Summary
In Taylor v. Palmetto Theater Co., 204 S.C. 1, 28 S.E.2d 538 (1943), the plaintiff, a Columbia city firefighter, responded to a fire alarm at a building adjoining the Palmetto Theater ("Theater"). While performing his duties as a firefighter he was hurrying through a walkway owned by the Theater when he fell into an inadequately guarded pit and suffered injuries.
Summary of this case from Minnich v. Med-Waste, Inc.Opinion
15585
December 16, 1943.
Before G. DUNCAN BELLINGER, J., Richland County, June, 1943. Reversed.
Action by P.H. Taylor, a Fireman of the City of Columbia, against the Palmetto Theater Company for injuries sustained when Plaintiff, while in performance of his duties as a Fireman, fell into a pit maintained by the Defendant in a passageway on the premises of the Defendant. Defendant moved to strike out certain portions of the Complaint. From an Order of Judge Bellinger granting the Motion to Strike Out, Plaintiff appeals.
The Complaint, ordered to be reported with the stricken portions in italics, follows:
The plaintiff above named complaining of the defendant above named alleges:
(1) That the plaintiff is a citizen and resident of the County of Richland, State of South Carolina, and was at all times hereinafter mentioned in the employ of the City of Columbia, being a member of the Fire Department of said city.
(2) That the defendant is and was at all the times hereinafter mentioned a corporation duly created, organized and existing under the laws of the State of South Carolina, and engaged in business in the City of Columbia, S.C.
(3) That the defendant owns, operates or controls several moving picture theaters in the City of Columbia, S.C. and, as plaintiff is informed and believes, also owns, controls or has an interest in, either as an affiliate or parent corporation, numerous other motion picture theaters throughout the State and nation, and has property, franchise rights and other assets of great value and from which it earns large sums of money.
(4) That at all times hereinafter mentioned the defendant, The Palmetto Theater Company, was the owner of and in possession and control of a lot of land with the building thereon on the east side of Harden Street, between Blossom and Devine Streets, in the City of Columbia, S.C. and has for several years past used said premises, including the building located thereon, for the operation of a moving picture theater to which it invited the public to attend.
(5) That shortly after defendant purchased said lot in 1938 it had erected a building thereon and at and about the same time had constructed, or permitted and suffered to be improperly, negligently and dangerously constructed, and thereafter maintained, a cement pit on the said premises, having a depth of 10 to 12 feet, and which created a situation which was likely to cause death or serious injury to any person entering on said premises in ignorance thereof; said pit having been constructed in connection with a stairway or walkway used as an exit from said theater building.
(6) That the said pit was constructed and located in a passageway leading from the rear of defendant's said premises to Harden Street, and which said passageway ran between the north side of the building used by the defendant as a theater and the south side of the building located on the premises immediately to the north of defendant's said premises.
(7) That for some time prior to the time that plaintiff was injured, as hereinafter set forth, the public generally had used the alley in the rear of the defendant's premises, as well as the said passageway above mentioned and the paved area, walkway or driveway hereinafter mentioned, with the knowledge, acquiescence and consent of the defendant, and the defendant having expected and invited the plaintiff as well as other firemen and policemen to enter upon said premises whenever necessary in the performance of their official duties.
(8) That at the time or after the said cement pit was constructed on the said premises the defendant realized that it had created a condition on its said premises which was likely to cause serious injury or death to persons lawfully coming on said premises, and that in an effort to prevent such injury it had constructed around the edge of said pit an iron railing about four feet high so as to prevent any person using said passageway from falling in the said pit.
(9) That some time after or about the time of construction of said cement pit, and some time prior to November, 1941, the defendant had constructed and has since maintained a paved area, walkway or driveway running from the rear of defendant's premises along and inside said passageway between defendant's building and the other building above mentioned in such manner and in such fashion as to give the impression and wrongfully lead persons lawfully coming on said premises to believe that the said walkway or driveway extended to Harden Street and that the same was an egress or passageway from the rear of defendant's said premises to the said Harden Street. That at the time the defendant constructed the said cement walkway or driveway it raised the level of the passageway leading up to the said cement pit to such an extent that the iron railing guarding the same was left only about a foot high or even lower above the level of said passageway and thereby creating and leaving a condition which was particularly dangerous to persons lawfully coming on the said premises in the nighttime without knowledge of such conditions. That the defendant negligently and willfully failed to keep or maintain any light or other warning thereabouts or to in any manner give notice or warning to persons lawfully coming on said premises of the existence of such dangerous conditions thereon.
(10) That on or about the 18th day of November, 1941, and during the nighttime, the fire department of the City of Columbia was called over telephone to go and put out a fire in the rear of a store and meat market adjoining or immediately in the rear of the said premises of the defendant.
(11) In pursuance of his duties as a fireman for the City of Columbia the plaintiff answered said call along with other members of the fire department. That while he was in the course of the performance of his duties, and being immediately in the rear of the above-mentioned premises of the defendant, he was ordered by his superior officer to immediately obtain certain fire apparatus, which was then parked on said Harden Street, for use in putting out the said fire and in order to prevent the same from spreading to and damaging the property of the defendant.
(12) That the plaintiff in an effort to reach Harden Street as soon as possible for the purpose of getting the said fire apparatus, and while passing through said passageway in the performance of his duties as a fireman of the said City of Columbia, and during the nighttime, was suddenly precipitated into and down the said excavation or pit therein; as a result of such fall the plaintiff suffered and sustained serious and severe injuries to his head, shoulder, arm, eyes, ears and other parts of his body and permanent and serious impairment to his eyesight and also to his nervous system, which impairments will continue and progress; that as a result of such fall plaintiff also suffered complete paralysis of the left upper extremity following injuries to the brachial plexus and sustained serious injury to his spine as well as to his back and shoulder and the dislocation of the fingers on his hands and fracture to the bones of the hands; that the plaintiff is informed and believes that his injuries as aforesaid will be permanent and that he will be permanently disabled and caused to suffer continuous pain for the rest of his life; and as a result plaintiff as years go on will undoubtedly need and will be forced to undergo medical and hospital treatment costing large sums of money. By the happening of said injury plaintiff has been permanently injured and totally disabled and rendered totally unfit for the balance of his life to pursue his vocation in life.
(13) That plaintiff's said injuries and damage were due to, caused and occasioned by and followed as a proximate result of the negligence, carelessness, willfulness and wantonness of the defendant in that:
(a) It constructed and maintained, or permitted and suffered to be constructed and maintained the said cement pit in such manner as to constitute the same a pitfall or entrapment which it knew, or reasonably should have known would constitute an extreme danger to the plaintiff and other persons lawfully entering upon its said premises and who would or might use said premises without knowledge of said conditions; and further constructed and maintained said pit in violation of the Ordinances of the City of Columbia.
(b) In constructing and maintaining a paved area, walkway, or driveway, running from the rear of defendant's premises along, up to, and inside the opening between the two buildings described in the complaint in such manner and in such fashion as to give the impression and appearance and to wrongfully lead persons, and especially this plaintiff, who might lawfully come upon the said premises to believe that the said paved area, walkway, or driveway, extended from the rear of said premises to Harden Street and that same was an egress or passageway to Harden Street, and further, in failing to give proper notice or warning to the public and this plaintiff of such condition.
(c) It left and maintained said pit and passageway in an open and not sufficiently guarded condition and without having any lights or other means of warning the plaintiff or other persons who might lawfully come on said premises of the dangerous condition existing thereon;
(d) It constructed and maintained a dangerous and unsafe condition on its said premises which constituted a pitfall or death trap to persons lawfully coming on said premises, which condition was known to defendant and unknown to the plaintiff, and without giving any timely and sufficient notice or warning to the public, or those who were likely to use said premises, of such condition.
(e) It constructed and maintained a dangerous artificial condition on this said premises, knowing, or having reason to know that it involved an unreasonable risk to persons lawfully entering said premises for a public or private purpose, and having no reason to believe that such persons would discover the condition or realize the risk, and without exercising any care whatsoever to make the condition reasonably safe, or to warn such persons of the condition and the risk involved therein.
(14) That by reason of the negligent, reckless and willful acts and conduct of the defendant set forth herein the plaintiff has been damaged in the sum of Fifty Thousand ($50,000.00) Dollars.
Wherefore plaintiff prays judgment against the defendant for the sum of Fifty Thousand ($50,000.00) Dollars and the costs of this action.
Messrs. Cooper Cooper, and Mr. E.W. Mullins, all of Columbia, S.C. Counsel for Appellant, cite: As to Obligations Owed To An Invitee: 20 R.C.L., p. 55, Negligence, Sec. 51; 67 S.C. 499, 46 S.E., 366, 65 L.R.A., 286; 184 S.C. 130, 191 S.E., 895; 196 S.C. 386, 13 S.E.2d 921; 151 S.C. 280, 148 S.E., 870; 64 S.C. 7, 41 S.E., 810; 116 S.C. 319, 108 S.E., 94; 111 S.C. 359, 98 S.E., 132; 56 Minn., 460, 463, 57 N.W., 1132, 1133; (C. C.A., 6C), 99 F.2d 601. As to Allegations Tending To Show That Passageway Was Intended To Be Used, And Had Been Used, By General Public In The Manner Plaintiff Was Using It: 229 N.Y., 10, 127 N.E., 491, 13 A.L.R., 633; 138 Mass. 315; (Ill., 1942), 42 N.E.2d 128; 72 Me., 213, 39 Am. Rep., 331 (1881); Harper's Law Of Torts (1933), p. 224. As to Status of A Fireman Using Premises Under Circumstances Of Instant Case, And Duty Owed Him By Owner Of Premises: (Ill., 1942), 42 N.E.2d 128; (C.C.A., 4C, 1942), 131 F.2d 848; Harper's Law Of Torts, p. 223; 121 W. Va., 493, 5 S.E.2d 117, 118; 115 S.C. 168, 104 S.E., 567, 13 A.L. R., 1268; A.L.I. Restatement Law Of Torts, Secs. 334-335, inc., and Secs. 340-342, inc. As to Allegation That "Defendant constructed and maintained said pit in violation of the Ordinance of the City of Columbia": 13 A.L.R., pp. 647, 648, Ann.; 130 S.C. 165, 170, 125 S.E., 651, and cases therein cited; 47 S.C. 28, 24 S.E., 992; 76 S.C. 550, 57 S.E., 525.
Mr. Roger M. Heyward, Mr. C.T. Graydon, and Mr. F. Ehrlich Thompson, all of Columbia, S.C. Counsel for Respondent, cite: As to Status Of Appellant At the Time Of Injury: 348 Mo., 1216, 159 S.W. 260. As to Duty Owed Appellant As a Bare Licensee: 348 Mo., 1216, 159 S.W.2d 260; (Okla), 53 P.2d 555; (Col.), 110 P., 203, 30 L.R.A. (N.S.), 72; (R.I.), 29 A., 6, and 31 A., 582. As to Allegation That "Defendant Constructed And Maintained said pit in violation of the Ordinances of the City of Columbia": 165 S.C. 367, 163 S.E., 881. As to Plaintiff Being, Compulsorily, Under Operation Of Workmen's Compensation Act: 177 S.C. 240, 181 S.E., 41; Code of S.C. 1942, Sec. 7035-8.
December 16, 1943. The Unanimous Opinion of the Court was delivered by
In the light of the petition for a rehearing herein, the opinion heretofore filed is withdrawn from the files of the Court, and the opinion following is substituted therefor.
The complaint in this action will be reported, showing the stricken portions thereof in italics, as shown in the Transcript of Record.
The exceptions do not require that we now pass upon whether the order appealed from correctly sets forth the duty owed by the respondent to the appellant if the appellant entered upon its premises solely by reason of his legal right so to do in the discharge of his duties as a fireman, since the complaint goes further than this, as will be seen by reference to Paragraph seven (7) thereof, and alleges that "the public generally had used * * * the said passageway above mentioned and the paved area, walkway or driveway hereinafter mentioned, with the knowledge, acquiescence and consent of the defendant," and that the respondent (defendant) thereby expected and invited the appellant (plaintiff) and other firemen to enter upon said premises whenever necessary in the performance of their official duties.
The respondent moved to strike from the complaint all of the italicized portions thereof upon the ground that such allegations are irrelevant, sham and frivolous, and state no cause of action, or part of a cause of action. The order appealed from granted the motion.
Upon a careful analysis of the complaint, and liberally construing the same in favor of the pleader, as we must do, it alleges an invitation extended to the general public to use this passageway or walkway, and that relying on this invitation and the fact that such use was made thereof by the general public with the at least implied acquiescence of the respondent, the appellant entered thereupon while in the performance of his duties as a fireman, and suffered the injuries of which he complains. In other words, that the appellant entered upon the walkway or passageway as a member of the general public, although in the discharge of his duties as a fireman, and was therefore an invitee or licensee
In the circumstances alleged in the complaint, the fact that the appellant was a fireman, and in the discharge of his duties as such, should not limit his cause of action to the right or permission to enter the premises of respondent extended by the law. Of course, upon a trial of the case the appellant will have to establish by competent testimony that the general public (as the complaint alleges), "used the alley in the rear of the defendant's premises, as well as the said passageway above mentioned, and the paved area * * * with the knowledge, acquiescence and consent of the defendant * * *" at the place where the appellant alleges he was injured; otherwise any cause of action the appellant may have against the respondent for his injuries will be governed by the law applicable to a fireman or other municipal employee who goes upon privately owned premises in the discharge of his duty.
What we have said above disposes of all of the stricken portions of the complaint except the allegation in Sub-div. (a) of Paragraph 13, and reading: "and further constructed and maintained said pit in violation of the Ordinances of the City of Columbia."
It is not necessary that the ordinance of a city of this State be pleaded in haec verba, although proof of such city ordinance must be made in order for it to be considered. If there is an ordinance of the City of Columbia which is apposite, and it was intended for the protection of one entering the premises of respondent under the circumstances the appellant entered thereon, then the appellant should have the advantage thereof when the ordinance is properly placed in evidence.
The order appealed from is reversed, and the respondent will have twenty days from the filing of the remittitur in which to file its answer or further plead as it may be advised.
Reversed.
MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES, and CIRCUIT JUDGES T.S. SEASE and E.H. HENDERSON, ACTING ASSOCIATE JUSTICES, concur.