Cooper, by Next Friend v. Anderson Et Al., 96 Ga. App. 800, 101 S.E.2d 770 (1957)
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T. J. Long, Ben Weinberg, Jr., B. Hugh Burgess, contra.Wilson, Branch & Barwick, M. Cook Barwick, Thomas S. Bentley, for plaintiff in error.
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,
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,
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,
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.
1957
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