Boll v. Spring Lake Park, Inc.

• Decision Date: 16 July 1962
• Docket Number: No. 2,No. 48738,48738,2
• Citation: 358 S.W.2d 859
• Parties: Robert BOLL, Respondent, v. SPRING LAKE PARK, INC., Appellant
• Court: Missouri Supreme Court

Page 859

358 S.W.2d 859

Robert BOLL, Respondent, v. SPRING LAKE PARK, INC., Appellant.

No. 48738.

Supreme Court of Missouri, Division No. 2.

July 16, 1962.

Morris A. Shenker, Murry L. Randall, Bernard J. Mellman, St. Louis, for appellant.

James F. Koester, St. Louis, for respondent.

STOCKARD, Commissioner.

Defendant has appealed from a judgment in the amount of $75,000 for injuries sustained by plaintiff when he dived into shallow water at a swimming pool. In addition to challenging two of plaintiff's instructions, defendant contends that plaintiff was contributorily negligent as a matter of law. We shall refer to the parties as in the trial court.

Defendant was the owner of Spring Lake Park which it operated as a recreation area. On June 18, 1953, plaintiff, who was then 21 years of age, and his girl friend went to the park, paid the admission fee of sixty cents each, and were admitted to the grounds. After playing tennis for awhile plaintiff and his friend changed to swimming attire and went to the swimming pool. The pool was about 200 feet in length and somewhat oval in shape. It had vertical concrete sides with a concrete walk around it, but it had a 'natural earth bottom' which was 'filled with sand' from three to four inches. A photograph of the pool taken when empty indicates that the bottom would be quite muddy when water was in it. At one end of the pool there was a diving board, and the depth of the pool at the area where a diver from the board would enter the water was 9 to 10 feet. However, this deep area did not extend across the entire end of the pool where the diving board was located, and near the sides of the pool the water was not nearly so deep. A rope, apparently buoyed in some manner, was stretched across the pool about 50 to 55 feet from the diving board. Plaintiff walked around the pool to a point which was between the rope and the diving board and was about ten to fifteen feet farther down the pool from the end of the diving board. The water in the pool was 'like a muddy lake' and it was 'at least as dark as coffee.' Plaintiff could not see the bottom. No one was in the pool at the time and no lifeguard was on duty. Plaintiff testified that he looked for depth markings but saw none. Although there was a sharp dispute in the evidence of plaintiff and defendant on the issue, the jury was authorized to find, if it believed the evidence of plaintiff and disbelieved that of defendant, that there were no markings or signs at the pool indicating the depth of the water. Plaintiff received no oral warnings as to the depth of the water. He threw a rubber inner tube into the water two or three feet from the edge of the pool and then dived 'straight down' through the tube. At that place the water was approximately three feet in depth, and he struck the bottom of the pool with his head. His neck was broken resulting in permanent paralysis from the shoulders down through his body.

Plaintiff was an experienced diver and he had had considerable experience over a period of approximately nine years around water and swimming pools. He admitted that he knew 'it would be dangerous to dive in three feet of water straight down.' The occasion on which plaintiff was injured was the first time he had been to the pool that 'season,' and the evidence indicates that he had not been in the pool in previous years, but this is not entirely clear.

Plaintiff submitted his case to the jury on the alleged negligence of defendant in failing to warn him of the danger of diving in the pool at the place he did when the water was in such a dirty and unclear condition that he could not see the bottom of the pool. While the defendant does not contend on this appeal that plaintiff's evidence did not present a submissible case as to defendant's negligence, a review of the duties of defendant as the operator of a recreation area is helpful in ruling on the contention of defendant that plaintiff was contributorily negligent as a matter of law.

Defendant maintained and operated the pool for use by the public upon the payment of an admission fee. It was designed for use and was in fact used for both swimming and diving. While defendant was not the insurer of the safety of plaintiff, Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52, 48 A.L.R.2d 97; Vukas v. Quivira, Inc., 166 Kan. 439, 201 P.2d 685, 688; 52 Am.Jur. Theaters, Shows, Exhibitions, and Public Resorts Sec. 47, it was bound to use reasonable care in furnishing and maintaining its accommodations for the purpose for which they were apparently designed and to which they were adapted. Waddel's Adm'r v. Brashear, 257 Ky. 390, 78 S.W.2d 31, 98 A.L.R. 553; Vukas v. Quivira, Inc., supra; Lake Brady Co. v. Krutel, 123 Ohio St. 570, 176 N.E. 226, Blanchette v. Union St. Ry. Co., 248 Mass. 407, 143 N.E. 310; Johnson v. Hot Springs Land & Improvement Co., 76 Or. 333, 148 P. 1137, L.R.A.1915F, 689; Cleary v. Indiana Beach, Inc., 7 Cir., 275 F.2d 543; 52 Am.Jur. Theaters, Shows, Exhibitions, and Public Resorts Sec. 71; Hughes v. St. Louis Nat. League Baseball Club, Inc., 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904; Annotations 22 A.L.R. 610 and 48 A.L.R.2d 104. While the standard of care remains the same, what constitutes its exercise necessarily varies with the situation and attending circumstances, or 'with the particular conditions and circumstances involved in the given case,' Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025, 1029, 61 A.L.R. 1269, and in the case of a diving pool this 'involves the duty of being diligent to see that water in a diving pool is of sufficient depth to make it reasonably safe for the purpose; or, if it be not safe for that sport with the use of the facilities furnished, there arises the duty to warn or caution patrons by signs or otherwise of the hazard, particularly of any latent or hidden condition of danger.' Waddel's Adm'r v. Brashear, supra . See also Perkins v. Byrnes, supra; Blanchette v. Union Street Railway, 248 Mass. 407, 143 N.E. 310; Louisville Water Co. v. Bowers, 251 Ky. 71, 64 S.W.2d 444; Johnson v. Hot Springs Land & Improvement Co., supra, Grove v. D'Allessandro, 39 Wash.2d 421, 235 P.2d 826; Annotation 48 A.L.R.2d 126, 129, 131.

We shall now look to the reciprocal duty of a patron of a recreation area. A patron of a public swimming pool operated for profit has a right to rely upon the assumption that the proprietor has discharged his duty and provided a place that is reasonably safe for the use invited. Waddel's Adm'r v. Brashear, supra; Johnson v. Hot Springs Land & Improvement Co., supra; Annotation 48 A.L.R.2d at p. 118. He is not required to make a critical inspection to assure himself that it is safe. Waddel's Adm'r, v. Brashear, supra; Louisville Water Co. v. Bowers, 251 Ky. 71, 64 S.W.2d 444; Gates v. Gautier, 29 Cal.App.2d 524, 85 P.2d 141. See also Hughes v. St. Louis Nat. League Baseball Club, Inc., supra. However, he has the duty to exercise ordinary care to avoid known or appreciated dangers and also has the duty to discover conditions of danger which a prudent person in the exercise of ordinary care under the attending circumstances would discover. Waddel's Adm'r v. Brashear, supra. There is no question but that plaintiff did not know the water at the place he dived was only three feet deep. Therefore, while he knew of the danger of diving in three feet of water, he did not have knowledge of the dangerous condition at the place he made his dive. The precise issue thus presented is whether it can be said under all the attending circumstances that as a matter of law plaintiff was negligent in not discovering the dangerous condition, that is, in not discovering that the muddy water was only three feet in depth.

The pool was approximately 200 feet in length and one fourth of it was set apart from the rest by a rope stretched across the pool. A person reasonably could infer that the portion so set apart was designed for diving as evidenced by the presence of the diving board, and the defendant knew or should have known that in an area so set apart, at least when there were no warning signs, patrons would dive from the sides of the pool as well as from a springboard. Plaintiff apparently was not familiar with the underwater physical features of the pool and could not, because of the muddy water, see the bottom of the pool, but he was not required to make a critical examination of the facilities, and he was entitled to rely to a certain extent that defendant would not invite him to use a dangerous facility. We are of the opinion that a jury could have found from the facts and attending circumstances that plaintiff was contributorily negligent. In other words, under the evidence defendant was entitled to an instruction on contributory negligence, and such an instruction was given at its request. However, when the evidence favorable to plaintiff is taken as true and all legitimate inferences deducible therefrom are viewed in the light most favorable to plaintiff, as we must do in determining the issue of plaintiff's contributory negligence as a matter of law, we cannot say that the legal effect of the evidence is such that negligence on the part of plaintiff is the only reasonable conclusion which could be drawn therefrom.

Defendant cites and relies on several Missouri cases in which contributory negligence as a matter of law was found to exist. We do not disagree with those cases, but the factual situation in each makes them distinguishable. McFarland v. Grau, Mo.App., 305 S.W.2d 91, was a drowning case in which a boy fourteen years of age with known limitations as a swimmer attempted to swim across a lake where he knew the water was deep after telling his companions that he 'couldn't make it.' In Turner v. City of Moberly, 224 Mo.App. 683, 26 S.W.2d 997, another drowning case, a fourteen-year-old non-swimmer, who had been warned to stay away from a lake, swung on a rope over known deep water and...