Opinion
41723.
ARGUED JANUARY 11, 1966.
DECIDED JANUARY 14, 1966. REHEARING DENIED FEBRUARY 2, 1966.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Saul Blau, for appellant. Long, Weinberg Ansley, Ben Weinberg, Gregg Loomis, for appellee.
A petition alleging that the owner of a motion picture theatre permitted a patron to sit on the only steps leading to and from the balcony, with his feet and legs sprawled over the steps, and that when plaintiff sought to leave the balcony she was tripped by his feet or legs, fell down the steps and was injured, presents a jury question as to whether the owner was negligent.
ARGUED JANUARY 11, 1966 — DECIDED JANUARY 14, 1966 — REHEARING DENIED FEBRUARY 2, 1966 — CERT. APPLIED FOR.
Appellant, a paid patron of a motion picture theatre of appellee, entered about 4 p. m. and went to the balcony where she watched the show for approximately two hours. When the show was over she proceeded to leave by the only steps leading to and from the balcony and tripped over the legs of a man who she alleges had been seated on the ninth step with his legs sprawled across the steps since about 4:30 p. m. She alleges that the defendant (appellee) had employed ushers equipped with flashlights, that it was their duty to keep the steps and aisles unobstructed for the free passage of patrons, that by reason of the fact that the man had been sitting on the steps for nearly two hours the defendant knew or should have known of his presence blocking free passage and that its ushers should have taken proper steps to remove him but failed to do so. She suffered injuries in her fall down the steps.
From the sustaining of a general demurrer she appeals.
The owner of a motion picture theatre owes ordinary care to one who purchases a ticket and enters for the purpose of witnessing a show. United Theatre Enterprises v. Carpenter, 68 Ga. App. 438 ( 23 S.E.2d 189). We have found no instance when the factual situation here presented has been passed upon by the appellate courts of this State. It has been held to be a jury question as to whether permitting a platform weighing scale in the lobby, over which a patron tripped and fell, was negligence ( Atlanta Enterprises v. Douglass, 93 Ga. App. 237 ( 91 S.E.2d 296)), though the presence of a popcorn box in the aisle is not. Rogers v. Atlanta Enterprises, 89 Ga. App. 903 ( 81 S.E.2d 721).
Appellee urges since this was not a static situation, but one in which changes might occur momentarily in the moving or shifting of his feet and legs by the man sitting on the steps, those cases have no application. That may well be a valid position as to tripping over feet or legs of other patrons who are seated in places provided for them. See Paramount Richards Theatres v. Johnson, 199 Miss. 645 ( 25 So.2d 129). It was pointed out by the Supreme Court of Arizona in Lyric Amusement Co. v. Jeffries, 58 Ariz. 381 ( 120 P.2d 417) that where a patron in his seat deliberately extends his foot an abnormal length for the purpose of tripping another who, in leaving her seat for the aisle, must pass the patron, no actionable negligence appears against the owner of the theatre. However, it is alleged here that the offending patron was not in a seat provided for him, but on the steps which constituted the only means of getting down from the balcony. There is a duty on the part of the owner to keep the aisles, steps and passageways reasonably free for passage by patrons, and if one sits upon the steps to the balcony instead of proceeding to a seat, he should not be permitted to remain.
Constructive knowledge of the situation is all that is charged against the defendant, but it is alleged in that connection that the man had taken the position on the balcony steps and remained there for nearly two hours before appellant proceeded to leave and that there were ushers whose duty it was to keep the aisles and steps free for passage. This sufficiently meets the test of Setzers Super Stores of Ga. v. Higgins, 104 Ga. App. 116 (1) ( 121 S.E.2d 305).
Under the facts pleaded the owner should have anticipated that the man sitting on the steps might trip patrons seeking to leave the balcony — whether purposely or accidentally. It cannot be said as a matter of law that the owner was free of negligence in permitting him to remain in that position. That is a jury question.
Judgment reversed. Bell, P. J., and Jordan, J., concur.