Becker v. City of Newark, A--48

• Decision Date: 26 February 1962
• Docket Number: No. A--48,A--48
• Citation: 178 A.2d 364,72 N.J.Super. 355
• Parties: Jean Marie BECKER, by her guardian ad litem Joseph Becker and Jseph Becker, individually, Plaintiffs-Respondents, v. The CITY OF NEWARK and Helen McEntee, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 355

72 N.J.Super. 355

178 A.2d 364

Jean Marie BECKER, by her guardian ad litem Joseph Becker and Jseph Becker, individually, Plaintiffs-Respondents, v. The CITY OF NEWARK and Helen McEntee, Defendants-Appellants.

No. A--48.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 15, 1962.

Decided Feb. 26, 1962.

Richard A. Walsh, Newark, for appellant, City of Newark (Vincent P. Torppey, Newark, attorney).

Gregory J. Castano, Newark, for respondents (Thomas E. Durkin, Jr., Newark, attorney).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

The City of Newark appeals from a judgment in favor of the plaintiffs entered in the county district court after a trial without jury.

The city is the owner and operator of the Hayes Park East Swimming Pool. The pool is open to use by the general public and concededly its operation is a proprietary function. See Weeks v. Newark, 62 N.J.Super. 166, 162 A.2d 314 (App.Div.1960), affirmed o.b., 34 N.J. 250, 168 A.2d 11 (1961).

Defendant Helen McEntee was an employee of the city in charge of the ladies locker room of the pool. Her immediate superior was Martin N. Manning, who was in general charge of the pool operation.

On September 1, 1960 at 10:00 A.M. the infant plaintiff, then 12 years of age, accompanied by girls of her age group arrived at the pool to go swimming. They entered the ladies locker room where they undressed in curtain covered cubicles, placed their clothes in baskets provided for the purpose, and checked the baskets with Mrs. McEntee. As they left the locker room Jean Marie noticed a young boy riding a tricycle in the locker room. The child was subsequently identified as Mrs. McEntee's five-year old son, Philip.

At about 12:30 P.M. the girls returned to the locker room and dressed to go home. Jean Marie stepped from the cubicle to an open area where she might more conveniently put on her shoes and socks. As she bent down to put on one shoe, Philip backed his tricycle against her right ankle severely injuring her Achilles Tendon.

Evidence was offered by the city through Mr. Manning that the riding of tricycles or bicycles in the locker room is contrary to the regulations promulgated by the city for the use of the locker room, and that this had been brought to the attention of employee attendants of the pool. There also was evidence that on at least two prior occasions Mrs. McEntee had permitted Philip to ride his tricycle in and about the locker room.

The trial court found 'that there was a negligent failure on the part of the city and it is quite clear that the presence of a five-year old child in a locker room, causes a hazard to others in the locker room' and that it was Mrs. McEntee's duty, 'to take reasonable precautions to see to it that the safety and well being of the users of the locker room were not jeopardized.'

The challenge which the city interposes to this adjudication is that (1) Mrs. McEntee in permitting Philip to ride his tricycle in the locker room was guilty of a default in her obligation to her employer to conform with safety rules prescribed by it; hence her act or...