picture at the Garden Theatre, in Paterson, which theatre was admittedly in the possession and control of the defendant-respondent. An usher escorted him to a seat, using no light although the house was darkened. The plaintiff attempted to seat himself in the seat indicated by the usher, but the seat collapsed, throwing him to the floor and inflicting injuries for which this suit was brought.

With this factual situation presented by the plaintiff's case, the trial judge granted a motion for non-suit, holding that the case came within the ruling in Schnatterer v. Bamberger, 81 N.J.L. 558, 79 A. 324, 34 L.R.A.,N.S., 1077, Ann.Cas.1912D, 139, and that proof was necessary either of actual knowledge of a defective seat or of the existence of the defective condition for such length of time as to charge the defendant with implied knowledge of it.

We conclude that the learned trial judge fell into error in so holding. There can be no doubt that the duty imposed upon the operator of a theatre is to use ordinary care to make the premises reasonably safe for the use to which they are to be put. Andre v. Mertens, 88 N.J.L. 626, 96 A. 893; Schellack v. Biers, 109 N.J.L. 61, 160 A. 404; Lancaster v. Highlands, etc., Corp., 117 N.J.L. 476, 189 A. 371. The supplying of seats is the custom in theatres and it was the duty of the defendant to use reasonable care to see that the seats were safe for use.

In 1 Thompson on Negligence, para. 996, it was said: "The duty assumed by the owners of places to which the public resort in large numbers is manifestly analogous to that which the law imposes on carriers of passengers. Doubtless the true theory is that such persons assume the obligation of exercising reasonable care, and that what will be a reasonable care will be a degree of care proportioned to the danger incurred and the number of persons who will be subjected to that danger. A good expression of the rule of liability, applicable to such cases, is * * * to the effect that the proprietor of such structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown, and undiscoverable. Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invited to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defects which render it unsafe is immaterial."

In a number of cases in our courts it has been held that an occurrence which is not usual and in the ordinary course of things gives evidence of negligence which puts the defendant to his proof. Sheridan v. Foley, 58 N.J.L. 230, 33 A. 484; Tompkins v. Burlington Island Amusement Co., 102 N.J.L. 411, 132 A. 670; Law v. Morris, 102 N.T.L. 650, 133 A. 427, 46 A.L.R. 1108; Zboyan v. City of Newark, 104 N.J.L. 258, 140 A. 225; Feingold v. S. S. Kresge Co., 116 N.J.L. 146, 183 A. 170; Galbraith v. Smith, 120 N.J.L. 515, 1 A.2d 34; Gordon v. Weinreb, 181 A. 435, 13 N.J.Misc. 835.

The precise factual situation presented herein seems not to have had consideration in our appellate courts, but has been passed upon in other jurisdictions.

In Durning et al. v. Hyman, 286 Pa. 376, 133 A. 568, 570, 53 A.L.R. 851, it was held that evidence that plaintiff was injured when she pulled down a seat in a moving picture theatre and sat upon it and the left side gave way, causing her to be thrown to the floor and injured, put upon the proprietor the duty to show reasonable diligence had...