Belk-Hudson Co. v. Davis
Belk-Hudson Co. v. Davis
Opinion of the Court
Mrs. B. D. Davis brought suit against the proprietor of a clothing and dry goods store seeking to recover for injuries which she allegedly sustained in a fall on the premises while proceeding up an aisle to the front of the store carrying packages in her arms. She alleged in her complaint that "she was violently and forcefully knocked and thrown down by youths who were running, pushing and shoving in said business establishment,” and that defendant was negligent " in knowingly permitting said youths to run, push, shove, and play in said business establishment thereby doing injury to the plaintiff as
1. (a) "1. It is the duty of one who invites members of the general public to come to his place of business to protect such customers or invitees from injury caused by misconduct of his own employees in the conduct and scope of his business, and from the misconduct of other persons who come upon the premises.
"2. If the conduct of such employees outside of the scope of their employment, or of third persons or customers, is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury.
"3. This duty of inter ference on the proprietor’s part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger. ” Great Atlantic & Pacific Tea Co. v. Cox, 51 Ga. App. 880 (181 SE 788). (Emphasis supplied.) Thus where the proprietor has no notice of dangerous conduct on the part of customers or third persons on the occasion in question, he cannot be held liable for injuries to an invitee resulting from that conduct. Great Atlantic & Pacific Tea Co. v. Cox, 51 Ga. App. 880, supra; Davidson v. Harris, Inc., 79 Ga. App. 788 (54 SE2d 290) and Davidson v. Harris, Inc., 81 Ga. App. 665 (59 SE2d 551); Lincoln v. Wilcox, 111 Ga. App. 365 (141 SE2d 765). See also Stewart v. Mynatt, 135 Ga. 637, 639 (3) (70 SE 325); Covington v. S. H. Kress & Co., 102 Ga. App. 204 (115 SE2d 621); Shockley v. Zayre of Atlanta, Inc., 118 Ga. App. 672 (165 SE2d 179).
(b) Construing the evidence in a light most favorable to plaintiff in the instant case, we are constrained to hold that she has failed to produce evidence to show that defendant’s manager or other
(c) Plaintiff contends that since defendant’s employees knew that children had played in the store on other occasions while their parents were shopping, defendant should have foreseen that they would do so on this occasion. Of course everyone knows that children will play, that crowds will jostle, and that rain will fall and be tracked into stores. The question remains, however, as to the duty required of the proprietor under these circumstances.
"In a number of cases the alleged failure of the
There is no evidence in the record that anyone had previously been injured in defendant’s store as a result of children running and playing. The only evidence that children were even playing on the occasion in question was the testimony of plaintiff. If any danger should have been apprehended from this situation, plaintiff had knowledge of it equal or superior to that of defendant, which had no actual knowledge. " 'The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he had invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ ” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (138 SE2d 77).
Thus although a proprietor may know that water
2. Remaining enumerations of error are not passed upon.
Judgment reversed with direction.
Dissenting Opinion
After verdict, the evidence is to be construed in such manner as to uphold the decision of the jury if possible. There is testimony in this case that the store manager complained, immediately after the plaintiff was knocked down by children running in the store that "I have watched them play all over my store and it worries me” and that people turned children loose in the store "like a bunch of hogs.” There was also evidence that children were running and playing in the store as the plaintiff entered, and that it was very crowded. There is also evidence that the manager was present on the premises, although he may not have been on the floor at the moment of the accident.
It is the duty of the proprietor, by himself or his employees, to interfere where there is reasonable apprehension of danger to customers and others lawfully on the premises. Great A. & P. Tea Co. v. Cox, 51 Ga. App. 880 (181 SE 788). This involves a question of foreseeability, where there is evidence that the same condition has occurred at a prior point in time. Shockley v. Zayre of Atlanta, Inc., 118 Ga. App. 672 (165 SE2d 179). I believe that whether or not the defendant, through its manager and other employees, should have apprehended danger from children running (they having previously been put on notice that this occurred in the store, and having failed to take effective steps as to this particular incident) in view of the testimony of the manager and two other witnesses that they had seen children running and playing in this manner "quite a few times” before, the factual situation is such that it was for the jury to determine whether the defendant’s employees took the reasonable precautions which an ordinarily prudent person would do under these circumstances and with this knowledge to attempt to control the irresponsible playing of children within the building. The jury found that they did not.
On re-examining the evidence I am convinced that
Reference
- Full Case Name
- Belk-Hudson Company v. Davis
- Cited By
- 16 cases
- Status
- Published