## Facts

- A. C. Christensen and others were named as defendants, but with Winterowd’s consent two defendants were dismissed, leaving the Amusement Concession Company (operator of Lagoon Resort) as the sole defendant at trial.
- The defendant operated Lagoon Resort in Davis County, Utah, a public summer amusement property for which an admission fee was charged.
- The resort property included, in connection with its amusements, fenced baseball grounds with gates between the resort and the ball park and an elevated grandstand for spectators.
- On July 20, 1922, Winterowd attended Lagoon Resort with her husband, paid the resort admission fee, and went through an open gate onto the baseball grounds along with other patrons to watch a game played as part of the day’s entertainment.
- While walking along the grandstand floor/platform to obtain a seat, a 2×10 plank in the floor broke and gave way; her leg went through the floor and she sustained injuries.
- Witnesses described the plank and surrounding flooring as rotten, decomposed, dark, wet, and “soggy,” and said the wood appeared porous and defective.
- Winterowd sued for negligence, alleging the defendant failed to use reasonable care to inspect, discover, and repair the dangerous condition.
- At trial, after Winterowd presented her evidence, the district court granted the defendant’s motion for nonsuit and dismissed the action; Winterowd appealed.

## Issues

1. Was Winterowd, a paying Lagoon Resort patron who entered the baseball grounds and used the grandstand, an invitee of the defendant?
2. What duty of care did the defendant owe Winterowd regarding the condition of the grandstand floor?
3. Viewing the evidence most favorably to Winterowd, was there enough evidence of a dangerous defect and failure to discover and repair it to require submission to a jury, making nonsuit improper?

## Decision

- The Utah Supreme Court reversed the judgment of nonsuit and granted a new trial.
- Winterowd was an invitee when she entered the baseball grounds and used the grandstand as part of the resort’s paid amusements.
- As to invitees, the operator owed a duty of reasonable (ordinary) care to keep the premises reasonably safe and suitable so patrons would not be unreasonably exposed to danger.
- The evidence describing the plank as rotten and decomposed, together with the defendant’s operation and repeated use of the grandstand over time, permitted an inference that reasonable inspection and maintenance could have discovered and corrected the defect; negligence was therefore a jury question.

## Legal Principles

- A person who enters premises for a purpose connected with the possessor’s business, under an express or implied invitation (including paid admission to a place of public amusement), is an invitee.
- A possessor who invites the public onto premises for paid entertainment must use ordinary care to maintain the premises, including seating and walkways, in a reasonably safe condition for invitees.
- On a motion for nonsuit, the court must take the plaintiff’s evidence and reasonable inferences in the light most favorable to the plaintiff; if reasonable jurors could find negligence, the case must go to the jury.
- Where a structural defect is described as longstanding or observable on ordinary inspection, whether the possessor should have discovered and repaired it is ordinarily a fact question for the jury.

## Conclusion

Winterowd, having paid admission to Lagoon Resort and entered the ball park and grandstand as part of the resort’s entertainment, was an invitee owed ordinary care; because her evidence of a rotten plank supported a reasonable finding that the defendant could have found and fixed the defect through reasonable inspection, the trial court erred by granting a nonsuit, and the case was returned for a new trial.


Winterowd v. Christensen, 251 P. 360 (1926)