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Nordgren v. Strong

Supreme Court of Connecticut First Judicial District, Hartford, October Term, 1929
Mar 3, 1930
149 A. 201 (Conn. 1930)


One who visits a public amusement resort, the owner of which charges no admittance fee, but relies for his income on renting bathing suits, lockers and boats and selling food and the like, is not a gratuitous but a paying guest upon the invitation of the proprietor, whether he pays him anything or not, and the proprietor is in the same relation to him as the owner of a department store is to his patrons. One who invites others to come upon his place of business and use his facilities is under a duty to exercise reasonable care to have and keep the premises and the facilities reasonably safe for his invitees. What reasonable care would require of the proprietor of a public resort must depend upon the conditions and circumstances present, and this question is one of fact for the jury and not one of law. Where the plaintiff's intestate, C, visited the defendant's public amusement resort, but did not hire a bathing suit or bathing house, it was held (1) that she was a patron of the defendant and a charge to the jury that she was a mere licensee to whom the defendant did not owe the duty of providing suitable supervision and appliances, was erroneous; (2) that C, upon the facts found, was negligent in having attempted to swim to the float and that her administratrix could not recover for her death by drowning unless she established, under the last-clear-chance doctrine, that after C came into a position of danger the defendant might by the exercise of reasonable care have then rescued her or had provided adequate facilities through the use of which she would then have been rescued. The court further erred in failing to instruct the jury that the defendant owed the plaintiff's intestate, N, a patron at his resort, the duty of exercising reasonable care to rescue him from the danger he was in from attempting to rescue C from drowning, and if the danger and death of C was caused by the defendant's negligence, he would be responsible for the drowning of N, if that negligence was the proximate cause, that is the substantial factor, in causing N's death.

Argued October 3d 1929

Decided March 3d 1930.

ACTIONS to recover damages for the death of the plaintiffs' interstates, alleged to have been caused by the negligence of the defendant, brought to the Superior Court in Middlesex County and tried to the jury before Wolfe, J.; judgments for the defendant and appeal by the plaintiffs. Error and new trial ordered in each case.

The plaintiff offered evidence to prove: On August 12th, 1927, Ernest L. Nordgren, accompanied by three girls, Olva and Dorothy Dean and Olive G. Cullen, went to Strong's Pavilion on the shore of Lake Pocotopaug at East Hampton and on the way Lane joined them. They intended to remain there together at the Pavilion for a considerable part of the day and to there purchase food and other refreshment during their stay. The Pavilion was owned and conducted by the defendant. On its first floor is a roller skating rink and stands for the sale of food, liquids and other articles to the general public. On the first floor and adjoining the water are a number of benches placed there for the use of the public visiting the Pavilion. On the second floor are from one hundred and fifty to two hundred lockers for rental either to persons with their own bathing suits, or to those to whom the defendant rents them. During the summer months the Pavilion and the water adjoining it were patronized by a very considerable number of people. A pier extended from the shore front of the Pavilion into the lake. The defendant had placed a float or raft on the water about seventy-five feet from the end of the pier for the use of his patrons and it was commonly used by swimmers who availed themselves of the privileges offered by the defendant. On one side of the Pavilion were a number of boats for rental. These girls on several previous occasions had there hired a boat to row to a point in the lake where they were in the habit of swimming and spending the day or its greater part at or near the Pavilion and returning there in the boat to buy food. Neither Nordgren nor Miss Cullen had ever before been on the float, nor had Miss Cullen attempted to swim from the pier to the float. Nordgren was a fairly good swimmer, having on occasions swum a greater distance than from the pier to the float. The Dean girls were more experienced swimmers than Miss Cullen, who was only a fair swimmer and knew that the water at the pier and float was over her head. The girls came to the Pavilion with their bathing suits on. Nordgren brought his bathing suit with him, hired and paid for a locker and went upstairs and put on his suit. Lane bought a drink for himself and one of the Dean girls while Nordgren was dressing. When Nordgren came downstairs he and the three girls went in the water. Nordgren swam to the float followed by Dorothy and then by Olva Dean. Miss Cullen remained near the pier. She called to Olva Dean asking if she thought that she could make the float. Olva replied, "She thought she could," whereupon Miss Cullen started to swim to the float. When within a short distance of the float she called to Olva that she did not think she could make it and asked for help. There were, at the time, no ropes or other means of support in the water with which Miss Cullen might support herself. Olva looked to find a life preserver, or any object which she could throw to Miss Cullen but there was none. If there had been on the float any life preservers or life lines Olva could have easily thrown them to Miss Cullen, who was but a few feet from her, and thus assisted her to the float. Olva then called to Nordgren informing him of Miss Cullen's peril and he called to Lane, who was on shore, to get a boat. Nordgren started back to the rescue of Miss Cullen, who was keeping herself on top of the water by her own efforts but found it impossible to go toward the float or back to the pier; while she remained on top of the water she kept appealing for help until Nordgren reached her.

Following Nordgren's request Lane looked around the Pavilion for a rope, life preserver or other means of rescue but neither there nor on the pier were these to be found. When Nordgren reached Miss Cullen she seized him about the neck and both immediately went under the water together and did not come to the surface again. Meantime Lane ran to the point where the boats were located and attempted to take a boat but an agent of defendant refused to allow him to take a boat until he gave a deposit for it. While Lane was being so detained Dorothy Dean, who was on a float beyond that on which Olva was, continuously and in a very loud voice called for help, her cries being heard at least one hundred yards from the shore. When Lane finally got a boat and attempted to row it, he found it impossible to properly manage it because the oar locks were broken. This delayed him so that other persons in a boat starting to the rescue from a much greater distance reached the point where Nordgren and Miss Cullen had disappeared under the water before Lane did.

From the time Miss Cullen first called for help until after Nordgren and Miss Cullen had gone under the water no person came from the Pavilion to render assistance. Defendant had in and around the Pavilion and pier no person whose duty it was to watch people in the water and render, if needed, assistance to them. At this time the defendant had two boys in charge of the Pavilion, both of whom had their places of duty back of the soda water stand, which was between fifty and one hundred feet from the side of the Pavilion facing the lake.

When the bodies of Nordgren and Miss Cullen were brought to shore efforts were made to resuscitate them by artificial respiration but neither on the shore nor at the pavilion was there any pulmotor or other apparatus for use for this purpose and it was found impossible to resuscitate either. When the bodies were first brought to shore there were slight evidences of life in the body of Miss Cullen.

The defendant offered evidence to prove: In the summer of 1927, the bathing beach of the defendant was not largely frequented, on week days rarely more than twelve to fifteen persons bathing at one time and on Sundays and holidays not more than seventy-five. Defendant did not rent a bathing suit or a bath house to either Miss Cullen or Nordgren. Miss Cullen was not a good swimmer. While riding in the automobile to the lake she told Nordgren that she intended to swim to the float and asked him if he would rescue her if she got in difficulties. He told her he was not expert enough in swimming to be able to save her if she started to drown. When Miss Cullen got within twenty-five feet of the float she called out that she was too tired to make it and the Dean girls called for assistance. Lane hearing the cries of the Dean girls climbed into one of defendant's boats and after some delay due to his excitement started to row to the scene of the drowning but partly because of a defect in one of the oar locks and partly because of his inexperience in rowing he did not reach this point until after the bodies were raised to the surface. While these events were happening defendant was confined to his house by reason of an injury to his leg, but four of his employees were at this time engaged in various duties around the Pavilion, a boy in sweeping and three young men, Wright, Smith and Murphy, in cleaning up around the soda fountain and these three were experienced and skilled swimmers, while Smith had taken a course in life-saving. A fifth employee was in a sleeping room occupied by him on the second floor. All of these employees had no specific duties but were generally to do the work require in the operation of the Pavilion. As soon as they heard the cries of the dean girls Smith and wright left the Pavilion both Nordgren and Miss Cullen had gone under the water. When they reached the float Smith asked Olva where the bodies had gone down but in her excitement she could not indicate this. Smith began diving under the water to locate the bodies and Wright after going to the raft and removing his shoes also began diving. At about this time Murphy arrived in one of defendant's boats and shortly thereafter Farquhar swam out attired in a bathing suit. Smith discovered the bodies at a point equally distant from the two floats and somewhat in shore from them, and he, Wright and Farquhar dove down together and brought up the bodies. These were pulled in the boat and taken to the shore and efforts made to resuscitate them by means of artificial respiration, in accordance with the Schaefer method which is recommended by the American Red Cross as being more effective than the pulmotor. The efforts as resuscitation continued for more than an hour until the medical examiner concluded there was no hope. Between the time of their arrival at the lake and their death neither Nordgren nor Miss Cullen had patronized the defendant nor had any business dealings at the Pavilion on this day.

Defendant claimed that Miss Cullen's negligence, by reason of her inexperience as a swimmer, in attempting to swim to the float was the proximate cause of her death, and her act in seizing Nordgren by the neck and drawing him under the water, was also the proximate cause of his death.

Except as stated in defendant's claims of proof none of the other facts as claimed by plaintiffs were in controversy.

Louis Feinmark and Jesse Greenes, for the appellants (plaintiffs).

Ernest A. Inglis, for the appellee (defendant).

The defendant owned and operated a public amusement resort known as Strong's Pavilion on the shore of Lake Pocotopaug in East Hampton. He charged no admittance fee but admitted the public freely relying for his income for the facilities furnished upon his patrons renting his bathing suits, lockers, and boats, buying his food and refreshments and using his skating rink. The patrons could use the Pavilion and pier and enjoy the bathing without renting or purchasing anything from the defendant. It was wholly optional with them whether they paid the defendant anything during their stay at the Pavilion. The patrons were in the same relation to this resort that patrons of a department store would be. In both instances the Pavilion as well as the store was open for the reception of their patrons and neither could be considered as gratuitous guests but must be regarded as paying guests upon the invitation of the proprietor. The business principle underlying such business methods is that those who come to look will in most cases remain to pay or buy.

The plaintiffs' decedents were there by the invitation of the defendant. One who invites others to come upon his place of business and use his facilities is under a duty to exercise reasonable care to have and keep the premises and the facilities reasonably safe for his invitees. It may be that they will in making use of these facilities be injured as the plaintiff was by the amusement device resembling a miniature automobile in an amusement park in Saunders v. Pierce, 107 Conn. 735, 139 A. 690, or it may be that a facility in the amusement park, a miniature railway, on rounding a curve may leave the track due to the lack of a suitable guard rail and injure one walking in the park, Turgeon v. Connecticut Co., 84 Conn. 538, 543, 80 A. 714; in each case the proprietor was held liable for having maintained facilities in these parks which were defective, in violation of his duty to exercise reasonable care to have them reasonably safe for his patrons. See also Bernier v. Woodstock Agricultural Soc., 88 Conn. 558, 564, 92 A. 160; Godfrey v. Connecticut Co., 98 Conn. 63, 118 A. 446; Bunnell v. Waterbury Hospital, 103 Conn. 520, 525, 131 A. 501; Geohegan v. Fox Co., Inc., 104 Conn. 129, 132 A. 408; Rowe v. Huber, 93 N.J.L. 360, 108 A. 361; Easler v. Downie Amusement Co., Inc., 125 Me. 334, 133 A. 905. The same rule was applied in the following bathing beach or swimming pool cases: Maehlman v. Reuben Realty Co. (Ohio) 166 N.E. 920; Dinnihan v. Lake Ontario Beach Improvement Co., 8 N.Y. App. Div. 509, 40 N.Y.S. 764; Brotherton v. Manhattan Beach Improvement Co., 50 Neb. 214, 69 N.W. 757; Larkin v. Saltair Beach Co., 30 Utah, 86, 99, 83 P. 686; McKinney v. Adams, 68 Fla. 208, 225, 66 So. 988; Harvey v. Machtig, 73 Cal.App. 667, 671, 239 P. 78; Henroid v. Gregson Hot Springs Co., 52 Mont. 447, 456, 158 P. 824; Decatur Amusement Park Co. v. Porter, 137 Ill. App.? 448, 452. We cite these cases arising out of accidents at a bathing beach or swimming pool, not to indicate our concurrence with all of the views of law they express, but in order to show the general attitude of the courts; for example, they not infrequently hold that to be a matter of law which we would hold to be one of fact as we shall later indicate. If the conduct of the business of a public resort requires the proprietor in the exercise of reasonable care to furnish provision for guarding the patrons from danger in availing themselves of the attractions and enjoyments of the resort, or provisions for aiding them in escaping from such danger resulting from their use of these facilities, or for saving them after they have through their negligence gotten themselves into the danger, he must make such reasonable provision.

What reasonable care would require of a proprietor of a public resort must depend upon the conditions and the circumstances present. No absolute test can be set up. The plaintiff assigns as error the failure of the court in this case to charge as matter of law that the defendant was obliged to have a suitable person on hand and necessary appliances to effect rescues and save patrons in bathing and to make every possible effort to rescue those in danger. We think that questions of this character are questions of fact and not of law and for the decision of the jury and that the court ought not, except in the exceptional case, to dispose of such questions as matter of law.

The trial court instructed the jury: "There is another phase of the law, gentlemen, applicable to the situation here presented, to which I should direct your attention. The proprietor of a bathing beach for hire owes the obligation of reasonable care only to such members of the public as become his patrons. If, therefore, you should find from the evidence that Miss Cullen or Mr. Nordgren, on the occasion in question, did not hire a bathing suit or a bathhouse from him, or hire from him any bathing facilities, they were not patrons of his with reference to the bathing facilities, and were mere licensees, and under such circumstances the defendant did not owe them the legal duty when they went into the lake, which it appears is nine miles in circumference and has other bathing establishments, one of them as you will recall from the evidence, being only about a hundred feet away, of keeping appliances and persons present for their benefit. And when, under such circumstances, they went into the lake to swim, although it was in front of the defendant's premises, they assumed all of the risk of danger incident to the condition of the defendant's premises which have been disclosed by the evidence, the only danger being the depth of the water.

"Upon this phase of the law the plaintiffs themselves have offered evidence that Miss Cullen came to the lake, attired in her bathing suit; that she did not hire a bathing house from, or in any way patronize the defendant, but went into the water from the point of the defendant's pier and then attempted to make the unfortunate swim to the raft, which cost her and her companion their lives."

The rule of the trial court was at variance with our law and with the rule very generally of the authorities. All who visit a public resort of the character of Strong's Pavilion are patrons of the proprietor, whether they have paid the proprietor anything or not; to all who came to his resort he owed the duty of exercising reasonable care. If the rule of the court were the correct rule, the representative of Miss Cullen could not under the facts recover in this action and the court should have directed a verdict against him. Upon the undisputed facts we think it must be held as matter of law that Miss Cullen was negligent in attempting to swim to the float. She was a patron, and the case in behalf of her representative depended upon whether the jury found that the defendant had failed to provide suitable supervision and suitable appliances which in the exercise of reasonable care he should have furnished, and that his failure to furnish these was the proximate cause, that is the substantial factor, of the failure to rescue her and of her death. The real issue in that case would have been the determination by the jury of whether the defendant exercised reasonable care to rescue Miss Cullen after she got in this position of danger, and whether, had the defendant exercised such care, Miss Cullen would have been saved. The plaintiff's case, if any, rested upon the application of the last-clear-chance doctrine. In the case in behalf of Nordgren, the court correctly charged that Nordgren was not negligent in going to the rescue of Miss Cullen and that he was a patron of defendant, but the court did not instruct the jury that after Nordgren was in danger in attempting to rescue Miss Cullen the defendant owed to him the duty of exercising reasonable care to rescue him from his peril and that if Miss Cullen's danger and death were caused in whole or part by the negligence of the defendant the defendant would be responsible for the drowning of Nordgren, provided the jury found that defendant's neglect was the proximate cause, that is the substantial factor, in causing his death. We think the court erred in not so charging in these terms or their equivalent.

Summaries of

Nordgren v. Strong

Supreme Court of Connecticut First Judicial District, Hartford, October Term, 1929
Mar 3, 1930
149 A. 201 (Conn. 1930)
Case details for

Nordgren v. Strong

Case Details


Court:Supreme Court of Connecticut First Judicial District, Hartford, October Term, 1929

Date published: Mar 3, 1930


149 A. 201 (Conn. 1930)
149 A. 201

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