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COOPER, by Next Friend v. ANDERSON et al.
36812.
Tort; child invitee injured in bakery, etc. Before Judge Hubert. DeKalb Superior Court. May 22, 1957.
QUILLIAN, J.
1. To relieve one who commits a negligent act which may have contributed to an injury from legal liability therefor, there must be intervening unforeseen causes which break the causal connection between the original wrongdoer and the subsequent injury, and make his part in the injury or damage only incidental.
2. A small child who accompanies his customer parent into a store is an invitee on the premises.
This is a suit in which the plaintiff seeks damages for personal injuries allegedly caused by the joint negligence of both the defendants named in the petition.
The petition alleged: that the defendants E. R. Anderson of 4 Dartmouth Street, Avondale Estates, DeKalb County, Georgia, doing business as The Tasty Bakery, which is located and operated and is duly registered in the State of Georgia, County of DeKalb, being at 2040 North Decatur Road, and Scarboro Enterprises, Inc., a real-estate rental corporation, organized and existing under the laws of the State of Georgia, which has its principal place of business in the State and county at 449 Clairmont Road, N. E.; that the defendants reside in, and have offices and places of business within the county and are subject to the jurisdiction of DeKalb Superior Court; that the defendant Scarboro Enterprises, Inc., is the owner and lessor of the building which The Tasty Bakery occupies and in which the bakery carries on business as 2040 North Decatur Road; that the defendants have injured and damaged the petitioner and are jointly and severally indebted to the petitioner in the sum of thirty-five thousand ($35,000) dollars by reason of the facts hereinafter alleged; that on September 2, 1956, at approximately 9:30 a.m., petitioner, a child of the age of nine months, was in the company of his father, Dr. Paul Arthur Cooper, and petitioner was being carried by his father into the business establishment of the defendant, E. R. Anderson, the establishment being duly registered as The Tasty Bakery and located at 2040 North Decatur Road, the purpose of this visit being the purchase of the bakery's products by the petitioner's father; that petitioner's father entered the front entrance of the bakery carrying petitioner in his arms, and upon entry and as he stepped forward inside the entrance, petitioner's father shifted petitioner up toward his shoulder, holding petitioner in his arm with petitioner's body resting against and facing petitioner's father's chest and shoulder and elevating petitioner's head above that of petitioner's father's head in the manner in which small children are often carried; that petitioner's father is a man of the height of six feet four and one-half (6'4 1/2") inches; that immediately inside the entrance of the bakery there was at this time a revolving, overhead fan with blades approximately two (2') feet to three (3') feet in length hanging from the ceiling of the bakery with the blades being seven (7') feet from the floor; and the blades when revolving reach within two to three feet of the top of the entrance to the bakery; that the fan was in operation and revolving at a rapid rate of speed at the time petitioner and his father entered the bakery in the morning of September 2, 1956; that upon moving from the entrance into the aforementioned bakery, petitioner's father heard a rasping, scraping noise or thud, followed very shortly by the horrendous and agonizing screams of his child, the petitioner; that petitioner's father had no knowledge of the cause of the rasping noise or thud nor of the petitioner's violent, painful screams until he looked at the child's slashed and bloody face and forehead and at the revolving fan overhead; that petitioner's father could not observe the aforementioned fan in that it was placed in such close proximity to the entrance that petitioner's father upon entering said bakery was directly under the fan blades upon stepping forward and was unable to observe the fan in his normal visual view in looking straight
forward as he approached and entered the doorway; that the slashing blow of the fan blade placed and maintained in the aforesaid position caused petitioner excruciating and unbearable pain and also caused the petitioner's forehead and face to be slashed and cut; that as a result of receiving the grievous wound, the petitioner was immediately taken to Emory Hospital, and Dr. Frank Kanthak, a surgeon, was called to examine and treat the petitioner; but as an operating room could not be secured in Emory Hospital, the petitioner was immediately taken to Georgia Baptist Hospital; that the petitioner was anesthetized by Dr. Kanthak at Georgia Baptist Hospital and the wound was inspected and found to be an avulsion type wound with a blunt tearing down to the glabella and the frontal bone; the wound was cleaned and closed with interrupted stitches by Dr. Kanthak and examined again on September 15, 1956, by Dr. Kanthak; that on November 2, 1956, the petitioner's wound was again examined by Dr. Kanthak and the scar proved to be an unsightly U-shaped scar over the root of the nose, longer on the right than on the left, the scar being one-quarter inch wide at the widest part and being relatively wide throughout, with a depression which can be felt beneath the scar; that due to the severity of the wound and the relative width of the scar, a future operation will be necessary and the scar will have to be excised and rerepaired; that as a result of the said injury the petitioner has suffered pain and suffering and will suffer future embarrassment and mental pain due to the unsightly, ugly and severe scar which will permanently disfigure petitioner's face; that the aforementioned injuries to your petitioner were directly and proximately caused by the negligent acts of the defendants in the following particulars: the defendants negligently installing and allowing the fan to remain at the aforementioned height of seven feet from the floor and the defendants installing and allowing the fan to remain in its dangerous and deceptive situation amounting to a hidden peril, on the order of a mantrap or pitfall; that the defendants could and should have foreseen the lurking danger of injury being caused by the fan due to its position immediately inside the entrance to the bakery and its low position not allowing adequate overhead room to permit freedom from injury in the normal course of foreseeable events; that petitioner brings this suit to recover for injuries, physical suffering, future mental suffering and permanent disfigurement, and lays his damage in the amount of thirty-five thousand ($35,000) dollars.
The defendant, Anderson, demurred generally as follows: "Defendant demurs generally to the complaint upon the ground that the facts therein alleged are insufficient in law to constitute a cause of action in that the facts alleged show that the plaintiff is not entitled to recover as a matter of law; defendant demurs specially to paragraph 6, and in particular that portion of paragraph 6 reading as follows: 'in the manner in which small children are often carried,' upon the ground that said allegation constitutes a conclusion on the part of the plaintiff that, what petitioner's father did in carrying petitioner in his arms was often done when small children were carried in the arms of a person; defendant further demurs to that portion of paragraph 6 referred to herein, upon the further ground that the same is irrelevant and immaterial in this case, for the reason that what other people might do in carrying children in their arms is irrelevant to any issue in this case, and does not constitute a pattern or custom which the plaintiff in this case might rely upon."
The defendant, Scarboro Enterprises, Inc., demurred generally as follows: "The defendant demurs generally to the allegations of the petition upon the ground that the allegations do not set forth a cause of action against this defendant and that the allegations of the petition affirmatively show that the plaintiff is not entitled to recover against this defendant; this defendant demurs especially to the allegations in paragraph 6, to wit: 'in the manner in which small children are often carried,' upon the ground that said allegation constitutes a conclusion of the pleader unsupported by any well pleaded ultimate facts, and that the allegation is irrelevant and immaterial to the issues in the case; this defendant demurs especially to that allegation in paragraph 8, to wit: 'immediately inside' the entrance to the bakery on the ground that the words 'immediately inside' are vague and indefinite and do not put this defendant on notice as to what distance from the entrance to the bakery that the fan was located; this defendant demurs especially to the allegations in paragraph 12, to wit: 'on such close proximity' on the ground that the words 'on such close proximity' are vague and indefinite and do not put this defendant on notice as to what distance from the entrance to the bakery that the fan was located; this defendant demurs especially to the word, 'deceptive' in subparagraph (a) of paragraph 20 of the petition on the ground that the word 'deceptive' is a conclusion of the pleader unsupported by any well pleaded ultimate facts and is prejudicial and should be stricken from the petition; this defendant demurs to all of subparagraph (b) of paragraph 20 of the petition on the ground that the allegations thereof are conclusions of the pleader unsupported by any well pleaded ultimate facts and are prejudicial and should be stricken from the petition; this defendant demurs to the allegations of paragraph 21 of the petition on the ground that the allegations thereof are too general, vague and indefinite to put this defendant on notice of the position of the fan and that the words, immediately inside the entrance of the bakery and the low position of the fan, and the allegation that it did not allow adequate overhead room to permit freedom from injury in the normal course of foreseeable events, are all conclusions of the pleader unsupported by any well pleaded ultimate facts; defendant demurs especially to the words 'lurking danger' of injury on the ground that said words not only are conclusions of the pleader unsupported by any well pleaded ultimate facts but that same are prejudicial and should be stricken from the petition."
The trial judge sustained both defendants' general demurrers, the plaintiff excepted and the case is here for review.
For the sake of convenience the plaintiff in error will be referred to as the plaintiff and the defendants in error as the defendants, the parties having occupied those respective positions in the trial court.
The initial question for decision is whether the alleged conduct of the defendants, if both were responsible for the installation and operation of the fan, amounted to actionable negligence.
The question is comprehensive; it invokes consideration of the degree of care owed by the defendants to the plaintiff, whether that duty was violated, and whether the violation proximately caused the plaintiff's alleged injuries.
Liability in every tort case rests on the breach of a duty and resultant injury or damage to him to whom the duty is owed. Code 105-203.
The same duty may arise from different basic obligations imposed by law upon several defendants. In the situation related by the petition that is true in the case at bar. While the requirements of the law in reference to the owner and proprietor of the bakery are not identical, the factual situation alleged both the owner and the proprietor of the bakery, defendants Anderson and Scarboro Enterprises, Inc., owed the plaintiff the duty of exercising the same care to avoid injuring him, when he was lawfully upon the premises owned by the one and occupied by the other.
The law demands of the owner of premises that he neither create upon the property nor permit after reasonable opportunity to learn of its existence a structural condition of static danger which with foreseeable probability may be activated by the negligence of another and imperil persons lawfully upon the property.
The proprietor must refrain from creating, maintaining, or employing in the conduct of his business a device or instrumentality which is apt in the ordinary course of human events to injure persons lawfully coining into his establishment. Fulton Ice & Coat Co. v. Pece, 29 Ga. App. 507 (116 S. E. 57).
From reading the briefs filed in the case, the court is impressed that both the plaintiff and defendants regard the plaintiff's status on the occasion when he was injured as that of a licensee. The duty generally owed a licensee by the owner or proprietor of premises is not to wilfully and wantonly injure him (Cobb v. First National Bank of Atlanta, 58 Ga. App. 160 (2), 198 S. E. 111), which includes the obligation not to lay for him or permit to exist pitfalls or mantraps in which it may be reasonably anticipated he will become ensnared (Bohn v. Beasley, 51 Ga. App. 341, 180 S. E. 656), that is concealed perils to which it may be reasonably anticipated he may become a victim. Rollestone v. Cassirer & Co., 3 Ga. App 161 (2) (59 S. E. 442); Leach v. Inman, 63 Ga. App. 790 (5) (12 S. E. 2d 103); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490 (118 S. E. 697). And after a proprietor or owner of property becomes aware, or should anticipate the presence of the licensee, the duty rests upon the owner or proprietor to exercise ordinary care to avoid injuring him. Banks v. Watts, 75 Ga. App. 769 (44 S. E. 2d 510); Georgia Southern & Fla. Ry. Co. v. Wilson, 93 Ga. App. 94 (1) (91 S. E. 2d 71).
In Petree v. Davison-Paxon-Stokes Co., supra, at p. 496, allusion is made to the duty of the owner or proprietor of premises to exercise ordinary care in keeping a way along which the licensee is permitted to pass and where his presence should be anticipated free from hidden dangers, whether upon or suspended above such way and that the presence of a child who accompanies his parent into a store must be anticipated by the proprietor and owner of the property.
It follows that had the parties been correct in the assumption that the plaintiff was a mere licensee, under the rules we have stated, the defendant should have used ordinary care to avoid injuring him when he came into the bakery.
The preceding discussion assumes but does not decide that the plaintiff upon entering the bakery occupied the status of a licensee. We now consider the question as to whether in the circumstances alleged in the petition the plaintiff must be classified as an invitee in the bakery.
In Coffer v. Bradshaw, 46 Ga. App. 143 (6, 7) (167 S. E. 119) it is held: "Where one enters the premises of another for purposes connected with the business of the owner, conducted on the premises, he is an invitee, and the owner of the premises is liable in damages to him for a failure to exercise ordinary care in keeping the premises safe. The duty to keep the premises safe for invitees extends to all portions of the premises which it is necessary for the invitee to use in the course of the business for which the invitation was extended, and at which his presence should therefore be reasonably anticipated, or to which he is allowed to go." See also Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 S. E. 415). The view of counsel that the plaintiff, on entering the bakery was a licensee, is based on the holding of this court in the Petree case that a child who enters a store in company with his parent is a licensee. We are of the opinion that the holding was not a correct pronouncement of the law in the year 1923 when the case was reported, and are more firmly convinced, that if then sound, it is inapplicable to conditions prevailing in the year 1956, and at present. By the year 1956 it had become the universal custom of children to accompany or be carried by parents into stores where provender and clothes were purchased. This is a fixed business usage recognized and encouraged by trades people and one so general that we are constrained to take judicial cognizance of its existence. Not only is it customary for small children to be carried into stores, bakeries, and similar shops, but it is done in connection with the proprietor's business, because the patronage of the parents depends upon the privilege of bringing the children. While we believe this has to some extent always been true, in this day when both parents are more frequently employed in commercial or industrial enterprises it is seldom that both are free to attend the children. At any rate, whether there be a reason for it or not, a casual observation of the assemblies in stores and bakeries on any busy day will attest to the accuracy of the statement that children generally accompany or are carried by their parents where the latter trade. That the custom is recognized by merchants is conclusively shown by the devices designed for the amusement of children commonly found in the stores. A casual conversation with almost any parent will substantiate the verity of the statement that the parent would not trade in a store that did not permit the presence of the children. It is apparent that a child who accompanies his parent customer into a store, or similar establishment does not come within the definition of a licensee contained in Code 105-402, for he does not enter such establishment "merely for his own interest, convenience, or gratification," but his presence is essential and vital to the business conducted on the premises by the owner or proprietor. So while we pay homage to the great and gifted jurist who was the author of the opinion in the Petree case, that opinion is overruled, as to the single principle to which we have referred.
Our opinion in this regard is fortified by similar holdings in many other jurisdictions. Custer v. Atlantic & Pacific Tea Co. (D. C. Mun. App.), 43 Atl. 2d 716; Milliken v. Weybosset Pure Food Market, 71 R. I. 312 (44 Atl. 2d 723); Crane v. Smith, 23 Cal. 2d 288 (144 Pac. 2d 356); Weinberg v. Hartman, 45 Del. 9 (65 Atl. 2d 805); Kennedy v. Phillips, 319 Mo. 573 (5 S. W. 2d 33); Montgomery v. Allis-Chalmers Mfg. Co. (Tex. Civ. App.), 164 S W. 2d 556; L. S. Ayres & Co. v. Hicks (Ind.), 40 N. E. 2d 334; Wheaton v. Goldblatt Bros., Inc., 295 Ill. App. 618 (15 N. E. 2d 64); Carlisle v. J. Weingarten, Inc., 137 Tex. 220 (152 S. W. 2d 1073); Walec v. Jersey State Electric Co., Inc., 125 N. J. L. 90 (13 Atl. 2d 301); Lewin v. Ohrbach's, Inc., 14 N. J. Super., 193 (82 Atl. 2d 4); Takashi Kataoka v. May Department Stores Co., 60 Cal. App. 2d 177 (140 Pac. 2d 467).
The plaintiff as he entered the bakery had the status of an invitee to whom the law requires ordinary care to be accorded.
The ultimate result so far as the question of the degree of care due the plaintiff is the same under the peculiar circumstances pleaded whether he was a licensee or an invitee, but since question of proof necessary to his recovery might be slightly varied, we feel that the determination of his relationship to the defendants is of such importance that it should be decided. It is well to observe that where, as in this case, an owner of property leases it to be used in the conduct of a business, those coming upon the premises in connection with the conduct of the business are invitees of the owner and proprietor alike. "A guest of a tenant is an invitee upon the premises of the landlord where he is invited by the tenant and visits him in such premises." Rothberg v. Bradley, 85 Ga. App. 477 (2) (69 S. E. 2d 293).
We have stated the duties which, according to the petitioner, devolved upon the owner and proprietor in the installation, maintaining, and operating the fan, and defined the degree of care owed by the defendants to the plaintiff. We now consider the sufficiency of the petition to show the defendants were negligent in the installation, maintaining, and operation of the fan. Code 105-401 provides: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe."
The petition alleged that the fan was a dangerous device, and that it was installed by both the defendants in a concealed position, where one entering the bakery could not observe and avoid coming in contact with it. The allegation was not a mere conclusion of the pleader, unsupported as contended by the defendants, but was a direct declaration of fact that needed no support from other averments. Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388 (1) (80 S. E. 916); Seaboard Air-Line R. Co. v. Stoddard, 82 Ga. App. 743 (62 S. E. 2d 620); Colonial Stores, Inc. v. Brewster, 89 Ga. App. 564 (80 S. E. 2d 81). There were facts alleged upon which the allegation referred to could have been based. Morgan v. Crowley, 91 Ga. App. 58 (6) (85 S. E. 2d 40); Georgia, Southern & Fla. Ry. Co. v. Williamson, 84 Ga. App. 167, 176 (65 S. E. 2d 444); Richardson v. Pollard, 57 Ga. App. 777 (4) (196 S. E. 199). The rather minute description of the fan's placement set out in the petition supported the averment that the fan was in a concealed position.
The question as to whether the placement and operation of the fan suspended seven feet above floor level was negligent, depends on whether the defendants should have reasonably anticipated that in the ordinary course of events persons lawfully entering the bakery would come in contact with it and sustain injury. The question cannot be resolved as a purely legal question because obviously it is one concerning which reasonable men might differ. Wright v. Southern Ry. Co., 62 Ga. App. 316 (3) (7 S. E. 2d 793). The jury in passing on the question might well reach the conclusion that children are commonly carried in the fashion the petition alleged the plaintiff was being borne by his father when he came in contact with the fan. The jury could logically conclude that reasonably prudent persons when entering the bakery were apt to raise their hands above their heads so as to be struck by the revolving blades of the fan. Hands are often raised aloft in gestures of salutation or in other usual gestures.
If injury to others should have been anticipated, it was not necessary that the exact event resulting in the plaintiff's injury be foreseeable. Williams v. Grier, 196 Ga. 327, 337 (26 S. E. 2d 698).
The defendants insist that the plaintiff's father, in carrying the child in the fashion described in the petition and failing to observe the fan, was guilty of negligence that constituted the paramount cause of the plaintiff's injury and served to insulate the defendants from liability. The plaintiff being of the tender age of nine months no question as to his want of care is involved. City Ice Delivery Co. v. Turley, 44 Ga. App. 32 (160 S. E. 517); Christian v. Smith, 78 Ga. App. 603, 606 (51 S. E. 2d 857). Nor is the negligence of his father imputable to him. Code 105-205; Atlanta, Birmingham & Coast R. Co. v. Loftin, 67 Ga. App. 601 (21 S. E. 2d 290); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, supra. The contention of the defendants is, however, predicated on the assumption that the father's conduct was the sole proximate cause of the plaintiff's injuries. The question is disposed of by our conclusion stated in the preceding division of this opinion that it would be a question of fact for the jury as to whether the fan was so situated that one entering the bakery might in the exercise of ordinary care have failed to discern its existence, and that it was likewise a question for the jury to decide whether it might be reasonably anticipated that an ordinarily prudent person might carry the child in the fashion described in the petition. The position of the fan was, according to the averments of the petition, so concealed that one entering the bakery could not discern its existence in time to avoid coming in contact with it. As was held in the preceding division of this opinion, the description of the fan's placement supported the allegation that an ordinarily prudent person might, before observing its presence, come in contact with it. In Lane Drug Stores v. Brooks, 70 Ga. App. 878, 884 (29 S. E. 2d 716) it is said: "A duty rests upon the occupier of land to exercise ordinary care to keep the premises safe for persons coming thereon by his invitation. Code 105-401. The invitee, in coming upon the land, may rely upon the discharge of this duty by the person occupying the land and in control of it, and therefore is not necessarily, and as a matter of law, guilty of negligence in failing to discover the existence of a patent defect in the premises which renders it unsafe for persons coming upon the premises. If the defect, though patent, is not of such a nature and character as necessarily to be seen in the exercise of ordinary care by a person coming upon the premises, and who has the right to rely upon the duty of the occupier of the premises to keep the premises safe, as where the defect is such as is here alleged, an invitee
coming upon the premises and using the alcove as a walkway, who without observing the defect, is tripped by it and injured, is not, as a matter of law guilty of negligence in not observing the defect in the walk. The jury was authorized to find that the occupier of the premises was guilty of negligence in knowingly maintaining the premises in the described condition. Rogers v. Sears, Roebuck & Co., 45 Ga. App. 772 (166 S. E. 64)."
Both defendants contend that the allegations of the petition that the "defendants" installed the fan stated an impossibility. We cannot agree with this contention. We conceive of no reason why it would be impossible or inherently improbable that the defendants by their joint act installed the fan.
A landlord is liable for constructional defects in the premises which he creates, including snares, pitfalls and mantraps. Cook v. Southern Ry. Co., 53 Ga. App. 723 (187 S. E. 274); Cobb v. First National Bank of Atlanta, 58 Ga. App. 160 (2), supra.
The defendant, Scarboro Enterprises, Inc., insists that no cause was alleged as to it because nothing it did was shown to have been the proximate cause of the plaintiff's injuries. It insists that the petition discloses that the fan, idle as it was when installed, was quite harmless; that its operation alone entailed the danger to those who might come in contact with it. The use of the fan in the precise manner employed by the defendant, Anderson, must have been contemplated by both defendants when it was installed, for indeed, it could hardly have been effective operated in a different way. Anderson-McGriff Co. v. Meisel, 85 Ga. App. 58, 67 (68 S. E. 2d 377); Milton Bradley Co. v. Cooper, 79 Ga. App. 302, 307 (53 S. E. 2d 761, 11 A. L. R. 2d 1019). So, according to the averments of the petition, one of the defendants was, under the principles discussed and authorities referred to, as much responsible for the plaintiff's injuries as was the other, such injuries having been proximately caused by their joint negligence.
We are of the opinion that the petition alleged facts which if proved would entitle the plaintiff to recover of both defendants, and disclosed no defense to his suit, which set forth a cause of action and was not subject to general demurrer.
T. J. Long, Ben Weinberg, Jr., B. Hugh Burgess, contra.
Wilson, Branch & Barwick, M. Cook Barwick, Thomas S. Bentley, for plaintiff in error.
DECIDED DECEMBER 4, 1957 -- REHEARING DENIED DECEMBER 18, 1957.
Saturday May 23 01:41 EDT


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