Hanson v. Christensen

• Decision Date: 28 October 1966
• Docket Number: 40173,Nos. 40101,s. 40101
• Citation: 145 N.W.2d 868,275 Minn. 204
• Parties: Richard HANSON, a minor by Hazel M. Hanson, his mother and natural guardian, and as Special Admrx. of Estate of Arthur Hanson, deceased, Respondents, v. C. J. CHRISTENSEN dba The Harbor Resort, Appellant.
• Court: Minnesota Supreme Court

Page 868

145 N.W.2d 868

275 Minn. 204

Richard HANSON, a minor by Hazel M. Hanson, his mother and natural guardian, and as Special Admrx. of Estate of Arthur Hanson, deceased Respondents, v. C. J. CHRISTENSEN dba The Harbor Resort, Appellant.

Nos. 40101, 40173.

Supreme Court of Minnesota.

Oct. 28, 1966.

Syllabus by the Court

1. While defendant was not an insurer of the safety of plaintiff, he was nevertheless furnishing and maintaining his swimming and diving facilities in a manner for which they were apparently designed and to which they had been adapted, including their use by resort patrons, and therefore had a duty to exercise reasonable care.

2. A patron of a public swimming pool operated for a profit has a right to rely upon the assumption that the proprietor has discharged his duty and provided a place that is reasonably safe for the use intended. As a patron he is not required to make a critical inspection to insure himself that it is safe. He has, however, the duty to exercise ordinary care to avoid known or appreciated dangers and also has the duty to discover conditions of danger which a prudent person, of his age and experience 3. It is up to the owner and occupier of the resort to acquaint himself with and to have knowledge of the condition of his premises, thereby being able to warn his invitees or patrons of any dangers known to him which are not open and obvious. This duty he owes to all his patrons.

if a minor, in the exercise of ordinary care under the attending circumstances might reasonably discover.

4. Operators of public places of amusement or resorts for a profit must exercise a high degree of care for the safety of their patrons. The standard of care is reasonable care, but reasonable care in this connection calls for a high degree of care--a care commensurate with the risks involved. The law requires that the operator use care and active vigilance in protecting his patrons against perils.

5. One who assembles a large number of people upon his premises for the purpose of financial gain assumes responsibility for using reasonable care to protect them from injuries from causes reasonably to be anticipated. Whether the precautions taken are sufficient is ordinarily a question for a jury to determine.

6. The duty of inspection and knowledge of any observable condition of a facility furnished by the proprietor for the use of the paying public rests upon the proprietor himself and not upon the patron or invitee. This duty is not merely passive. It is an active obligation to guard against the very risk which the evidence shows might reasonably have been anticipated. That duty is therefore a continuing duty, which applies not only in the original installation of the equipment or the building of the facility, but continues throughout the entire time of the use of the premises.

7. Where subject matter of inquiry does not lie outside the range of common knowledge, whether expert testimony is admissible resides in sound discretion of trial court.

8. In the instant case, the decision of the trial court to submit the issues of negligence and contributory negligence to the jury is sustained by the record.

Strong, Tully & Bush, Minneapolis, for appellant.

W. R. Poseley, Minneapolis, Bernard Harroun, Minnetonka, for respondents.

OPINION

NELSON, Justice.

The present appeal involves an action for damages due to personal injuries brought by Hazel M. Hanson as mother and natural guardian of Richard Hanson, a minor, and as special administratrix of the estate of the minor's father, Arthur Hanson, deceased, against C. J. Christensen, d.b.a. The Harbor Resort. At a first trial of this action, the trial court at the close of plaintiffs' case directed a verdict for defendant. Subsequently the trial court granted plaintiffs' motion for a new trial. At the second trial, the jury returned separate verdicts in favor of Richard Hanson in the sum of $30,000, and of Hazel M. Hanson in the sum of $10,000. Defendant appeals from an order of the trial court denying his motion for judgment notwithstanding the verdicts or in the alternative for a new trial and from the judgments entered, seeking a reversal and entry of judgments in his favor or a new trial.

If all conflicts in the evidence are resolved in favor of the prevailing parties below, the facts appear as follows:

On September 5, 1960, plaintiff Richard Hanson, then 13 years old, together with his family went for a Labor Day picnic and some swimming to the 'Harbor Resort' located on the northeast end of Prior Lake in Glendale Township, Scott County, Minnesota. Defendant, C. J. Christensen, a man then 68 years of age, acquired in 1946 a 17-acre tract of land having between 300 and 400 feet of lake shore where he operated the Harbor Resort as picnic grounds furnished with about 100 picnic tables and a refreshment stand for the sale of pop, ice cream, and candies.

The lake shore had a natural sandy beach and in 1960 the Burnsville School District leased from defendant swimming accommodations for the school's summer recreation program which involved approximately 150 boys and girls. Robert Pates, head of the physical education department of the Burnsville School District, was in charge of the swimming program and informed defendant of certain requirements of the school pertaining to the facilities. These included furnishing a rope to mark out a shallow portion for nonswimmers and providing a floating dock to teach diving. Thus in the early summer of 1960, 2 stationary docks, each less than 3 feet wide, 70 to 80 feet apart and supported by cedar posts were extended from the shore 32 feet out into the lake. In completing this arrangement a rope with floats was stretched across the water at the end of the 2 docks. In the middle of the area and about 45 feet out from the lake shore, in 15 or more feet of water, defendant installed a floating platform complete with a diving board.

The water at the end of the stationary docks on the day in question was approximately 2 1/2 feet deep and appeared dirty and green. There were no signs on the premises pertaining to the use of the lake for swimming, the use of the docks, floats, or diving board, nor were there any signs prohibiting swimming to picnic patrons. The defendant's charge for the use of the picnic area was $1 per car irrespective of the number of occupants.

Defendant was fully aware that people using his picnic area also frequented the lake shore and made use of the stationary docks and the floating dock with its diving board. Apparently no efforts were made by defendant to prohibit the use of the sandy beach or to stop the swimming and diving activities of those admitted upon paying the fee.

At about 11 a.m. on September 5, 1960, plaintiff, his brother, Brian, and sister, Barbara, waded into the water from the shore and swam to the floating dock. They dove from the floating dock in all directions, using the diving board and platform for about an hour before returning to the beach for lunch. All testified that while diving they had experienced no difficulties and had never touched the bottom of the lake. The Hanson family stayed around their picnic table for about an hour after completing their lunch. Then Richard, discovering that his brother and sister had returned to the diving platform, ran down to the end of the stationary dock to the west, and dove into the lake at that point. The next thing Richard remembered was seeing bubbles and then being carried to the beach. Although the medical testimony has not been fully included in the record, it appears that plaintiff suffered a broken neck in his attempted dive.

The action brought by Hazel M. Hanson is limited to a claim for injuries which a parent may have for damages due to the expenditure for medical supplies and medical, hospital, and nursing services, together with the loss of services of the child to the parent, present and future, as applicable in cases of this nature. The trial court properly instructed the jury on this issue and made it clear to them that in the event the plaintiff minor is not entitled to recover, then his mother would not be entitled to recover on her claim.

The defendant contends that there was insufficient evidence to find defendant negligent and that plaintiff should have been found contributorily negligent as a matter of law. Defendant further contends that the testimony of Robert Pates, athletic director and swimming coach at the Burnsville School, relating to general rules of water safety should have been admitted. The questions involved are:

(1) Whether the trial court erred in submitting the question of the defendant's negligence to the jury (2) whether there was evidence from which the jury could properly find that the plaintiff, Richard Hanson, was not guilty of contributory negligence as a bar to his recovery,

(3) whether the trial court erred in refusing to permit the witness, Robert Pates, to testify as to general rules of diving as they pertain to depth of water, and

(4) whether the trial court erred in denying defendant's motion for judgment notwithstanding the verdict or in the alternative for a new trial.

1. It is undisputed that the beach and swimming facilities were designed for both swimming and diving. To this end the facilities attracted resort patrons including adults and children. We think it clear under the rules of law applicable to public resorts in this state that while defendant was not an insurer of the safety of plaintiff, he was nevertheless furnishing and maintaining his swimming and diving facilities in a manner for which they were apparently designed and to which they had been adapted, including their use by resort patrons, and had a duty to exercise reasonable care. While the standard of reasonable care remains the same, nevertheless, what constitutes its exercise necessarily varies with the situation, conditions, and attending circumstances in a given case.

2. There...