This is an action in tort brought by the plaintiff to recover for personal injuries sustained when she tripped and fell while descending some steps in a dinner theatre owned and controlled by the defendant, Chateau de Ville Dinner Theatre, Inc. In her opening statement the plaintiff claimed that the defendant failed in its duty to exercise reasonable care to prevent injury to the theatre's patrons. After the plaintiff's opening, the defendant moved for a directed verdict. Relying on four of our cases,
The pertinent facts, as stated in the opening, are as follows. The plaintiff was a member of a group of forty-one elderly persons who reserved seats five weeks in advance for dinner and the performance on the evening of December 8, 1977. The entire group was seated on a tiered platform above the main floor, reached by ascending a series of carpeted steps. The plaintiff had never been to this dinner theatre before and was unfamiliar with her surroundings. After being seated at the beginning of the evening, the plaintiff remained at her table until the curtain calls began, when she decided to leave. She slipped on the steps leading to the main floor and broke her shoulder. As a result of the fall the plaintiff is now partially disabled and unable to perform many of her usual activities.
General lighting in the theatre is provided by a large, rheostat-controlled, fifteen foot chandelier which is turned off
On appeal the sole issue is whether the judge was correct in granting a directed verdict after the plaintiff's opening statement. Traditionally, a theatre owner owned a patron "the general duty to use ordinary care and diligence to put and keep his theatre in a reasonably safe condition, having regard to the construction of the place, character of the entertainment given and the customary conduct of persons attending." Rosston v. Sullivan, 278 Mass. 31, 34-35 (1931). See Silvia v. Woodhouse, 356 Mass. 119, 122 (1969); Byron v. Fresh Pond Open Air Theatre, 333 Mass. 121, 123 (1955). "While pictures were being shown the defendant violated no duty to the plaintiff if the condition of light was that ordinarily used in exhibiting moving pictures to enable the audience to get a reasonably clear view of the image thrown on the screen." Rosston v. Sullivan, supra at 35.
A landowner or occupier is now charged with a single duty to all lawful visitors, "to take those steps to prevent injury that are reasonable and appropriate under all the circumstances," Poirier v. Plymouth, 374 Mass. 206, 228 (1978), taking into account the likelihood of injury to others, the seriousness of the injury, and the proper allocation of the risks involved. In recent years, we have expanded the cases in which the reasonableness of a landowner's conduct may be considered by the fact finder. See, e.g., Young v. Garwacki, ante 162, 167-168 (1980); Soule v. Massachusetts Elec. Co., 378 Mass. 177, 182, 184 (1979); Poirier v. Plymouth, 374 Mass. 206, 221 (1978); King v. G & M Realty Corp., 373 Mass. 658 (1977); Mounsey v. Ellard, 363 Mass. 693, 707 (1973). We see no reason to make theatre owners a distinct class of landowners exempt from the general obligation to conduct their activities with reasonable care in all the circumstances.
Moreover, since our cases have been interpreted to mean that adherence to the trade standard for lighting theatres is conclusive proof of lack of negligence on the part of the theatre owner or manager, we no longer follow them. Bergstresser v. Minnesota Amusement Co., 68 S.D. 579, 589 (1942), and cases cited. Beck v. Stanley Co., 355 Pa. 608 (1947). See Constantine v. Proven Pictures of Boston, Inc., 338 Mass. 463 (1959); Mello v. New England Theatres, Inc., 315 Mass. 171 (1943); Tovey v. G.E. Lothrop Theatres Co., 288 Mass. 346 (1934).
Our decision to permit jury consideration whether the defendant exercised "reasonable care in all the circumstances" does not make the defendant an insurer. It simply prevents the custom or practice of the trade from being "the sole determinative factor in assessing the occupier's liability." Mounsey v. Ellard, supra at 708. See Back v. Wickes Corp., 375 Mass. 633, 641 (1978).
The theatre owner's need for sufficient darkness to screen a movie or provide artistic lighting effects for a live performance, as well as the need for sufficient light to enable patrons to find or leave their seats safely during a show, are
Since the defendant's duty is to act reasonably in the circumstances, we think the facts outlined in the plaintiff's opening are sufficient, if proved, to create a jury question as to the defendant's negligence.
For the foregoing reasons, the judgment of the Superior Court is reversed and a new trial is ordered.
Contributory negligence as a defense was abolished by St. 1969, c. 761, § 1, which amended G.L.c. 231, § 85, and was effective as to causes of action arising on and after January 1, 1971. Statute 1973, c. 1123, effective January 1, 1974, further amended the comparative negligence statute. There is no dispute about the fact that the plaintiff's case is within St. 1973, c. 1123. Therefore, the defendant's reliance on the Roy and Perry cases is misplaced.