Newman v. Fox West Coast Theatres

MOORE, P. J.

Plaintiff sued appellant Fox Belmont Theatre Corporation and its manager, Scot H. Brown, for damages allegedly resulting from personal injuries suffered by reason of the negligent conduct of defendants. The jury returned a verdict against plaintiff in favor of defendant Brown but in favor of plaintiff against the corporation which appeals from the ensuing judgment.

On the night of the accident respondent and her sister, Edith, accompanied June Bachelder, Edith’s daughter, to appellant’s theater where defendant Brown, a friend of June, was manager. Brown greeted the party and directed the doorman to admit them without tickets. At the 10:29 break between the main features the three women left the auditorium and stood in the foyer, smoking. At the commencement of the second feature, while respondent returned to her seat, Edith entered the ladies’ rest room where she encountered two women, one apparently very ill. There were wet paper towels and blood on the floor; also considerable water extending to the lavatory door. Edith returned to the foyer and reported her observations to her daughter. June thereupon visited the wash room and observed the women and the wet floor. One woman requested aid in getting transportation home. June returned to the foyer, thence visited Brown’s office by use of an outside stairway, and reported the condition of the lavatory floor, the illness of the woman there and the latter’s need for transportation. After dispatching the two women in a taxicab, without looking into the ladies’ washroom, Brown and June returned to his office where they visited for about 45 minutes. Edith had in the meantime joined respondent in the auditorium, but did not mention the two women or the condition of the washroom. Thirty minutes later

[431]

respondent visited the ladies’ rest room and, upon entering, slipped and fell, receiving the injuries complained of.

Appellant contends that (1) respondent having paid no admission to the theater was not a business visitor but at best a licensee; (2) no actionable negligence was established; (3) the exoneration of its manager Brown necessarily relieved appellant of liability; (4) the trial court erred in giving and refusing certain instructions.

Appellant contends that respondent as a mere licensee took the premises in the condition in which she found them, and that it is not responsible to respondent as a licensee for injury resulting merely from a condition of the property. It is unnecessary, however, to discuss this question at any length. Even if it is assumed that respondent was a licensee rather than an invitee, appellant’s thesis is based upon a general rule of law which has no application to the facts here involved. While a number of California decisions have held that the duty owed by the owner or occupant of premises to a licensee is not much greater than that owed to a trespasser, to wit, that the licensee assumes the risks incident to the condition of the premises, and can recover only for “wilfull or wanton injury”