Wheeler v. Jones

ELLETT, Justice:

The plaintiff, Brent Wheeler, a twelve-year-old lad, paid twenty cents for the privilege of swimming in a pool operated in connection with defendants’ business .of selling garden supplies and swimming pools and equipment. The pool was'used exclu*394sively by children from four to fifteen years of age. Approximately thirty-six children per day were permitted to swim in the pool in groups of twelve per each two-hour shift.

Entrance to the pool was through a doorway leading from the store which could be closed by a sliding glass door. Plaintiff had been in the pool on two other occasions, and at all times the glass panel had been slid so that the doorway was open. On the day in question plaintiff entered the store from the pool area to look at a clock to check the time he had remaining of his two-hour swimming session. While he was swimming, someone had partly closed the glass panel, so that the middle part of the frame divided the doorway. Plaintiff entered through the doorway without mishap, set his watch to agree with the clock on the wall, and walked into the glass part of the panel which blocked his exit. The glass fractured, and he received lacerations, for which he sues through his guardian ad litem.

He claims the defendants were negligent in failing to have a horizontal metal bar across the sliding door or in not having a decal posted on the glass to give warning and draw attention to the glass obstruction across the doorway. He also claims that the defendants should have replaced the ordinary glass in the sliding door with a form of safety glass.

On a special verdict he failed to get a favorable finding on his claims of negligence except that in regard to the lack of safety glass. The jury answered that the defendants were negligent “in maintaining a glass of thickness of the type in the sliding door in question insufficient to withstand ordinary bumping without breaking or which would remain intact after breaking.” The jury further answered that such negligence was a proximate cause of plaintiff’s injuries.

In answer to another question the jury found that the plaintiff was not himself contributorily negligent.

The court ordered judgment to be entered upon the special verdict, and the defendants appeal therefrom.

We must affirm if there is substantial evidence to sustain these findings unless there is reversible error in rulings made by the court.

The question of negligence of the defendants is predicated upon their leaving a weak, dangerous type of glass in the sliding door after the community at large became aware of the perils involved in having such glass in the door. The type used would rupture at one-fifth the pressure of tempered glass and would break with sharp jagged edges, while tempered glass when broken would fracture into very small particles and be harmless so far as cutting a person is concerned. There were two other types *395of glass considered safe for sliding doors, namely, laminated glass consisting of two sheets of glass with a plastic interlay in between, and glass with an imbedded wire mesh, both of which prevent sharp edges from occurring when the glass is broken.

The defendants did not install the glass in the door and claim that since sheet glass looks like tempered glass, they could not be negligent in failing to replace it. The expert witness said .that tempered glass had “nipple marks” near the edge where the glass was held by tongs while being tempered, and one could tell tempered glass by looking for these marks.

The expert witness further testified that in 1963 “it [the community] was becoming quite aware that these sliding glass doors were dangerous.” He further testified that all schools and churches where the children were involved use such safety glass in sliding doors and that the F. H. A. specifications prevented the use of ordinary glass in such doors unless the door was equipped with a horizontal metal bar.

Plaintiff’s counsel then asked the question, “Now, does F. H. A. have any other requirements on sliding glass doors other than the bar?” An objection was made by the defendant and overruled by the court, who stated, “You may answer the question, and the jury may consider it as standards of the community.”

It will be noted that the court did not say that it was the standard of the community— rather, he seeemed to imply that it was one of the standards of the community in determining whether or not the defendants were negligent.

We think the testimony was proper to show the knowledge of the danger involved and how extensive that information had become. The defendants claimed that they did not know there was any danger in the glass in .the door, so this evidence would be helpful in determining whether they should have known of such danger. The testimony given was to show danger. and knowledge thereof in order for the jury to determine the question of negligence or lack thereof. The answer of the witness seems harmless in view, of the testimony theretofore given, for the witness replied, “Yes. F. H. A. definitely requires a bar in sliding glass doors or a type of safety glass for all construction financed by F. H. A.”

While it is true that the weight of authority is against allowing regulations such as those of F. H. A. to be given in evidence, yet there is a respectable authority permitting such evidence to be received. See City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 122 A.L.R. 637; Smith v. Iowa Public Service Company, 233 Iowa 336, 6 N.W.2d 123; Vaught’s Admrx. v. Kentucky Utilities Company (Ky.), 296 S.W.2d 459; Layne v. Louisiana Power & Light Com*396pany (La.App.), 161 So. 29, affd. 164 So. 345 and modified on other grounds 164 So. 672; Webb v. Louisiana Power & Light Company (La.App.), 199 So. 451; annotation in 75 A.L.R.2d 778, § 3 at 783.

In view of the fact that the answer given by the expert witness was substantially the same as testimony previously received from the same witness without any objection being made, and in the further view that the objection made was because “it was not shown that the regulations were in effect when the building was constructed,” we do not think there was any prejudice in allowing the answer nor in making the statement which His Honor made in connection therewith. The issue was not as to whether there was negligence in the original construction of the door, for admittedly the defendants did not construct it. The issue was whether the defendants should have realized that a dangerous type glass should have been replaced with a safety type when small children were constantly at play around the door.

There is a greater duty imposed by law upon an occupier of land to use care for the safety of his guests, when those guests are children of tender years, than there is when they are mature people. Even with adult guests the occupier has a duty to exercise reasonable care to discover dangerous conditions. The Restatement of Torts 2d, § 343, sets out the requirements as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger. Under Comment e it is said:
In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance. One who enters a private residence even for purposes connected with the owner’s business, is entitled to expect only such preparations as a reasonably prudent householder makes for the reception of such visitors. On the other hand, one entering a store, theatre, office building, or hotel, is entitled to expect that his host will make far greater preparations to secure the safety of his patrons than a householder will make for his social or even his business visitors.

*397Also under Comment / the statement is made:

A possessor who holds his land open to others must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances provided therein, which is not required of his patrons. Thus, the keeper of a hoarding-house is negligent in providing a gas stove to he used in an unventilated bathroom, although the hoarder who is made ill by the fumes uses the bathroom with knowledge of all the circumstances, except the risk of so doing. This is true because the boardinghouse keeper, even though a man of the same class as his boarders, is required to have a superior knowledge of the dangers incident to the facilities which he furnishes to them.

Negligence is the breach of a duty to use due care under the circumstances of the situation. When children are involved, the duty to look out for their safety is increased, and failure to make a given discovery might be negligence when children are involved and not negligence if adults only are affected. It is a relative thing and generally must be left to the jury to say if under all the circumstances the conduct of the actor measures up to the standards of a reasonably prudent man.

Here the defendants sold candy inside the building and had a swimming pool just a few feet outside the door. Children aged four to fifteen were encouraged to swim and play in the water and to buy candy in the store.

All the world must know the tendency of children to play rough and not to have the judgment and maturity of adults.

The community at large had, prior to the accident in question, become aware of the dangers connected with ordinary glass in sliding doors and the need for horizontal metal bars or safety glass even for adults. The serious cuts sustained by the plaintiff are mute evidence of the dangers inherent in the type of door used,- and we think it was a jury question as to. whether the dangers should have been recognized and corrected. The claim of error in allowing the expert witness to express an opinion that the glass door was dangerous could not be prejudicial when the jury saw the result of a collision between the minor plaintiff and that very door. There could be no question-but that the door was dangerous and a menace to those children who were playing near it.

The defendants argue that the,plaintiff must have been running when he. hit the door. The plaintiff denied that he was and said that he stopped within four or five feet of the door. An employee of defendants stated that the plaintiff stopped within three or four feet of the door, and the jury was well within its rights in finding that the plaintiff could not have stopped so soon had he been running.

*398We believe that the defendants have had their day in court, and an impartial jury has said that their conduct in leaving a dangerous type of glass in a partly closed door was an act which did not measure up to the standards of due care under the circumstances in the case.

We, therefore, affirm the judgment. The plaintiff may have costs.

CROCKETT, C. J., and TUCKETT, J., concur.