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Albright v. Parr

OPINION FILED JULY 31, 1984.

MICHAEL K. ALBRIGHT, PLAINTIFF-APPELLANT,

v.

RAY PARR ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Johnson County; the Hon. James Williamson, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Michael Albright, plaintiff, appeals from summary judgments entered in the circuit court of Johnson County in favor of Ray Parr, Shell Oil Company, and Smoot Oil Company, Inc., on plaintiff's third amended complaint. Plaintiff does not appeal from the entry of summary judgment in favor of an additional defendant, Chuck Keller, d/b/a Keller Oil. For the reasons which follow, we affirm in part, reverse in part and remand.

Plaintiff's third amended complaint alleged that defendant Smoot Oil Company was the owner of certain land in Johnson County, that defendant Parr leased this land and operated a service station upon it, and that Shell Oil Company distributed its products through Smoot and Parr. It was further alleged that on July 17, 1980, plaintiff, while rising from a chair in the waiting area of the station, fell through a plate glass window and was injured, and that these injuries were caused by negligence on the part of the defendants, in that they (1) failed to provide a safe waiting area for customers; (2) placed the chair on which plaintiff sat in an area not large enough to hold the chair; (3) failed to warn plaintiff of the unsafe condition of the waiting area; (4) used a glass window on the premises which was unsafe in that it was constructed of single plate glass capable of shattering into fragments, and of insufficient strength for the purposes for which it was installed; (5) used a plate glass window without subjecting it to polariscopic examination in attempt to ascertain defects in the glass; (6) permitted chairs to be set against the plate glass window; (7) permitted use of chairs which were not safely constructed; and (8) failed to protect plaintiff from assault by a patron known to be "rowdy and making threatening gestures toward others."

During the discovery deposition of plaintiff, plaintiff testified, in essence, that Allen James, apparently not an employee of any of the defendants, caused the fall in question by pushing plaintiff:

"Q. You didn't feel any contact between you and Allen James?

A. He could have, yes.

Q. Where would the contact have been?

A. It would be right in here.

Q. You are pointing to the left side of your chest?

A. Yes.

Q. About where your pocket is right now, right?

A. Yes.

Q. Could you tell whether he had an open hand or a closed hand?

A. I would say it would have probably been open.

Q. He had never struck you before with a closed fist had he?

A. No sir.

Q. So as best you could tell it was an ...


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