Waugh v. Duke Corporation, 248 F. Supp. 626 (M.D.N.C. 1966)

US District Court for the Middle District of North Carolina - 248 F. Supp. 626 (M.D.N.C. 1966)
January 10, 1966

248 F. Supp. 626 (1966)

Emily S. WAUGH, b/n/f Samuel F. Gantt, Plaintiff,
The DUKE CORPORATION and Duke Motor Lodge, Inc., Defendants.

No. C-125-D-64.

United States District Court M. D. North Carolina, Durham Division.

January 10, 1966.

E. C. Brooks, Jr., and E. C. Brooks, III, of Brooks & Brooks, Durham, N. C., for plaintiff.

Clem B. Holding and W. C. Harris, Jr., of Holding, Harris, Poe & Cheshire, Raleigh, N. C., for defendants.

EUGENE A. GORDON, District Judge.

This action was brought by Emily S. Waugh, B/N/F Samuel F. Gantt, to recover damages for personal injuries which she received when she walked into a glass panel of a motel owned and operated by The Duke Corporation.

A jury trial was waived and the matter was heard by the Court sitting without a jury. The defendant moved for dismissal of the plaintiff's action and for judgment on the pleadings at the close of the plaintiff's evidence. The Court reserved its decision on the motion until the completion of all the evidence at which time the defendant renewed its motion. The Court further reserved its decision on the motion pending receipt of proposed findings of fact and conclusions *627 of law from counsel for the respective parties.

Having now carefully considered all of counsels' proposals, arguments and contentions, as well as the testimony, pleadings, stipulations, briefs and exhibits submitted, and the reasonable inferences to be drawn therefrom, the Court pursuant to Rule 52 of the Federal Rules of Civil Procedure makes its Findings of Fact and Conclusions of Law.

Findings of Fact

1. At the time of the institution of this action, the injured party, Emily Waugh, was a citizen and resident of West Virginia. The defendant, The Duke Corporation, is a corporation organized and existing under and by virtue of the laws of the State of North Carolina and maintains its registered office in Durham, North Carolina. The action is for a sum in excess of $10,000.00.

2. Duke Motor Lodge, Inc., was an original party defendant but it was stipulated that the Duke Motor Lodge, Inc., was not a proper defendant and an order was issued dismissing said defendant as a party.

3. Samuel F. Gantt, a citizen and resident of the city and county of Durham, North Carolina, located within the Middle District of North Carolina, was appointed next friend of Emily S. Waugh and authorized to institute this action in her behalf.

4. The defendant, The Duke Corporation, acquired ownership of the Duke Motor Lodge on April 28, 1960, and disposed of ownership thereof on December 31, 1963. The defendant was, therefore, the owner and operator of the motel on September 27, 1963, the date of the injury complained of in the complaint.

5. Duke Motor Lodge is located in Durham, North Carolina. Room 58 of the Duke Motor Lodge is one of a series of rooms of cinder block construction arranged in the shape of a "U" and partially enclosing a courtyard. Dual entranceways give access to room 58. One is in the west wall of the room and gives access to the motel parking area, hereinafter referred to as the "west door." The other is in the east wall of the room and opens into the interior courtyard, hereinafter referred to as the "east door." The inner courtyard consists of an expanse of grass, bushes, shrubs and contains a swimming pool.

6. The interior walls of room 58, the north, south and west walls, are of exposed cinder block and are painted a light cream or off-white color. The remaining wall, the east wall, which faces the courtyard, consists of four divisions or panels. One panel, that adjacent to the south wall contains a wooden door about 2½ feet wide and painted a color identical to that of the wall. The door is set in a framework which is painted or stained a darker color than that of the door and which matches the exposed beams of the ceiling. The framework, above described, extends across the remainder of the east wall and divides the balance of the space into three sections.

7. The three remaining panels or sections consisted of large sections of plate glass manufactured and installed by Pittsburg Plate Glass Company. The panels of glass were 38 7/8 inches wide, 77½ inches long and 7/32 of an inch in thickness. These glass panels were not fitted flush with the floor and ceiling but were set in wooden strips which matched the framework. These wooden strips were approximately two inches in height. On September 27, 1963, these panels were clean, clear and highly polished. The panels of plate glass bore no decals or other markings and were not protected by rails, guards or other devices. The east wall was equipped with draperies which could cover the full extent thereof but on September 27, 1963, they were not drawn. The aforementioned day was bright and sunny and the interior of room 58 was somewhat dimmer than the lighting in the courtyard. Through the glass panels, the courtyard containing grass and shrubs was visible.

8. Room 58 was, at the time of the accident, occupied by Mrs. Eugene A. *628 Stowers, a registered guest of the hotel and the grandmother of Emily Waugh. At the time of the accident, Emily Waugh was a child of the age of six years and some ten months. She arrived at the Duke Motor Lodge in the late afternoon of September 27, 1963, with her parents, Mr. and Mrs. Harry M. Waugh, and, after registering as guests of the motel, but before going to their assigned room, No. 55, Emily Waugh and her parents visited Mrs. Stowers' room, No. 58.

9. Emily Waugh entered room 58 through the west door followed by her brother and then her father. She thereupon greeted her grandmother. Upon being released from her grandmother's embraces, she decided to go into the courtyard. Believing the glass panel adjacent to the door to be an open space giving direct access to the courtyard, she walked into it. At the time she left her grandmother's arms, she was some five or six feet from the glass panel. There were no chairs or other obstructions in front of the panel with which the plaintiff came into contact.

10. At the time of the accident, Emily Waugh weighed between 41 and 44 pounds and was between 48 and 49 inches in height. When she walked into the panel, the glass broke leaving a jagged hole approximately the size of a football at about the level of her head. The broken glass then fell into the room and consisted of various sized fragments some as large as a man's hand, some smaller and all sharp edged.

11. Emily Waugh was cut about the face, arms, left leg and knee. The cut on her face was in the area of the lateral aspect of her right forehead, descending obliquely and vertically past the outer end of her right eyebrow and on down to the area of the cheekbone. The cut extended through the full thickness of the forehead skin and the skin of the upper face over the cheekbone but was not down to the bone proper. No severed nerves were detected. She was given out-patient treatment for her injuries at the Duke Hospital.

12. Approximately nine months after the accident, Emily Waugh was again admitted to the Duke Hospital for the purpose of surgical treatment of scars resulting from the accident. A surgeon undertook a derma abrasion in the cheekbone area and made traverse eliptical incisions of the scar in the right lateral forehead area in order to camouflage the scar resulting from the accident and to disguise it by employing the natural configurations of the face (i. e., the normal folds of the forehead skin).

13. There has remained after the above-described operations a thin scar running from the right eye to the top of the forehead which does not tan as does the adjoining skin. This scar, however, is barely visible and then only in a good light and closer than three feet. As the child grows, the scar will diminish in size.

14. Following the injuries complained of, Emily Waugh has exhibited a high degree of nervousness and the scar has continued to itch. Also following the injuries, there has been an increase in Emily Waugh's asthma attacks, increasing attacks of a rash (both of which had existed prior to the injury) and some loss of weight. No causative relationship between the injuries and the increasing difficulty with the asthma and the rash and the loss of weight was established.

15. Previous to the accident, Emily Waugh had twice been a guest in motels containing glass panels somewhat similar to that of the Duke Motor Lodge, but in one of such motels, the drapes had remained drawn throughout the entirety of her stay therein, thereby concealing such panels.

16. The glass in the panels in room 58 was known in the trade as heavy sheet glass or crystal plate glass and was properly installed by the Pittsburg Plate Glass Company and was of the type and kind employed in the vast majority of motels utilizing glass panels as part of their construction.

17. Other forms of glass panels are available, such as tempered glass and *629 laminated glass which would not shatter as easily as the crystal plate glass utilized in the Duke Motor Lodge. Also, crystal plate glass of increased thickness would be less likely to shatter than that of the thickness utilized in the construction of the Duke Motor Lodge. The defendant was not negligent in utilizing glass of the type employed in the Duke Motor Lodge.

18. On three occasions, prior to the injury of Emily Waugh, guests of the motel had collided with glass panels in various parts of the motel.

19. The defendant was negligent in failing to take action to warn the plaintiff of the existence of the glass panels or failing to place some warning device on or about the panels so as to place a small child on notice of their existence and such negligence was the proximate cause of the injuries to Emily Waugh.

20. Emily Waugh was not contributorily negligent.


The Court finds as a fact that the defendant, The Duke Corporation, was negligent in that it failed to take proper measures to warn Emily Waugh of the existence of the floor to ceiling glass panels which constituted the major portion of the east wall of room 58 of the defendants' motel and in that it failed to construct guards around such or place anything around or on the glass to give notice that a panel existed and failed to give verbal warning to Emily Waugh and such negligence was the proximate cause of the child's injury.

There is no North Carolina case on the question of the liability of a proprietor of a business establishment to a business invitee for injuries sustained by such invitee colliding, by his own motion, with glass panels or doors in the business establishment.

Chapter 72, § 1 of the General Statutes of North Carolina relied upon by the plaintiff and which states, in part, that an innkeeper is obligated to provide "suitable rooms" for strangers and travelers which he accepts as guests provides little guidance for the Court for even if Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425, 12 A.L.R. 1297 (1920); Murray v. Bensen Aircraft Corp., 259 N.C. 638, 131 S.E.2d 367 (1963), and others wherein it has been held that a violation of a statute enacted for the safety of the public constitutes negligence per se are given their broadest possible interpretation, Chapter 72, § 1 of the General Statutes of North Carolina itself does no more than state the common law duty of an innkeeper.

The proprietor of an inn or motel, although not an insurer of the safety of his guests, even his infant guests, is under an affirmative duty to protect his guests from an unreasonable risk of physical harm. Patrick v. Springs, 154 N.C. 270, 70 S.E. 395 (1911); 29 Am. Jur., "Innkeepers," § 57; A.L.I. Restatement of Torts, § 314A.

The duty of an innkeeper to a guest who is an infant is a greater duty than that owing to his adult guests and he is bound to consider whether his premises, although safe enough for an adult, present any reasonably avoidable dangers to his infant guest. 29 Am. Jur., "Innkeepers," § 58.

There are no North Carolina cases which consider this special relationship which an innkeeper bears tow