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Tort; invitee, demurrers, etc. Before Judge Shaw. Fulton Superior Court. April 13, 1956.
1. While the plaintiff cannot by amendment introduce an entirely new cause of action, he may nevertheless add a new count substantially different from the first declaration, provided he adheres to the original cause of action, thus alleging factual elements in different ways so as to meet conflicting proof.
2. Since neither count of the petition alleged facts which would warrant the conclusion that the defendant theatre company should in the exercise of ordinary care have discovered and removed the beer can from the pavement on which the plaintiff stumbled and fell, no actionable negligence is alleged, and the trial court did not err in sustaining the demurrers to the petition.
Ralph Jones filed an action for damages in Fulton County Superior Court against West End Theatre Company for personal injuries sustained by him while an invitee of the defendant in the Bankhead Drive-In Theatre. The petition as amended is in two counts which are identical except for one paragraph hereinafter discussed. Both counts allege that the theatre is an outdoor, open-air amusement area to which the public is invited for the purpose of observing motion picture shows while seated in automobiles; that it is an enormous fenced-in area accommodating approximately 800 automobiles which are parked on parking ramps around the screen, that the theatre area is constructed of an asphalt substance, and terraced with a series of parking ramps, the leading edges of which are elevated above each other by terraces approximately three feet in height; that the defendant operates a concession in front of the screen and by means of notices flashed on the screen invites patrons to come to the concession area; that when pictures are showing vehicles are required to extinguish their lights upon entering the viewing area and the area is very dimly lighted; that at 9:30 p.m. "the first showing of the picture was interrupted," the area was lighted by flood lamps, and the plaintiff left his automobile for the first time and "proceeded between the cars parked on the terraced levels in front of him, down the incline and over the elevated ramps upon which other vehicles were parked" to the concession stand, made some purchases and while so doing "the flood lights which had illuminated the theatre area were extinguished by the defendant and the area was again plunged into darkness. The plaintiff attempted to walk between the parked cars and climb the elevated terraces of the parking ramps to return to his automobile and in doing so stepped on an empty beer can and was "plunged to the asphalt floor of the theatre area, pitching down one of the elevated terraces or parking ramps" and suffered a broken leg and other personal injury. The petition alleges negligence in that the defendant, who knew that refuse was disposed of through car windows nightly by patrons of the theatre, should have anticipated that the plaintiff could step on such objects and failed to warn him of this danger; that it failed to warn him of the uneven terrain and dangerous construction of the parking area, and in failing to provide safe stairs, paths, walkways or other designated routes or accessways between the parked car and the concession stands. Count 1 alleges that as the plaintiff traversed the area to the concession while the lights were on there was no beer can on the pavement, and that as he returned over the same route the beer can was present. Count 2 alleges that because of the
darkness and shifting of cars the plaintiff returned by a different route and there stepped on the beer can.
General and special demurrers were filed to the petition and renewed to the petition as amended. The general demurrers were sustained (the special demurrers not having been passed upon and the petition was dismissed. This judgment is assigned as error.
1. The only difference between the first count of the petition and the second count which was added by amendment is that in the first it is alleged the plaintiff returned to his car by the same route as the one by which he went, while in the second it is alleged that he returned by a second route. Both counts show the same transaction, the same right on the part of the defendant, and the same injury. It was not, accordingly, error to allow the amendment. Milton v. Milton, 195 Ga. 130 (3) (23 S. E. 2d 411); Spence v. Erwin, 200 Ga. 672 (3) (38 S. E. 2d 394); Marwell v. Harrison, 8 Ga. 61 (2) (52 Am. D. 385). It is perfectly permissible to add a new count by amendment in which the details of the transaction are varied to meet conflicting proof, and even as against the empirical argument that the plaintiff should necessarily know in which direction he walked, the deviation in factual allegation in the two counts does not make it subject to demurrer.
Johnson, 120 Ga. 1030 (48 S. E. 438); Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97 (64 S. E. 302)." United Theatre Enterprises, Inc. v. Carpenter, 68 Ga. App. 438 (23 S. E. 2d 189). "The rules governing the land proprietor's duty to his invitee presuppose that the possessor knows of the condition and 'has no reason to believe that they (his invitees) will discover the condition or realize the risk involved therein.' 2 Restatement, Law of Torts, 343." Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 573 (56 S. E. 2d 828). Count 1 of the petition fails to set out a cause of action because there is no allegation therein of knowledge of the defendant that the obstacle in the path of the defendant, a beer can, was present at the time the plaintiff was invited to come down to the concession stand. Only constructive knowledge on the part of the defendant is alleged, and it affirmatively appears that the beer can was not on the ground for more than 10 or 15 minutes at the most. The lights only stayed on between shows for that length of time, and in view of the alleged area of the parking grounds it would appear that the brief intermission between shows would not offer sufficient time to patrol the area for every bit of rubbish thrown to the ground, nor is it alleged that the defendant attempted to do so, but only that it cleaned up the grounds "nightly." A person attending a drive-in theatre where there are up to 800 cars, each containing one or more occupants and where there is a concession stand selling popcorn, soft drinks and like articles, must necessarily be aware that some of those persons would be likely to throw or discard some of their accumulated trash and beverage containers on the pavement below, and since he was present he is chargeable with knowledge that no attempt was made to clear up the terrain between the first and second shows. See in this regard Rogers v. Atlanta Enterprises, Inc., 89 Ga. App. 903 (81 S. E. 2d 721). it should also be reasonably anticipated that patrons in cars will bring such containers onto the premises and discard them while in attendance. Nor is the petition aided materially by the other allegations that the defendant was negligent in failing to provide steps and walkways, failing to light the terraces and failing to light the area adequately. There must necessarily have been passageway over a part of the area other than by climbing the terraces since automobiles were provided with access. As to lighting, the plaintiff knew that the lights were dim for the purpose of viewing the screen since he drove into the area and parked at a time when there were no lights, and he further necessarily knew that the intermission between the pictures would not last indefinitely. As was pointed out in Rogers v. Atlanta Enterprises, Inc., supra, the plaintiff knew as well as the defendant that "the amount of light in a moving picture theatre which would be necessary to clearly show up defects on the floor or carpet would be such an amount of light as would necessarily impair the visibility of the picture." We do not hold, however, that this petition necessarily shows such negligence on the part of the plaintiff as to bar recovery, but do hold that it does not allege sufficient negligence against the defendant to sustain the action. In Hill v. Davison-Paxon Co., 80 Ga. App. 840, 842 (57 S. E. 2d 680), where the court affirmed dismissal of a petition alleging that a department store was negligent in allowing water to accumulate near the entranceway during a rainstorm, so that the plaintiff slipped and fell on the floor, it was pointed out that "the storekeeper would not, as a matter of law, be required to keep this water removed at all times unless, due to some peculiarity of the floor or otherwise, its presence there created a hazard beyond that created on other areas, such as sidewalks, similarly constructed of concrete. Since this does not appear, the defendant was under no independent duty at all times to know of the presence of the water in order to remove it. Therefore, the allegation that 'the defendant knew of the presence of said water on the floor or in the exercise of ordinary care should have known of it' amounts only to an allegation of implied knowledge, and is insufficient for that reason. See Babcock Brothers Lumber Co. v. Johnson, 120 Ga. 1030 (48 S. E. 438)." It would impose too great a duty upon the proprietor of a place of amusement and would make him the insurer of the safety of all patrons, which he is not, to require him at all times to have immediate knowledge of and to remove every article on which a patron might stumble and fall when the article is placed there, not by the defendant or its employees, but by other patrons. It affirmatively appearing that the beer can had not been present for more than 10 or 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it. Count 1 fails to
set out a cause of action and the demurrer was properly sustained. Sheraton Whitehall Corp. v. McConnell, 88 Ga. App. 725 (77 S. E. 2d 752), Wicker v. Roberts, 91 Ga. App. 490 (86 S. E. 2d 350), Rogers v. Sears Roebuck & Co., 45 Ga. App. 772 (166 S. E. 64), Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623 (126 S. E. 388), and Robertson v. Liggett Drug Co., 81 Ga. App. 850 (60 S. E. 2d 268), cited by the plaintiff, deal with defects in the construction and maintenance of the building or approaches of which the defendant necessarily knew. Miller v. Bart, 90 Ga. App. 755 (84 S. E. 2d 127), and King Hardware Co. v. Teplis, 91 Ga. App. 13 (84 S. E. 2d 686) deal with negligence of the defendant's employee, of which the employee necessarily had knowledge which was chargeable to the defendant. No such knowledge is shown here, nor is a length of time shown such that the defendant in the exercise of ordinary care would have discovered the condition. While the case of Duren v. City of Thomasville, 92 Ga. App. 706 (89 S. E. 2d 840) is cited on the proposition that what is a reasonable time to put a defendant on notice of a defective condition is usually a jury question, the time alleged in that petition was two months or more. Accordingly, these cases are not controlling here.
(b) As to count 2 of the petition, it is alleged that the beer can "had apparently been there for at least 24 hours as it had the appearance of having been out in the elements for a considerable length of time . . . and defendant in the exercise of ordinary care had the opportunity to remove the beer can, and was negligent in not doing so before petitioner stumbled thereon." Assuming that an allegation that the can had been there 24 hours coupled with allegations that the defendant, who had been operating the theatre for 2 years, knew that refuse including beer cans was discarded nightly by patrons from their cars and therefore did in fact clean up the premises every night, would together make a jury question as to whether the can had been on the ground a sufficient length of time for the defendant in the exercise of ordinary care to have discovered and removed it, the mere allegation that the can "had the appearance of being out in the elements a considerable period of time" is not an allegation that it was on defendant's premises for a period of time such as to charge him with notice thereof. Count 2 of the plaintiff's petition like count 1 fails to allege facts showing that the can over which the plaintiff stumbled was on the premises a sufficient length of time for the defendant in the exercise of ordinary care for the safety and protection of its patrons to have removed it from the premises. Accordingly, the judgment of the trial court sustaining the general demurrer to both counts must be
Affirmed. Gardner, P. J., and Carlisle, J., concur.
Robert E. Hicks, Nall, Sterne, Miller, Cadenhead & Dennis, contra.
Grace W. Thomas, for plaintiff in error.
Saturday May 23 02:28 EDT

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