Gluckauf v. Pine Lake Beach Club, Inc.

• Decision Date: 10 January 1963
• Docket Number: No. A--824,A--824
• Citation: 78 N.J.Super. 8,187 A.2d 357
• Parties: Irma GLUCKAUF, administratrix ad prosequendum of Peter Gluckauf, deceased, and Irma Gluckauf, administratrix of the Estate of Peter Gluckauf, deceased, Plaintiff-Respondent, v. PINE LAKE BEACH CLUB, INC., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 8

78 N.J.Super. 8

187 A.2d 357

Irma GLUCKAUF, administratrix ad prosequendum of Peter Gluckauf, deceased, and Irma Gluckauf administratrix of the Estate of Peter Gluckauf, deceased, Plaintiff-Respondent, v. PINE LAKE BEACH CLUB, INC., Defendant-Appellant.

No. A--824.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 17, 1962.

Decided Jan. 10, 1963.

Philip C. Geibel, Paramus, for appellant (J. Emmet Cassidy, Hackensack, attorney).

Bernard Chazen, Hoboken, for respondent (Baker, Garber & Chazen, Hoboken, attorneys; Nathan Baker, Hoboken, of counsel; Bernard Chazen on the brief).

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Plaintiff's negligence action against defendant under the Wrongful Death Act, N.J.S. 2A:31--1 et seq., N.J.S.A. was tried in the Superior Court, Law Division, before a jury and resulted in a verdict in plaintiff's favor in the sum of $32,500. Defendant's motion for a new trial on the several grounds stated therein was denied. Defendant brings this appeal from the resultant judgment.

On September 2, 1960 Irma Gluckauf (hereinafter 'plaintiff'), a 47-year old widow, went with her son Peter (hereinafter 'decedent'), then 15 years old, to the Pine Lakes Swimming Club, operated by defendant and located in Washington Township, New Jersey, to enjoy the facilities there as patrons and invitees of the defendant. They were accompanied by plaintiff's sister, Mrs. Lena Scarano, and her three children. Mrs. Scarano paid the admission for everyone in their party. They arrived about 2 P.M., and this was the first time plaintiff and decedent had been to this swimming club.

This lake is approximately 300 feet long and 250 feet wide, with a float situated near its middle. The lake is about nine feet deep at the float. It has a diving area at one end where the depth is also approximately nine feet. There is a roped off area for small children where the water is shallow.

Decedent changed into his bathing suit and went into the lake for a swim. He began at the area roped off for children and started to swim toward the diving area. His actual destination was unknown because no one was informed of his intentions either before he went into the lake or at any time after he entered the water. As he swam he moved fast at first and then began to slow down. Next, he appeared to be standing in one place and suddenly he went under and drowned. His body was recovered approximately 25 minutes after he submerged. There was no evidence as to why he went under. Plaintiff testified that decedent was in good health, although he was nearsighted. He gave no distress signal before submerging.

Plaintiff witnessed the happening and testified to the above facts. When her son went under, she ran along the beach screaming, 'Help my boy. He is in there. Help.' No one seemed to hear her at first. Finally, people gathered around her and asked, 'Where, where?' She answered, 'In there. I saw him go under.' In her words, 'They didn't believe me.' Someone suggested paging the boy over the loud speaker and this was done with obvious lack of success. Plaintiff kept insisting, 'My boy is in there. He isn't anywhere else. He is in the water. Why don't you go in and do something?' Finally, people began diving for him and his body was recovered from the lake after the 25-minute lapse noted above.

Plaintiff testified that decedent 'loved swimming'; had been in camp for two summers where he swam; on nice Sundays she and he went to the High Bridge Park Swimming Pool in New York City; he did the crawl stroke; and 'he was a good swimmer.' Immediately prior to the fatal happening she saw him swimming 'and he swam very nicely' toward the diving area. He engaged in full physical activity in school, had a physical checkup once a year, and was in good health. She reiterated on cross-examination that he was 'a pretty good swimmer,' had swimming lessons at camp, where he spent a month for two successive summers during 1952 and 1953, and had been swimming from that time on.

Mrs. Scarano, decedent's aunt, who witnessed the tragic episode corroborated the details testified to by her sister, the plaintiff. She had watched the decedent from the time he began swimming at defendant's pool and thought 'he swam very well' up to the point where he slowed down, and then she became apprehensive. She looked at the lifeguard who appeared to be watching decedent at that point 'but then he turned his head away.' She testified that this lifeguard later said during the commotion, while standing next to her, 'I watched him slow down but I thought he had made it.' She described the distance travelled by decedent before getting into trouble as 'maybe twenty feet,' and then referred to it as a little more than the courtroom. The courtroom length is not specified in the record.

The gravamen of the complaint was the defendant was negligent in failing to provide an adequate number of trained lifeguards, failing to have adequate rescue apparatus available, failing through its servants, agents and employees to promptly initiate rescue operations and to promptly procure proper and adequate rescue apparatus, and failure of defendant's employees to keep a proper lookout for persons in the pool. There was sufficient evidence at the trial from which the jury could reasonably conclude that defendant was negligent in these particulars.

There was testimony that defendant did not have present and ready for use adequate life saving equipment, such as ring buoys, heavy lines, bamboo poles and grappling irons; did not have a rowboat with a lifeguard and proper equipment in it in the deep water area near the float; did not have proper ropes and float lines in the deep water area to serve as resting places for tired swimmers and for emergencies; did not, at the time of this happening, have a lifeguard at the lifeguard station near the dam; did not have properly trained and experienced personnel as lifeguards, but instead used lifeguards between the ages of 15 and 19 and an acting head lifeguard who was only 18 years old; did not have adequate like saving drills and instruction in co-ordinated rescue procedures; did not act with due care in looking out for decedent and failed to come promptly to his aid; unreasonably delayed rescue procedures, thus precluding the chance of using artificial respiration; and failed to conduct the rescue in accordance with standard practice. There was expert testimony that these omissions and failures to act on defendant's part were contrary to proper procedures.

Decedent was slightly more than 15 1/2 years old at his death, having been born on February 16, 1945. His father had predeceased him by about 10 years. Besides his widowed mother, then 47 years old, he was survived by a sister, Joan, who was 21 years old at the time of the trial in April 1962. Joan was then attending the graduate school of the University of Copenhagen in Denmark on a Fulbright scholarship, which covered all her expenses, including tuition, transportation and living costs. She had also won the Woodrow Wilson Fellowship to Radcliffe College, beginning in September 1962. Plaintiff, before the happening on September 2, 1960, had been employed by a publishing house where she earned between $40 and $50 a week. After this tragedy she had no earnings.

Decedent had been attending Bronx High School of Science and was about to enter his junior year there. This is a special New York City high school for gifted students who qualify for entrance by taking special examinations, by having high IQs, and by recommendation from their previous schools. Thus, only top students throughout the city are enrolled in this school. He had always been an exceptionally bright student. His mother testified that he had an IQ of 153 when he was seven or eight years old. He had twice won his grammar school spelling championship. He was best or second best in his high school class, averaging 95. He had tutored children of his sophomore class in Latin; had passed a New York Regents test in mathematics with a mark of 100; and had received 98 in a biology test. The boy had special musical talent and creative ability. He planned to go to college and take courses in the field of science in order to become a biochemist. Kenneth Bobrowsky, science co-ordinator at Bronx High School of Science, testified that he was decedent's science and project teacher in his sophomore year and the boy, 'one of the most serious, diligent, competent and hard working students in the class,' was in the top 1% Of his class of about 800 students. He excelled in biology and mathematics. His high school IQ was 157, a very high rating according to Mr. Bobrowsky, who said 'Genius is 160 and above.'

Decedent rendered services in and about the household, keeping his own room clean, vacuum cleaning all around, fixing 'electrical things,' venetian blinds and the like, going to the store and performing other chores. In addition, he did summer work carrying groceries at a grocery store and thereby earned 'a few dollars,' with which he bought something for his mother. Plaintiff provided his food and clothing and gave him $4 weekly for his school lunch and carfare.

We now consider, in the order presented, the five points advanced by defendant for reversal of the judgment.

I.

Defendant's first contention is that the trial court erred in removing from the jury's consideration its pleaded defense of contributory negligence. We note In limine a procedural deficiency in defendant's legal position as to this claim of error.

The trial record shows the following. At the close of all the evidence, plaintiff moved to strike the defense of contributory negligence. Without expressly stating that the motion was being granted, such a result was presumably intended by the trial court when it said in response to this motion, 'I shall not charge contributory negligence.' When this...