From Casetext: Smarter Legal Research

Spitzkopf v. Mitchell

Supreme Court of New Jersey
Jan 18, 1935
176 A. 186 (N.J. 1935)


Submitted October 12, 1934 —

Decided January 18, 1935.

Plaintiff, a patron of defendant's swimming pool, was injured by the unusual and apparently inexplicable conduct of another patron of the pool in diving off a high spring board in a direction not contemplated by the conditions. There was nothing to show that defendant had knowledge of any such practice or, indeed, that anything of the kind had ever been done before. Held, that a nonsuit was properly directed on the ground that no negligence of defendant was shown.

On plaintiff's appeal from the Monmouth Common Pleas Court.


For the appellant, Theodore J. Labrecque and John J. Quinn.

For the respondent, J. Victor Carton.

The appeal is from a judgment of nonsuit. The defendant-respondent was operating an indoor swimming pool and the plaintiff and her intended husband bought tickets entitling them to the privileges of the pool, and after donning their bathing clothes, entered the water and while they were swimming around in the pool some person, apparently not named in the case, who was diving from what was called the high diving board, executed a dive in such manner that instead of going straight forward from the end of the diving board, he went in a diagonal direction and struck the plaintiff in the head, inflicting serious damage from which she suffered for some time.

The suit is not against the diver, but against the proprietor of the pool, apparently on the theory that he was negligent, either personally or through his servants, for failure to employ servants and properly supervise them, in seeing to it that no such accident as that shown by the evidence should occur. The trial judge in awarding a nonsuit said that he could not conceive of any possible precaution that the defendant below could have taken whereby he could properly control the actions of any one after he got on the spring board. We think that this was a correct disposition of the matter. It seems clear that everyone knew the diving board was in use, or likely to be in use, and, indeed, the plaintiff, herself, testified that she was watching out generally for divers off the high board. There was no evidence in the case to indicate that any diagonal diving had ever previously taken place or that it was a normal thing to do. If it had been shown to be a frequent occurrence and that the defendant knew or should have known that fact and the danger involved, it might be that he would be charged with the duty of care to provide against it as, for example, in Alcott v. Public Service Corp., 78 N.J.L. 482; and particularly in Connolly v. Palisades, c., Co., 11 N.J. Mis. R. 841 , affirmed, 112 N.J.L. 502, but nothing of this kind was in the case before us, and we have merely the totally unexpected vagary of a fellow patron of the pool who succeeded in injurying another patron thereby.

The judgment will be affirmed.

Summaries of

Spitzkopf v. Mitchell

Supreme Court of New Jersey
Jan 18, 1935
176 A. 186 (N.J. 1935)
Case details for

Spitzkopf v. Mitchell

Case Details


Court:Supreme Court of New Jersey

Date published: Jan 18, 1935


176 A. 186 (N.J. 1935)
176 A. 186

Citing Cases

Keating v. Jones Dev. of Missouri, Inc.

"The substantive law to be applied is the law of Florida. The procedural rules are to be found in the Federal…

Kane v. Basralian

Thus, we have merely the totally unexpected vagary of a two-year-old child who escaped his father's vigilance…