Hill v. Merrick

• Decision Date: 17 April 1934
• Parties: HILL v. MERRICK.
• Court: Oregon Supreme Court

31 P.2d 663

147 Or. 244

HILL v. MERRICK.

Supreme Court of Oregon

April 17, 1934

Department No. 2.

Appeal from Circuit Court, Jackson County; H. D. Norton, Judge.

Action by Lois Hill, a minor, by John Hill, her guardian ad litem against Stella J. Merrick, doing business under the firm name and style of Merrick's Motor Inn. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

This is an action for damages for personal injuries. The cause was tried to the court and jury and a verdict for the sum of $1,106 was rendered in favor of the plaintiff. From a consequent judgment, defendant appeals.

The complaint alleges, in addition to the formal allegations, in substance, that on June 25, 1931, the defendant was operating for hire a public swimming pool at Medford, Or., under the name and style of "Merrick's Motor Inn"; that the defendant, in the operation of such pool, invited children generally and the public generally to use such pool for hire, and sold tickets to minors, entitling them to use such pool for amusement purposes; that the pool was equipped by defendant with a diving tower or high dive, from which said invitees were allowed to dive; that Lois Hill, a minor on June 25, 1931, then under 16 years of age, was invited to so use the pool and said diving tower or high dive, and defendant sold to her, for hire, such facilities for swimming and diving, and at said time there was a large number of other children swimming and diving in said pool; that the said Lois Hill ascended the aforesaid high dive for the purpose of diving therefrom into said pool; that immediately after she ascended said high dive and while she was preparing to dive into the pool, a group of children ascended the high dive and played thereon, slapping each other and pushing and playing in a dangerous manner; that while Lois Hill was standing on said dive, preparing to dive into said pool, one of said children, who had ascended the high dive, pushed the said Lois Hill off from the high dive, causing her to fall therefrom onto the cement edge of the pool and then into the water of said pool and sustain the injuries hereinafter described; that the defendant had for some time prior to this incident, and after Lois Hill had ascended said high dive allowed the minor children to play on the high dive in a highly dangerous and negligent manner without instructing said children to desist from so doing; that the accident happened under the observation of the employees of the defendant, who were observing and watching the children playing on the high dive; that she fell with great force on the hard pavement around said pool, which caused her to lose consciousness and suffer greatly from shock and she received lacerations on her forehead and body, including a severe laceration on the leg, all of which caused her severe headaches and pains; that she thereafter suffered from fever causing her to become toxic and suffer from vomiting spells and her leg became infected and badly swollen, causing her great suffering during the healing of the abscessed cavity; that ever since she suffers from severe headaches and sharp pains; that she has incurred expenses on account of said accident for hospital care and doctor's care in the amount of $277, and has been damaged in the additional sum of $2,000; that it was the duty of defendant in the operation of said pool to use all reasonable care to prevent the invitee children from carelessly playing on the aforementioned high dive, and the defendant could have, by the exercise of such reasonable care, prevented said children from ascending and playing on said high dive in large numbers at one and the same time; that notwithstanding her duty to plaintiff, Lois Hill, the defendant permitted such place of amusement to be so operated that the same was dangerous, and it was the duty of defendant to have prevented the invitee minor children from using said place of amusement so as to endanger plaintiff.

The defendant interposed a motion to strike and make more definite and certain portions of the complaint. The motions were submitted without argument and denied. The defendant interposed a demurrer to the complaint for the reason that it does not state facts sufficient to constitute a cause of action. Upon the same being overruled, the defendant answered, denying any negligence on her part and denying the gist of the complaint and affirmatively alleged that the plaintiff was a good swimmer and well acquainted with the diving tower and platform and knew the dangers and hazards in participating in the use of said diving platform and that she assumed the risk connected therewith, and for a further and separate answer alleged that it was the duty of defendant to operate the swimming pool in a manner in which reasonably prudent persons would have done under similar circumstances, and to anticipate and guard against such contingencies as reasonably prudent persons would have in operating a swimming pool; that if plaintiff, Lois Hill, was injured, as in her complaint alleged, it was by and through the independent, intervening acts of a cause over which this defendant had no control, nor was it under any duty to control; and that in so far as the defendant is concerned, the accident was unavoidable and without negligence on the part of this defendant. The reply put in issue the new matter of the answer.

Harley W. Allen, of Portland (Sheppard & Phillips, of Portland, on the brief), for appellant.

J. F. Fliegel, of Medford (O. C. Boggs and O. H. Bengtson, both of Medford, on the brief), for respondent.

It is contended by defendant that allegations of duty in terms and allegations of what could have been done are conclusions of law, are irrelevant, and should have been stricken on motion. It is stated in 49 C.J. 55, § 28, as follows: "The general rule is that an allegation of duty in terms, unaccompanied by a statement of the facts showing the existence of the duty, is a mere conclusion of law, unless there is a relation set forth from which the law raises the duty; and the same rule applies to a general allegation of the performance of a duty, and of a violation of duty, although it has been held that, where the facts showing the existence of a duty are set out, a breach of such duty may be averred by way of conclusion."

Applying this rule to the case at bar, the facts in relation to the management of the pool are set forth.

We take it to be the law that although the proprietor of a swimming pool is not an insurer of the safety of patrons, he is required to use reasonable care in furnishing reasonably safe conditions, and if they are not reasonably safe for any reason, on failure to give notice of such condition and warn patrons, that the proprietor is liable for any resulting injury. Johnson v. Hot Springs Land & Imp. Co., 76 Or. 333, 148 P. 1137, L. R. A. 1915F, 689.

It is plainly alleged that by permitting children to play tag on the steps and platform...