Dunn v. Finley

• Decision Date: 12 May 1964
• Citation: 201 A.2d 190,151 Conn. 618
• Court: Connecticut Supreme Court
• Parties: Joseph DUNN v. Richard J. FINLEY. Supreme Court of Errors of Connecticut

Page 190

201 A.2d 190

151 Conn. 618

Joseph DUNN v. Richard J. FINLEY.

Supreme Court of Errors of Connecticut.

May 12, 1964.

William B. Hennessy, Waterbury, with whom was Charles R. Summa, Waterbury, for appellant (plaintiff).

William B. Fitzgerald, Jr., Waterbury, with whom was William B. Fitzgerald, Waterbury, for appellee (defendant).

Before KING, C. J., MURPHY, ALCORN and COMLEY, JJ., and BOGDANSKI, Acting Justice.

MURPHY, Associate Justice.

The plaintiff failed to recover a verdict for damages from the defendant for injuries which the plaintiff claimed he sustained to his head when he tripped on the matting on a platform of a diving tower at Lake Quassapaug on June 27, 1955, and fell to the water, nine feet below. The trial court refused to set aside the verdict and the plaintiff has appealed, assigning error in the refusal to set aside the verdict, in rulings on evidence, in the refusal to charge as requested, in the charge as given, and in the finding. The finding is corrected by striking paragraphs 28 through 33 of the plaintiff's claims of proof, since they are in fact claims advanced by the defendant. The finding cannot be corrected by adding five paragraphs of the draft finding, because no evidence concerning the claimed facts was introduced by the plaintiff, nor was any attempt made to prove them otherwise than by argument of counsel.

The defendant operates a swimming club at Lake Quassapaug to which the public is admitted on payment of a fee. A stationary raft is located in the bathing area, and on the southeast corner of it there is a platform or tower about nine feet high which is used by patrons for diving into the water. The two sides of this platform which are above the edges of the raft on the south and east are not protected by railings. The other two sides, above the floor of the raft, have railings.

Substantially, the plaintiff's claims of proof are: Along with his wife and a companion, the plaintiff had paid the fee and was using the defendant's facilities at about 6 o'clock on the afternoon of June 27, 1955. The plaintiff ascended to the diving platform and was looking over the side preparatory to diving when he caught his foot in the edge of the cocoa matting on the floor of the platform and plunged over the side into the water, striking his head in such a manner that an artery was torn and a subdural hematoma developed which had to be removed by surgery. The matting was loose and torn and bulged between the nails which fastened it to the platform. The defendant was negligent in maintaining the platform with defective and unsafe matting and in failing to have guardrails on the two open sides of the platform.

The principal claims of proof of the defendant were that he had no knowledge of the incident until almost a year after it is alleged to have occurred, when in early June, 1956, the plaintiff and Charles R. Summa, his attorney, drove to the club and, while the plaintiff remained in the car, Summa entered the office and told the defendant that the plaintiff had told him that he was on the diving platform on June 27, 1955, and was being pushed by one of his companions when he caught his foot in a piece of loose matting and fell into the water. The matting was in good condition on June 27, 1955, being new material which had been properly installed during the last two weeks in May. The diving tower was safely constructed and was inspected several times a day. Railings on the water sides of the platform would be a hindrance and a hazard to divers and would create an unsafe...