Opinion
No. 7612SC275
Filed 6 October 1976
1. Negligence 53 — swimming pool — duty of owner to patrons The owner or proprietor of a bathing or swimming resort or pool as a place of public amusement is not an insurer of the safety of his patrons, but he must exercise ordinary and reasonable care and prudence to have and maintain his place and all appliances intended for the use of patrons in a reasonably safe condition for all ordinary, customary, and reasonable uses to which they may be put by patrons, and to use ordinary and reasonable care for the safety of his patrons and he may be liable for injury to a patron from breach of his duty.
2. Negligence 53 — swimming pool — dangerous activity of invitees — duty of owner to other patrons Where a dangerous condition or activity occurring in a bathing or swimming resort or pool arises from the act of third persons, whether themselves invitees or not, the owner of the resort or pool is not liable for injury resulting unless he knew of its existence or it had existed long enough for him to have discovered it by the exercise of due diligence and to have removed or warned against it.
3. Negligence 57 — swimming pool — dangerous horseplay of patrons — duty of owner to other patrons In an action to recover against a swimming facility proprietor for injuries sustained by plaintiff when a third person, who was engaging in horseplay in the lake, fell on him, the trial court properly granted defendant's motion for a directed verdict, since the evidence indicated that the horseplay had been going on for 30-45 minutes at some distance from plaintiff, plaintiff considered the horseplay no "problem" to him, plaintiff and the people engaged in the horseplay then moved to different locations in the lake so that the activity became dangerous to plaintiff, and the danger did not exist for a sufficient period of time to put defendant on notice.
APPEAL by plaintiff from Hall, Judge. Judgment entered 20 November 1975 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 18 June 1976.
Smith, Geimer Glusman, P.A., by Kenneth Glusman, for plaintiff appellant.
Clark, Clark, Shaw Clark, by Heman R. Clark, for defendant appellee.
Judge MARTIN dissenting.
In his complaint plaintiff alleges that defendant operated Permastone Lake; that plaintiff went swimming in the lake on Labor Day in 1973; that other swimmers, whose names plaintiff does not know, were engaged in dangerous horseplay; that one of those swimmers fell on plaintiff, causing injuries to his neck and head; and that the horseplay had been going on long enough for defendant's lifeguards to have seen and stopped it. In its answer defendant denied negligence and pleaded contributory negligence.
After plaintiff presented his evidence at trial, defendant's motion for a directed verdict was allowed and from judgment dismissing the action, plaintiff appealed.
The sole question presented by this appeal is whether the trial court erred in granting defendant's motion for directed verdict. We hold that the court did not err.
The degree of care that the proprietor of a swimming facility owes his customers is well summarized in Wilkins v. Warren, 250 N.C. 217, 219, 108 S.E.2d 230, 232 (1959), where our Supreme Court said:
". . . the general rule is stated in these words: `The owner or proprietor of a bathing or swimming resort or pool as a place of public amusement is not an insurer of the safety of his patrons, but he must exercise ordinary and reasonable care and prudence to have and maintain his place and all appliances intended for the use of patrons in a reasonably safe condition for all ordinary, customary, and reasonable uses to which they may be put by patrons, and to use ordinary and reasonable care for the safety of his patrons, and he may be liable for injury to a patron from breach of his duty.' (Citations omitted.)"
While the proprietors of bathing or swimming resorts or pools owe to their patrons a duty to exercise due care, not only to provide a safe and proper place but to supervise the premises in order to protect patrons from wanton and unprovoked injuries by other persons there, our Supreme Court has said:
"`[I]t is only when the dangerous condition or instrumentality is known to the occupant [owner], or in the exercise of due care should have been known to him . . . that a recovery may be permitted.' (Citation omitted.) In the place of amusement or exhibition, just as in the store, when the dangerous condition or activity is created or engaged in by the owner or his employee, the owner is charged with immediate knowledge of its existence, but where it arises from the act of third persons, whether themselves invitees or not, the owner is not liable for injury resulting unless he knew of its existence or it had existed long enough for him to have discovered it by the exercise of due diligence and to have removed or warned against it. (Citations omitted.)" Aaser v. City of Charlotte, 265 N.C. 494, 499, 144 S.E.2d 610, 615 (1965). (Emphasis ours.)
We now summarize the stipulations and evidence presented at trial. It was stipulated that the defendant operated a recreational facility, including Permastone Lake; that the lake was open to the public for swimming upon payment of a fee; and that defendant employed lifeguards at the lake.
Plaintiff testified in pertinent part:
On Labor Day 1973 he, his three children and two other families went to Permastone Lake, a body of water containing one or two acres and located west of Hope Hills, N.C. At that time he was 39 years old and a sergeant first-class in the U.S. Army in which he had served for sixteen years. Plaintiff and his group paid the required admission fees and thereafter he and the seven or eight children in the party went into the water.
The lake was moderately crowded and he and the children spent approximately an hour in the area of a sliding board. While the children slid down the board he stood in water up to his chest and would catch them. Approximately 30 or 45 minutes after he entered the water, he heard a lot of shouting nearby and observed several young men, some 20 or 30 feet away, getting on each other's shoulders and jumping into the water. At that distance "they weren't causing me any problems." About 30 to 45 minutes later, feeling that he and the children had been in the water long enough, he sent the children to a dock or pier some 50 or 60 feet away and began swimming to the dock himself. Soon thereafter one of the young men (who was jumping into the water from his father's shoulders) fell on top of him, pushed him to the bottom of the lake and caused the injuries complained of.
On cross-examination plaintiff stated: ". . . I did not see any danger to myself or my children or the people around the slide while I was there with the children. The last time I saw the men they were far enough away that I was not concerned about them. . . ."
Plaintiff's witness, Mrs. Grombkowski, testified in pertinent part: She, her husband and children, went with plaintiff to Permastone Lake on the day in question. Her children, along with plaintiff's children, were playing on the sliding board and plaintiff was in the water catching them. Not long after they entered the water, she saw the young men engaged in horseplay nearby. They gradually moved closer to the sliding board where plaintiff was. After plaintiff left the sliding board and got halfway to the pier, she saw one of the young men jump from the shoulders of his father and land on plaintiff's head. She estimated that the sliding board was 50 or 60 feet from the end of the dock or pier. There were two lifeguards, approximately 16 or 17 years old, on duty. Part of the time they were watching the people in the water but at other times they were talking to girls. They did not go to plaintiff when he was hurt.
On cross-examination Mrs. Grombkowski stated: "I did not keep my eyes on them the whole time. I don't really know whether they gradually moved up or moved up suddenly. . . . As he was swimming towards us, I saw this danger out of the corner of my eye and hollered to him. He was swimming. . . ."
Plaintiff's witness Cobb, a Y.M.C.A. physical director, testified that the American Red Cross and the Y.M.C.A. had promulgated certain standards of aquatic safety as guidelines for people operating swimming facilities; that these standards were accepted in Cumberland County; and that it was not acceptable aquatic practice to allow young men to get on another's shoulders and do "backflips" into the water.
Plaintiff argues that in this case it was incumbent on him to show (1) that he was an invitee, (2) some activity dangerous to him was occurring, (3) the dangerous activity had been going on for a sufficient period of time for defendant, in the exercise of reasonable care, to have taken notice of it, and (4) defendant did not use reasonable means to stop the dangerous activity. We agree with the argument but do not feel that the evidence established the points suggested.
It goes without saying that the activity engaged in by the ones who caused plaintiff's injury was dangerous to him only if it occurred in close proximity to him. He testified that for some 30 to 45 minutes the young men engaged in the activity were 20 to 30 feet from him and caused him "no problem." The "problem" arose when plaintiff left the sliding board and was walking or swimming to the dock approximately 50 or 60 feet away. At that time the ones who caused his injury were changing their location — either gradually or suddenly — according to Mrs. Grombkowski. When plaintiff moved his position some 25 or 30 feet — one-half the distance from the sliding board to the dock — and the ones who caused his injury changed theirs the hazardous situation was created.
The evidence failed to show that the hazardous situation thereby created existed for a sufficient period of time for defendant's lifeguards, in the exercise of reasonable care, to have taken notice of the situation and to have taken means necessary to alleviate it.
In Aaser v. City of Charlotte, supra, plaintiff was a paying spectator at an ice hockey game in the Charlotte Coliseum. She was injured when her ankle was hit by a puck as she was walking along a corridor. Her evidence was that immediately after the injury she saw boys with hockey sticks playing in the corridor and the director of the hockey club told her the boys had been playing in the corridor before that time with hockey pucks and sticks. The Supreme Court reversed a jury verdict for plaintiff, holding that a proprietor may be liable for injuries resulting from horseplay or boisterousness of others only if the defendant has had sufficient notice to enable him to stop the activity. We quote from the opinion:
"Since what constitutes reasonable care varies with the circumstances, the vigilance required of the owner of the arena in discovering a peril to the invitee and the precautions which he must take to guard against injury therefrom will vary with the nature of the exhibition, the portion of the building involved, the probability of injury and the degree of injury reasonably foreseeable. The law does not require the owner to take steps for the safety of his invitees such as will unreasonably impair the attractiveness of his establishment for its customary patrons. . . ." 265 N.C. at 499, 144 S.E.2d at 614.
Plaintiff appears to contend that defendant was put on notice with respect to a "dangerous activity" when the horseplay first began. We do not find this contention persuasive, particularly in view of plaintiff's testimony that those engaged in the activity were 20 or 30 feet away from him at the time and were no "problem" to him. The activity became dangerous to plaintiff when he moved some 25 or 30 feet and those engaged in the activity moved an unstated distance. We do not think the activity, after it became dangerous to plaintiff, existed for a sufficient period of time to put defendant on notice.
For the reasons stated, the judgment appealed from is
Affirmed.
Judge HEDRICK concurs.
Judge MARTIN dissents.