Opinion
Decided December 3, 1928.
Negligence — Bathing beach owner must exercise ordinary care for patron's safety — Negligence in failing to remove broken bottles from water, question for jury — Invitee may recover damages where proprietor had constructive knowledge thereof.
1. Where one maintains bathing beach in his own interest, and in furtherance of such interest invites the public thereto, duty rests on him to exercise ordinary care in maintenance of beach for safety of his patrons; same rule applying to bathing beaches as to other places of amusement or recreation to which the public is invited.
2. Negligence of proprietors of bathing beach, to which public is invited, in failing to inspect beach under water and in failing to remove dangerous obstructions thereunder, or warn public of such obstructions, held question for jury as to injuries sustained by invitee, cutting his foot on a broken bottle lying in the shallow water, where it appeared that other broken bottles had been found on beach, and that use of rake after accident almost immediately brought to light broken bottle from place on beach where plaintiff was injured.
3. Actual knowledge on part of proprietors of bathing beach of existence of broken bottles in the submerged portion of the beach is not necessary to permit recovery by invitee, provided proprietors had constructive knowledge thereof.
ERROR: Court of Appeals for Lucas county.
Mr. Lee H. Schminck, for plaintiff in error.
Messrs. Marshall, Melhorn, Marlar Martin, for defendants in error.
Plaintiff in error, Raymond C. Maehlman, as plaintiff below, brought an action in the court of common pleas of Lucas county against the Reuben Realty Company, and the Reno Beach Amusement Company, as defendants, to recover for personal injuries which he sustained, while going in bathing at Reno-by-the-Lake, by having his left foot cut as a result of stepping upon a broken bottle lying under the water upon the beach. The court below directed a verdict in favor of the defendants, and this proceeding in error is brought to reverse the judgment entered thereon.
The plaintiff below offered evidence tending to show the following facts: Plaintiff went to Reno-by-the-Lake to bathe in response to an invitation extended through newspaper advertisements which stated that the sand at that place was as soft as silk and the beach so sloping that kiddies were absolutely safe at play. Plaintiff, after obtaining a permit to use the bathhouse, entered the water with others, and when about ten or twelve feet from the water's edge, and in water of a depth of about a foot and a half, stepped upon a broken bottle, which cut his foot. The water at the time was not sufficiently clear for plaintiff to see the broken bottle. The defendants, in exercising control over this beach, employed, or caused to be employed, men who raked up and cleaned up the beach, and, recently, before the happening in question, they had found broken bottles upon the beach near the point where the injuries were sustained and had raked them up, but did not rake the beach under the water, or search in the water for broken bottles.
It appears that the defendants were promoting an allotment at Reno-by-the-Lake, and were operating the bathhouse and advertising bathing facilities to promote their own financial interests in connection with such allotment.
Where one maintains a bathing beach in his own interest, and in furtherance of such interest invites the public thereto, the duty rests on him in maintaining such bathing beach to exercise ordinary care for the safety of his patrons. In this respect a bathing beach is like any other place of amusement or recreation to which the public is invited. Higgins v. Franklin County Agricultural Society, 100 Me. 565, 62 A. 708, 3 L.R.A. (N.S.), 1132; Decatur Amusement Park Co. v. Porter, Admr., 137 Ill. App. 448, 452; Greene v. Seattle Athletic Club, 60 Wn. 300, 111 P. 157, 32 L.R.A. (N.S.), 713; Turlington v. Tampa Electric Co., 62 Fla. 398, 56 So. 696, 38 L.R.A. (N.S.), 72, Ann. Cas., 1913D, 1213; Wodnik v. Luna Park Amusement Co., 69 Wn. 638, 125 P. 941, 42 L.R.A. (N.S.), 1070, and case note at page 1073; Brotherton, Admx., v. Manhattan Beach Improvement Co., 48 Neb. 563, 67 N.W. 479, 33 L.R.A., 598, 58 Am. St. Rep., 709; McKinney v. Adams, 68 Fla. 208, 66 So. 988, L.R.A., 1915D, 442, Ann. Cas., 1917B, 326, and case note at page 333; Larkin v. Saltair Beach Co., 30 Utah 86, 100, 83 P. 686 [3 L.R.A. (N.S.), 982, 116 Am. St. Rep., 818, 8 Ann. Cas., 977]; Fry v. Omaha Council Bluffs St. Ry. Co., 106 Neb. 333, 183 N.W. 567, 22 A.L.R., 607, 610; Durning v. Hyman, 286 Pa., 376, 133 A. 568, 53 A.L.R., 851, 856; Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86.
The law is well stated in 45 Corpus Juris, page 858, Section 281, from which we quote: "One maintaining a public resort is required to keep it in a reasonably safe condition for those frequenting it, and he cannot escape liability merely by showing that he did nothing to render the premises unsafe. Upon this principle liability exists for injury caused by falling structures, the negligent management of fireworks, failure to remove obstructions in bathing places, or failure to protect visitors from intoxicated persons. Of course, where the facts do not disclose any negligence on the part of the keeper of a public resort, he cannot be held liable for death or injury on the premises claimed to have resulted from his negligence; and a person who is not a keeper of a public resort is not subject to the duty devolving upon such a keeper."
This rule has been applied in cases in which a bather received injury from an injurious substance under the water. Boyce v. Union Pac. Ry. Co., 8 Utah 353, 31 P. 450, 18 L.R.A., 509; Wickersham v. Du Bois, 34 App. D.C., 146; Bass, Receiver, v. Reitdorf, 25 Ind. App. 650, 58 N.E. 95.
The negligence charged against the defendants in the amended petition was in failing to inspect the beach under the water, failing to remove hidden and dangerous obstructions under the water, and in failing to warn plaintiff of the existence of said obstructions. The finding of broken bottles upon the beach adjacent to the place where plaintiff sustained his injury was some evidence tending to show that defendants might reasonably have anticipated that glass may have gotten into the water, and the fact that the use of a rake after the accident almost immediately brought to light a broken bottle, which, according to some of the testimony, was drawn out from the place where plaintiff sustained his injury, was evidence tending to show that a reasonable raking of the beach under the water at that point would have revealed the obstruction. Actual knowledge on the part of the defendants of the dangerous condition would not be necessary. Constructive knowledge would be sufficient. The presence of broken bottles upon the beach some time before, and the probability that some such bottles may have gotten into the water, and the other surrounding circumstances, constituted some evidence tending to show that the defendants should have known of the hidden danger in the exercise of ordinary care.
As there was some evidence tending to show that the defendants were guilty of negligence, and that such negligence was the proximate cause of plaintiff's injury, the court erred to the prejudice of the plaintiff in error in directing a verdict. The judgment will therefore be reversed, and the cause remanded for a new trial.
Judgment reversed and cause remanded.
RICHARDS and LLOYD, JJ., concur.