Cooper v. City of Pittsburgh

• Decision Date: 22 November 1957
• Parties: Janet W. COOPER, a Minor, by John W. Cooper, her Guardian, and John W. Cooper and Mary M. Cooper, v. CITY OF PITTSBURGH, a Municipal Corporation, Appellant.
• Court: Pennsylvania Supreme Court

136 A.2d 463

390 Pa. 534

Janet W. COOPER, a Minor, by John W. Cooper, her Guardian, and John W. Cooper and Mary M. Cooper, v. CITY OF PITTSBURGH, a Municipal Corporation, Appellant.

Supreme Court of Pennsylvania

November 22, 1957

Argued October 2, 1957

Appeals, No. 247, March T., 1957, and No. 27, March T., 1958 from judgments of Court of Common Pleas of Allegheny County Oct. T., 1953, No. 664, in case of Janet W. Cooper, a minor by John W. Cooper et al. v. City of Pittsburgh. Judgments reversed.

Trespass for personal injuries. Before WEISS, J.

Verdicts, for minor plaintiff in the sum of $15,865, and for parent plaintiffs in the sum of $1,236; defendant's motion for judgment n.o.v. refused and final judgments entered. Defendant appealed.

Judgment is reversed and is here entered for defendant non obstante veredicto.

Thomas E. Barton, Assistant City Solicitor, with him John A. Robb, Assistant City Solicitor, and J. Frank McKenna, City Solicitor, for appellants.

John E. Evans, Jr., with him Evans, Ivory & Evans and Tobias & Tobias, for appellees.

Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.

OPINION

MR. JUSTICE BELL

Janet Cooper lived in Pittsburgh a short distance from McKinley Park which the City maintained and operated as a public playground. At the time of the accident, about 7:20 p.m. on August 1, 1951, Janet, aged 12, accompanied by Barry Balach, aged 11, and Carole Malone, aged 11, went to the park. The playground covered approximately 25 acres which included a baseball field, a softball field, two tennis courts, and an area with swings, sliding boards and sand boxes. It is open to the public from one p.m. to nine p.m., Monday through Friday during the summer season. Two recreation leaders, a man and a woman, are assigned to the playground during these hours. It was customary for the male recreation leader, John W. O'Rourke, to take his supper hour between 5:30 and 6:30, and for the female recreation leader, Noranne Ott, to take her supper hour from 6:30 to 7:30, because experience had shown that that period of time was least heavily attended, probably because users of the playground were themselves at dinner. Mrs. Ott had passed through the swing area at the time she went to supper at 6:30. O'Rourke had not been in that part of the park for twenty minutes to half an hour.

The children went right to the swings and started to wrap up the chains, stand up on the swings, twist the swings around, and let them unwind. The spinning motion resulting from the unwinding of the swing made Janet dizzy and she fell over backwards. She sustained a compound fracture of the right ulna and radius and her right arm had to be amputated between the elbow and shoulder.

The jury returned a verdict in favor of the minor plaintiff in the sum of $15,865 and for the parent-plaintiffs in the sum of $1236. The City has appealed from the judgment entered on each verdict, contending it is entitled to a judgment non obstante veredicto.

Considering the evidence, as we must, in the light most favorable to plaintiff, together with all reasonable inferences therefrom, the facts in addition to those hereinabove stated were as follows: The rules forbade children to swing double, swing too high, climb the ropes, wind the ropes around each other, push each other into the path of the swing, or swing while standing. O'Rourke was supervising or engaging in a baseball game ^* which was in a part of the park from which he could not see the swings. Had he seen plaintiff twisting and winding the swings he would have stopped her. The parties agree that plaintiff's injury was not due to a defective appliance or to a dangerous condition of the premises.

* O'Rourke's duties, as recreational leader, included organizing play activities, initiating group games, group participation, athletic games, team participation in a baseball league (composed of recreational centers), softball games (played by boys and girls and even little girls), Chinese Checkers, stunts, story telling, and the like.

A swing is not an inherently dangerous instrumentality. Children of all ages have used swings for many generations; sometimes they consist of a rope tied to a tree limb; more often, two ropes tied to a tree limb with a piece of wood for a seat. Young children, even as young as four years old, have from time immemorial, used such swings, swung too high or too wide or too fast, swung double, climbed the ropes, twisted the ropes, pushed each other into the path of the swing; and done many other things while playing which every man, woman and child, and certainly every parent knows minor children do, but which involve risk, danger or injury and are forbidden by playground safety rules.

"A municipality is not an insurer of the safety of children playing on its public playgrounds. However, it is well settled that in maintaining parks and playgrounds a city must exercise reasonable care: [Citing cases]": Styer v. Reading, 360 Pa. 212, 61 A.2d 382. A municipality maintaining a park or playground must exercise reasonable care to keep the property in reasonably safe condition for those who lawfully come upon it, and must also furnish reasonable policing and supervision of it in order to protect children who customarily play there: Hill v. Allentown Housing Authority, 373 Pa. 92, 95 A.2d 519. The city, we repeat, is not an insurer of the safety of children. It must supervise children to the same degree that a reasonably prudent parent would do under the circumstances - in this case supervising children over a 25 acre playground.

In Gleason v. Pittsburgh Housing Authority, 354 Pa. 381, 47 A.2d 129, this Court entered a judgment n.o.v. against a four year old child who fell from a sliding board while climbing the face of the board instead of using the steps to get to the top of the board. The Court said (page 383): "An ordinary child's sliding board is not an inherently dangerous appliance requiring the presence of an attendant, or in lieu thereof a fence to exclude children from the use for which it was designed."

In Gustafson v. Kennywood Park Corporation, 319 Pa. 547, 181 A. 508, the park maintained a see-saw consisting of two parallel iron bars bound together with rungs, like a ladder, and suspended at the center from an iron standard extending approximately six feet above the ground in such a way that children standing on the surface could grasp the rungs at each end and see-saw as they swung up and down on the contrivance. A boy, 12 years old, climbed on the upper side of the ladder and got his hand caught in the pivoting mechanism. This had happened on prior occasions to other boys and the attendants chased them off when they saw them there. Plaintiff contended there, as here, that the park did not provide adequate and reasonable supervision to prevent injury to children. The Court (1) held (a) that plaintiff was liable only for ordinary care and prudence and (b) that this did not require the constant presence of an attendant; and (2) granted a judgment n.o.v. for the defendant.

The effect of plaintiff's contention would be to require the city to have sufficient supervisors (a) to supervise sixty minutes of every hour of every day the use by children of swings, slides, sand boxes and other amusement facilities common to playgrounds, and (b) to organize and supervise hard and soft ball games and other sports, and (c) to prevent fighting and rowdyism, and (d) to carefully watch and safeguard all the children in the entire playground virtually every minute he, she or they are there. Such a standard and, to be more specific, the standard advocated by this plaintiff, cannot be adopted because it would impose so high and so unreasonable a degree of care as to make the city, in practical effect, an insurer of the safety of every child who enters the playground. ^*

* If this standard of supervision and care which plaintiff advocates were required, it is questionable how long each city could maintain its present playgrounds and how adversely it would affect the erection of additional playgrounds.

We have examined all the authorities relied upon by appellees, but their facts make each of them clearly distinguishable from the instant case.

DISSENT BY: MUSMANNO

DISSENTING OPINION BY MR. JUSTICE MUSMANNO:

Janet W. Cooper, the minor-plaintiff in this case, lost her right arm as the result of riding on one of the swings provided by the City of Pittsburgh in McKinley Park. Many of the children using these chain swings would twist them until the chains wound tight, whereupon they would release the tension by lifting their feet from the ground and spinning rapidly enjoying the vertiginous sensation created by the rapidly turning seat on which they sat. The revolving ride produced a dizziness which, while pleasurable, as intoxication is pleasurable to the drinker, frequently deprived the rider of a sense of balance and direction.

On August 1, 1951, Janet, then 12 years of age, was participating in this type of play. At the end of an excited whirling, she tried to operate the swing in the normal pendulum fashion, but on the second upward movement she lost equilibrium, muscular grip escaped her and she toppled to the ground, sustaining severe comminuted fractures to her right arm which had to be amputated. Through her father she brought suit against the City of Pittsburgh and recovered a verdict of $15,865. Her parents were awarded a verdict of $1,236.

The City of Pittsburgh appealed, and this Court is entering judgment n.o.v. Wiping out the verdict of a jury in any case is a drastic procedure and should not be exercised unless the law imperatively dictates that it be done. I fail to see any such imperious necessity here. On the...