Glaze v. Benson, 143

Citation106 A.2d 124,205 Md. 26
Decision Date23 June 1954
Docket NumberNo. 143,143
PartiesGLAZE et al. v. BENSON.
CourtCourt of Appeals of Maryland

Michael Paul Smith, Towson, and Sol. C. Berenholtz, Baltimore (Albert J. Goodman, Annapolis, on the brief), for appellants.

Clater W. Smith, Baltimore (Roszel C. Thomson and Clark, Thomsen & Smith, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appellant, a young man of twenty, was made a helpless invalid for life when he dove into shallow water from the rail of a dining pavilion at the beach resort of the appellee. At the trial of his suit for damages, filed by his mother as next friend and by her in her own right, the court directed a verdict at the end of the plaintiff's case on the ground that there had been no showing of primary negligence. The plaintiff appeals from the judgment on the verdict and, with vigor, challenges the correctness of the trial court's action. To further clarity, we shall throughout refer to the infant plaintiff below as the appellant.

It is agreed that at the time of the injury the appellee owned and operated for profit a public beach on the Magothy River, known as Mago Vista, and that the appellant was there as a paying patron. The declaration alleged that the appellee failed to maintain improvements and facilities in a reasonably safe condition, that he failed to warn patrons of hidden perils known to him but unknown to and, in the exercise of due care, undiscoverable by, the appellant, and that by the erection of a misleading sign, in effect, he invited the appellant to dive to disaster as and where he did. The argument in this Court is that the evidence shows negligence in failing to post a warning of shallow water at the point of the dive and in posting one so placed and worded as to justify an inference that the water was deep at that point. There is now no claim that the facilities were not in reasonably safe condition for the customary use for which they were intended.

Mago Vista is entered through an admission gate in a fence which encloses the area of shore and water which comprise it. Just about opposite the gate at the water is the dining pavilion, a frame, roofed over pier, forty feet wide by one hundred seventy-three feet long, one hundred forty feet of this length being over the water. On the pavilion are five lengthwise rows of tables, twenty-five in a row. A railing about waist high--a metal grille between wooden top and bottom rails--runs all around the sides of the pavilion. The distance between the top of the railing and the outside overhang of the roof is approximately the same as the height of the railing. Rafters which support the roof stand at regular intervals along the rail. There are no ladders or other means of access between the pavilion and the water, and no platforms, diving boards or other aids to diving.

In the twenty-five years of its operation, no one else has dived from the dining pavilion. Some years ago, when the arrangements for admission to the beach were different, children had been known to climb over the side of the pavilion in order to avoid paying the bathing fee.

As one faces the water from the entrance gate, there is an area beginning at the left side of the pavilion which is fenced in, both at the shore and in the water several hundred feet from shore. This is known as the safe area and a sign at the gate, through which it is entered, reads 'Safe'. The appellee described the area as one where it would be safe to go with the family or to play with children, and said that the sign meant to indicate shallow water. A chart filed as an exhibit giving depths at mean low water, shows that at no place within the area is water over 2.1 feet deep. Again, as one faces the water, there is seen the shore end of an uncovered frame swimming and diving pier forty-seven feet to the right of the shore and of the dining pavilion. The distance between the water end of the pier and the water end of the pavilion is eighty-four feet. The platform at the end of the pier is over deep water, which varies at mean low water from 4.5 feet to 11.8 feet. There are three ladders leading from the platform to the water to enable swimmers to return to the platform after diving. There are two spring diving boards on the platform and a high diving tower with two extensions for diving, one at eight feet above the platform and another at sixteen feet above.

On the day of the accident, the appellant, planning to meet a young lady and her grandmother, had driven his mother and sister to Mago Vista. The grandmother had already secured a table on the dining pavilion. After the families had met and greeted, the sister, the young lady and the appellant changed into bathing suits and went swimming in the safe area, where they remained for about an hour. The table on the dining pavilion which they were using was to the left of the center, as one faces the water, and towards the water end of the building. At one point during the bathing, the appellant's mother handed him a movie camera from the pavilion as he stood in the water near their table. After they finished swimming, they came back to the table and the girls had something to eat. The appellant did not feel like eating but wanted to swim. They talked of going over to the swimming pier so that they could dive but the girls were not ready to go.

The appellant got up suddenly and walked to the water end of the pavilion, stepped on a bench and from the bench to the top of the railing, and then dove in, taking a regular dive, not a flat dive. He testified that he thought the water was deep at the end of the pavilion because (a) he had seen a sign halfway between the water end of the pavilion and the swimming pier which read, according to the testimony of the appellee 'Danger', and according to the testimony of the witnesses for the appellant 'Deep Water, Swimmers Only'; (b) he could not see bottom as he looked down, the water being muddy; (c) he heard the water swishing against the piers which supported the pavilion; and (d) the fence which enclosed the safe area terminated at the left side of the pavilion, which was some fifteen or twenty feet to his left.

The appellant had finished the tenth grade at school and had then gone to sea as a worker in the engine room of ships. He had passed examinations which qualified him for duties as fireman, oiler and water-tender, and had taken courses at Sheeps Head Bay Maritime School in marine engineering, diesel and steam, with the aim of becoming an engineer officer. He had been swimming and diving regularly since he was six years old and was good at both. He had swum in every one of the seven seas.

The appellant says, as is true, that in passing on the correctness of the directed verdict, these facts, and the inferences reasonably to be drawn from them, must be considered in the light most favorable to him. So read, he argues that there are enough to permit reasonable minds to differ as to whether the appellee had done that which he should not have done or failed to do that which he should have done, and so present a question for the jury as to whether his actions or omissions were a proximate cause of the injury suffered by the appellant. The applicable law is clear. A possessor of land is liable for harm caused to invitees by a condition of which he is aware, or which in the exercise of due care, should have been aware, and which (a) he should realize involves an unreasonable risk to them; and (b) he has no reason to believe that they will discover or realize the risk involved, unless he exercises reasonable care, either to make the condition reasonably safe or to...

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24 cases
  • Western Maryland Ry. Co. v. Griffis
    • United States
    • Court of Appeals of Maryland
    • May 28, 1969
    ...Inc., 223 Md. 235, 239, 164 A.2d 273, 276 (1960); Morrison v. Suburban Trust Co., 213 Md. 64, 130 A.2d 915 (1957); Glaze v. Benson, 205 Md. 26, 106 A.2d 124 (1954).' 244 Md. at 595-596, 224 A.2d at 435-436. Honolulu has been cited with approval or followed in a series of snow and ice cases,......
  • Honolulu Limited v. Cain
    • United States
    • Court of Appeals of Maryland
    • December 8, 1966
    ...Inc., 223 Md. 235, 239, 164 A.2d 273, 276 (1960); Morrison v. Suburban Trust Co., 213 Md. 64, 130 A.2d 915 (1957); Glaze v. Benson, 205 Md. 26, 106 A.2d 124 (1954). Although in certain circumstances, the design or construction of the premises themselves may present an unreasonable danger to......
  • Casper v. Charles F. Smith & Son, Inc., s. 127
    • United States
    • Court of Appeals of Maryland
    • September 1, 1987
    ...area maintained by landlord, but lost that status when he left the walkway and fell into an unguarded window well); Glaze v. Benson, 205 Md. 26, 106 A.2d 124 (1954) (although invitation may be implied from environment, and plaintiff was an invitee at a public beach, invitation did not inclu......
  • Smith v. Bernfeld
    • United States
    • Court of Appeals of Maryland
    • October 11, 1961
    ...above and in the Restatement, Torts, Sec. 343, and in Maryland cases which have involved that rule. He cited quite fully Glaze v. Benson, 205 Md. 26, 106 A.2d 124, and Morrison v. Suburban Trust Co., 213 Md. 64, 130 A.2d 915; and all of them are pertinent here notwithstanding that neither E......
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