Dalon v. Golden Lanes, Inc.
Dalon v. Golden Lanes, Inc.
Concurring Opinion
(concurring):
Opinion of the Court
This negligence appeal arises out of a fight between two patrons, David Dalon and Tommy Carroll, on the premises of Golden Lanes, Inc. The jury returned a verdict in favor of Dalon against Golden Lanes in the amount of $26,000. The court denied Golden Lanes’ motions for a directed verdict, judgment notwithstanding the verdict, and a new trial, we affirm.
Dalon was a business invitee on the premises of Golden Lanes on November 8,1989. He was attacked and stabbed by Tommy Carroll, another business patron, while on Golden Lanes’ premises. Dalon claims Golden Lanes was negligent in
After presentation of the evidence, Golden Lanes moved for a directed verdict on the ground it had no reason to foresee that there would be a stabbing on its premises and that its security guard would have prevented the assault if Dalon had not left the security guard’s presence. The court denied the motion. Prior to closing arguments, the parties discussed jury charges. The court advised it was going to charge negligence and proximate cause as well as the duty of a business owner to provide reasonably safe premises. There was no specific discussion regarding contributory negligence. After the judge charged the jury, counsel for Golden Lanes objected to the court’s failure to charge contributory negligence. The court noted it had read the complaint and did not pick up contributory negligence as a defense during trial of the case although it was alleged in the answer. Counsel for Golden Lanes admitted he did not give the court a written request to charge on contributory negligence. The court refused to charge further on the issue and note it may have overlooked that fact that contributory negligence was an issue. After the jury verdict, Golden Lanes made a motion for a JNOV and alternatively for a new trial based on the court’s failure to charge contributory negligence. The court issued a written order denying both motions concluding no reasonable jury could find contributory negligence because of Dalon’s status as a minor and application of the sudden peril doctrine.
I.
Golden Lanes argues the court erred in denying its directed verdict motion because there was no evidence the actions of Carroll were foreseeable and therefore it had no duty to protect Dalon from the unforeseeable criminal acts of a third party. Further, if it had a duty to protect Dalon, there was no evidence it breached that duty.
Golden Lanes is an entertainment center which provides bowling, skating, batting cages, video games, go-carts, and a par-three golf course for its patrons. On the night in question, Dalon and some friends went to Golden Lanes to hit baseballs in the batting cages. During the course of the evening, Dalon and his friends struck up a conversation with several young women who were at the bowling alley. Dalon testified they were outside in the parking area when Carroll and some of his friends came by and made vulgar remarks to the young women. The girls responded that the boys would take up for them. Carroll turned around and came up to Dalon. Dalon stated he could smell alcohol on Carroll. At that point, Carroll verbally challenged Dalon and head-butted him in the nose. A fight ensued between Dalon and Carroll. During the course of the fight, Carroll told Dalon he was going to cut his throat. A security guard from Golden Lanes came outside and broke up the fight. Dalon testified the security guard spoke to Carroll by name and told him to go inside. Dalon stated Carroll again threatened to cut his throat in the presence of the security guard. Carroll went inside the bowling alley, and the security guard began talking to Dalon about what happened. Dalon stated Carroll came back outside a minute later and began yelling for him. The security guard told Carroll to go back inside. Carroll pulled out a knife and came at Dalon. At that point, Dalon ran from the presence of the security guard into the bowling alley. Carroll followed and stabbed him. During the entire time, Dalon testified he was yelling for help but no one from Golden Lanes assisted him, even after he was stabbed.
A business owner owes his invitees a duty to exercise reasonable care to protect them. However, he is generally not charged with the duty to protect his customers against criminal attacks by third parties unless he knows or has reason to know that criminal acts were occurring or were about to occur. Bullard v. Ehrhardt, 283 S.C. 557, 324 S.E. (2d) 61 (1984); Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E. (2d) 167 (1977); Callen v. Cale Yarborough Enterprises, 314 S.C. 204, 442 S.E. (2d) 216 (Ct. App. 1994), cert. denied, order dated Oct. 20, 1994.
In his brief, Dalon asserts he does not hold Golden Lanes responsible for the initial assault by Carroll, but rather contends it was the failure to exercise reasonable care by interceding or controlling Carroll after the initial attack that proximately resulted in the injury he sustained during the second fight. As phrased by Dalon, the issue is not “the provision of security; the issue is that once it provided security, it did so in a negligent manner.” Viewing the evidence in the light most favorable to Dalon, Golden Lanes was aware of Carroll’s apparent propensity to cause trouble and had permitted him to return to its premises despite the trespass notices issued by its security personnel. The officer on duty broke up the initial fight between Dalon and Carroll and heard Carroll threaten to cut Dalon’s throat. Rather than escort Carroll from the scene, the officer sent him back inside the bowling alley and began to question Dalon. Carroll re
II.
Golden Lanes argues the court erred in failing to charge contributory negligence and, therefore, it is entitled to a new trial. We disagree.
Golden Lanes alleged contributory negligence as an affirmative defense in its answer.
It is the trial court’s function to charge the jury on the applicable law as raised by the pleadings and supported by the evidence. McBeth v. TNS Mills Inc., 318 S.C. 388, 458 S.E. (2d) 52 (Ct. App. 1995); Ellison v. Parts Distributors Inc., 302 S.C. 299, 395 S.E. (2d) 740 (Ct. App. 1990). In order to warrant reversal for failure to give a requested charge, the refusal must be both erroneous and prejudicial. Id; McCourt by and through McCourt v. Abernathy, 318 S.C. 301, 457 S.E. (2d) 603 (1995).
While Rule 51 contains permissive language with respect to the timing of the filing of a request to charge, and does not specifically bar a request to charge that is made after the jury is charged, we hold the trial court did not, under the circumstances of this case, abuse its discretion in failing to charge contributory negligence. The trial court held a charge conference and announced to the parties the substance of his intended jury charge. There was no mention of contributory negligence. Moreover, there was no specific mention of it by either counsel to the jury. In rejecting Golden Lanes’ objection to the charge, the trial court stated, “I will note your objection, but I didn’t pick up during the entire trial that [contributory negligence] was a defense____” Even at this point, counsel for Golden Lanes did not propose any specific instruction on contributory negligence.
Golden Lanes also contends the court erred in failing to grant a new trial based on its failure to charge contributory negligence. In its order denying Golden Lanes’ motion for a new trial, the trial court ruled contributory negligence was not an issue in the case because Dalon was a minor and the sudden peril doctrine applied. Dalon was approximately sixteen years old when the incident occurred. Since Dalon was over fourteen years of age, his conduct was to be judged by an adult standard of care as opposed to that of a minor. McCormick v. Campbell, 285 S.C. 272, 329 S.E. (2d) 752 (1985). Additionally, application of the sudden peril doctrine is ordinarily an issue for the jury to decide under the particular facts of each case. See Young v. Livingston, 247 S.C. 385, 147 S.E. (2d) 624 (1966). Nevertheless, in light of our holding that the trial court did not abuse its discretion in refusing to charge contributory negligence, we are also constrained to hold no error in denying the motion for a new trial.
Accordingly, the order of the trial court is
Affirmed.
The officer on duty that night testified he broke up the initial fight between Dalon and Carroll and sent Carroll inside the building. He did not send anyone with Carroll because he was the only officer working that night. When Carroll came back outside, the officer heard him yell he was going to cut
The incident occurred on November 8, 1989. This was before the court’s prospective adoption of comparative negligence for causes of action arising on or after July 1, 1991. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E. (2d) 783 (1991).
Reference
- Full Case Name
- David DALON, Respondent v. GOLDEN LANES, INC., Appellant
- Cited By
- 23 cases
- Status
- Published