Clayton v. New Dreamland Roller Skating Rink

• Citation: 82 A.2d 458,14 N.J.Super. 390
• Decision Date: 27 June 1951
• Docket Number: No. A--283,A--283
• Parties: CLAYTON et al. v. NEW DREAMLAND ROLLER SKATING RINK, Inc., et al.
• Court: New Jersey Superior Court – Appellate Division

Page 390

14 N.J.Super. 390

82 A.2d 458

CLAYTON et al. v. NEW DREAMLAND ROLLER SKATING RINK, Inc., et al.

No. A--283.

Superior Court of New Jersey

Appellate Division.

Argued May 14, 1951.

Decided June 27, 1951.

Horace G. Davis, Jersey City, argued the cause for the plaintiffs-appellants.

Robert L. Hood, Newark, argued the cause for the defendants-respondents (William J. Egan, Newark, attorney).

Before Judges EASTWOOD, BIGELOW and SCHETTINO.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

This is an appeal from a judgment of dismissal entered by the Essex County Court, Law Division, at the end of the plaintiffs' case, on motion of the defendants in an action for damages for injuries sustained by Alice Clayton arising out of a fall in the defendants' premises.

On October 9, 1948, plaintiff, Alice Clayton, and her husband, entered defendants' premises as paying patrons for the purpose of roller skating. While skating, Mrs. Clayton fell, allegedly caused by chewing gum negligently permitted to remain on the main skating rink floor. She sustained a fracture of her left arm and was taken to the first aid room of defendants' premises where one Victor J. Brown, an officer of the defendant corporation, attempted to set Mrs. Clayton's arm.

Plaintiff testified that there was a normal Saturday night crowd; that she was an expert skater and skated continuously for about two hours prior to her fall. During that time, she noticed nothing unusual about the floor, other than chewing gum wrappers flying around. Plaintiff's husband testified that the skating floor was dirty; that he directed the attention of his wife and friends to dirt spots on the floor, but did not observe the floor at the place of the accident.

After her fall, Mrs. Clayton was assisted to her feet by her husband and a guard and skated off the main floor, through the observation area in which there was a refreshment stand, to the first aid room. Mr. Brown was summoned and upon arrival proceeded to administer first aid to Mrs. Clayton. He manipulated plaintiff's fractured arm and applied traction to it and when asked whether or not he was a doctor, Brown replied in the negative, stating that as a prize fight manager he had experience in such matters. A splint was applied to Mrs. Clayton's arm by Brown, and she was taken to Fitkin Hospital where efforts were made to set her arm with the aid of fluoroscopic and X-ray examination. Efforts to reduce the fracture proving insufficient, bone grafts had to be performed in addition to the use of plates and screws.

In the plaintiffs' complaint they charge the defendants with (1) negligence in the operation and conduct of their premises; that (2) the defendant, Victor J. Brown, for and on behalf of himself and as servant, agent and employee of the defendant corporation, unlawfully attempted to set the left arm of the plaintiff and acted in a capacity for which he had no skill, causing an aggravation of the injury of the plaintiff, Alice Clayton; that (3) the defendant, Victor J. Brown, individually, and as servant, agent and employee of the defendant corporation, committed an assault and battory upon the plaintiff, Alice Clayton; that (4) the defendant, Victor J. Brown, had no medical experience or capacity to treat the plaintiff for her injuries and although she requested the defendant to cease any further treatment, Brown, acting individually and as an employee of the defendant corporation, maliciously continued to mistreat the plaintiff, Alice Clayton, causing the injuries for which she brought her action; and (5), the plaintiff, James F. Clayton, as husband of Alice Clayton, sued for his damages Per quod.

The plaintiffs contend that the trial court erred in dismissing the complaint, in that jury questions were presented as to the defendants' negligence in the maintenance and operation of the roller skating rink; that the acts of defendant, Brown, were acts of negligence or assault and battery; that the trial court erroneously decided that plaintiff assumed the risks involved in the enterprise in which she was engaged; and improperly refused to allow Mrs. Clayton to testify as an expert as to proper standards of care for roller skating rinks of a size comparable to the one in question; and erroneously refused to allow the hypothetical question propounded to plaintiff's doctor.

As a general principle the proprietor of an amusement park is not an insurer of the safety of patrons and is not bound to protect them from such obvious risks as are necessarily incidental to the use of the premises or its amusement devices. The proprietor is, however, bound to exercise reasonable care and to render the premises reasonably safe and fit for the use intended. When the condition complained of results from the wear and tear incident to the normal use of the amusement or to causes that originate in the wrongful conduct of strangers, the operator must be shown to have had knowledge or notice of the condition for sufficient time before the injury to remedy the defect or to safeguard the patron from contact with it.

It is stated in 52 Am.Jur., secs. 62, 63, pp. 306, 307:

'While the general rules and principles stated throughout this division apply to all theaters and public amusements alike, it is obvious that the various kinds of exhibitions, shows, resorts, devices, and mechanisms to which the public is invited for amusement and entertainment differ materially in the hazards and dangers they possess for those who use them. It follows that what amounts to due care by the owner or operator for the safety of invitees depends in any given case not only on the facts and circumstances of the particular case, but on the nature, construction, manner of operation, and the like, of the particular place of amusement, resort, device, or mechanism in suit. The care required is commensurate with the risk involved.

'Skating rinks are not ordinarily regarded as inherently dangerous or of such unusual nature as to impose on the owner or proprietor of such amusements an unusual degree of care. * * * However, the owner of a skating rink is under an active obligation to guard patrons against risks which might be reasonably anticipated.'

There is nothing distinctive about the liability of owners of skating rinks apart from the general responsibility to maintain the premises in a reasonably safe condition. 98 A.L.R. 575; Brackins v. Olympia, 316 Mich. 275, 25 N.W.2d 197, 168 A.L.R. 896.

In the matter Sub judice, the evidence proffered by the plaintiff was to the effect that while skating on the rink gum wrappers were observed floating in the air; that Mrs. Clayton's skate struck something causing the wheel to suddenly stop; that she stumbled and fell, was assisted to her feet and helped through the spectator section to the first aid room; that the next day she observed that the skate wheel contained a sticky substance resembling chewing gum which caused her precipitation to the floor. Plaintiffs' witnesses testified that they observed dark stained spots in the skating area, but none were definitely established at the point of plaintiff's fall, nor was the substance of the spots proven. Furthermore, the evidence failed to rule out the equally possible hypothesis that the foreign substance later found on Mrs. Clayton's skate was picked up at a point between the skating area and the first aid room. There was also no evidence that the substance alleged to be chewing gun was on the skating area prior to the accident, or that if it were, it existed for a sufficient period of time to constitute notice to the defendant and to show a want or reasonable care in failing to remedy the defect. Daddetto v. Barbiera, 4 N.J.Super. 479, 67 A.2d 691 (App.Div.1949), certif. denied, 3 N.J. 372, 70 A.2d 536 (1950); Oelschlaeger v. Hahne & Co., 2 N.J. 490, 66 A.2d 861 (1949); Restatement, Torts, N.J. Anno., sec. 343 (1940). Cf. Spitzkopf v. Mitchell, 114 N.J.L. 160, 176 A. 186 (Sup.Ct.1935) and Esposito v. G.O.K. Enterprises, Inc., 137 N.J.L. 400, 60 A.2d 287, 288, (Sup.Ct.1948). In the Esposito case, it was held: 'Negligence is never presumed. It is a fact that must be shown. Cleary v. Meyer Bros., 114 N.J.L. 120, 176 A. 187. On a motion for nonsuit and for a directed verdict for the defendant the rule of procedure is well established that 'The court must assume as true all testimony which has been presented on behalf of the plaintiff and he must be given the benefit of all lawful deductions therefrom. If this hypothesis will support a verdict for the plaintiff the motions should be denied.' Israel v. Travelers Insurance Co., 116 N.J.L. 154, 182 A. 840, 841. On the other hand, it has been repeatedly held by our courts, and it is likewise a well settled rule, that 'where the evidence with all fair and legitimate inferences arising therefrom, is...