Pona v. Boulevard Arena, A--199

• Decision Date: 15 April 1955
• Docket Number: No. A--199,A--199
• Citation: 35 N.J.Super. 148,113 A.2d 529
• Parties: Frances PONA, an Infant by her guardian ad litem, Frances Pona, and Frances Pona, individually, Plaintiffs-Respondents, v. BOULEVARD ARENA, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 148

35 N.J.Super. 148

113 A.2d 529

Frances PONA, an Infant by her guardian ad litem, Frances Pona, and Frances Pona, individually, Plaintiffs-Respondents, v. BOULEVARD ARENA, Defendant-Appellant.

No. A--199.

Superior Court of New Jersey Appellate Division.

Argued March 21, 1955.

Decided April 15, 1955.

Sam Weiss, Perth Amboy, for defendant-appellant (Jacobson & Winter, Perth Amboy, attorneys).

Elmer J. Bennett, Jersey City, for plaintiffs-respondents (Carpenter, Gilmour & Dwyer, Jersey City, attorneys; James P. Beggans, Jersey City, of counsel; Laurence Reich, Jersey City, on the brief).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

This is an appeal by the defendant from a judgment for the plaintiffs entered on a jury verdict in a tort action.

About 2:30 P.M. on February 8, 1953 the plaintiff Frances Pona, a high-school girl of 14, with three other girls, paid the admission fee and was admitted to the indoor roller-skating rink owned and operated by the defendant in Bayonne, New Jersey. The actual skating rink is surrounded by an iron railing with a baseboard eight to ten inches high, in which railing there are six openings through which patrons enter and leave the skating floor. Along the walls are benches, and the area between the walls and the iron railing, about nine feet in width, serves as an aisle or passageway from the back to the front of the building where there is a refreshment stand.

The plaintiff estimated that there were about 200 skaters at the rink that afternoon. About 4 o'clock she was leaving the skating area to go and rest on one of the benches. She slowly skated through one of the exists and had gone about three feet toward the bench when a paper cup caught in a wheel of her left skate, causing her to fall and sustain injuries to her ankle and foot.

The defendant developed on cross-examination of the plaintiff that at least half an hour before the accident, she had noticed wrappers and paper cups in the area between the rink and the benches, that she knew it was dangerous to skate in that area, but that she did not report the littered condition to the defendant. In response to a question as to why she used that particular exit when she knew the litter on the floor made the area dangerous, she replied: 'Because that was the first exit I came to, and I was tired. I wanted to sit down.'

There was also testimony that a skating number had just ended when the plaintiff went through the exit; that after every number there is a 'clear the floor' signal upon which all skaters are required to leave the floor; that on the particular 'clear the floor' signal when the plaintiff went through the exit some 200 skaters were leaving by various exits, perhaps 50 by the exit the plaintiff used, about 15 or 20 of whom were behind her.

One of the girls who came to the rink with the plaintiff testified that she had used all six exits and that there was a similar accumulation of paper wrappers and cups along both aisles.

The defendant was charged with negligence in the maintenance of the premises and in failing to provide suitable and sufficient receptacles for debris. The defendant denied the charges and asserted that the plaintiff had assumed the risk and was guilty of contributory negligence. At the trial, the defendant's motion for dismissal of the plaintiff's suit was denied and the issues were submitted to the jury which returned verdicts for the plaintiffs. The defendant moved for a new trial on the above grounds and also on the ground that the verdict was clearly against the weight of the evidence, the result of passion, prejudice and sympathy, and excessive in amount. The court denied the motion and this appeal ensued. The defendant now argues that the court erred in denying its motion for involuntary dismissal and in its charge to the jury.

The operator of a skating-rink is under a duty to exercise ordinary care to keep and maintain the premises reasonably safe and suitable for its intended purpose, including the approaches, aisles and floors. Griffin v. DeGeeter, 132 N.J.L. 381, 40 A.2d 579 (E. & A.1945); Clayton v. New Dreamland Roller Skating Rink, Inc., 14 N.J.Super. 390, 82 A.2d 458 (App.Div.1951); Gaffney v. America on Wheels, 16 N.J.Super. 484, 85 A.2d 1 (App.Div.1951).

On this appeal, the defendant's negligence is assumed and is not argued. The essential question is whether the Court erred in submitting the issues of assumption of risk and contributory negligence to the jury.

The doctrine of assumption of risk has a dual nature. In one aspect it is contractual, and an injured person is held to have assumed the hazards normally attendant upon the sport or amusement in which he participates. Gardner v. G. Howard Mitchell, Inc., 107 N.J.L. 311, 153 A. 607 (E. & A.1931); Young v. Ross, 127 N.J.L. 211, 21 A.2d 762 (E. & A.1941).

'He makes the choice at his own risk and is taken to consent that the defendant shall be relieved of responsibility. The legal position is then that the defendant is under no duty to protect the plaintiff, who may be acting quite reasonably, and it is immaterial whether he has exercised proper caution.' Prosser on Torts, § 51, p. 377.

The risk, however, does not extend to dangers not normally attendant upon the amusement or sport. Griffin v. DeGeeter, supra. In its other aspect, assumption of risk is so closely identified with contributory negligence that a practical distinction is difficult when considered in relation to the facts in a particular case. Contributory negligence implies the motion of some fault or breach of duty by the defendant which would sustain an action by the plaintiff but for the concurrence of his contributory negligence. The concept is an inseparable companion to that of primary negligence. The plaintiff may not, however, recover, not because the defendant owes him no duty, but because his own conduct precludes him from prevailing. Freschi v. Mason, 108 N.J.L. 272, 156 A. 758 (E. & A.1931); Prosser on Torts, § 51, p. 217.

The tendency is to treat assumption of risk in its second sense and contributory negligence as convertible terms, so that they are now virtually identical concepts. Harenburg v. August, 119 N.J.L. 83, 194 A. 152 (E. & A.1937); White v. Ellison Realty Corp., 5 N.J. 228, 74 A.2d 401, 19 A.L.R.2d 264 (1950); Scheirek v. Izsa, 26 N.J.Super. 68, 97 A.2d 167 (App.Div.1953); Taneian v. Meghrigian, 15 N.J. 267, 104 A.2d 689 (1954); 1 Stevenson, Negligence in the Atlantic States, § 122, p. 217.

It is well settled that a dismissal by the court on the ground of assumption of risk or contributory negligence may only be entered in the clearest case where a contrary hypothesis is not fairly admissible. Battaglia v. Norton, 16 N.J. 171, 108 A.2d 1 (1954). The elements 'must be of such a prominent and decisive character as to leave no room for a difference of opinion thereof by reasonable minds.' Shappell v. Apex Express, Inc.,131 N.J.L. 583, 37 A.2d 849, 852 (E. & A.1944). The facts must appear clearly and convincingly, or as the necessary and exclusive inferences to be drawn by all reasonable men in the exercise of a fair and impartial judgment; otherwise, the question is for the jury. Bacak v. Hogya, 4 N.J. 417, 73 A.2d 167 (1950).

The plaintiff should be held to the standard of care and caution required to be exercised by a girl of similar age, judgment, experience and environment. Hellstern v. Smelowitz, 17 N.J.Super. 366, 86 A.2d 265 (App.Div.1952); Dillman v. Mitchell, 13 N.J. 412, 99 A.2d 809 (1953); Pangborn v. Central R.R. Co. of N.J., 18 N.J. 84, 112 A.2d 705 (1955).

On the issue of contractual assumption of risk, the plaintiff voluntarily assumed the ordinary risks incidental to roller-skating upon the rink and we need not enumerate the happenings which might come within this category. Here, the fall did not occur while the plaintiff was engaged in the sport of skating, nor on the skating area. Therefore, the issue of assumption of risk in its contractual sense, or as a risk of the game, was not involved. See Griffin v. DeGeeter, supra.

Regarding the issue of contributory negligence or of assumption of risk in that sense, a question of fact existed as to whether the plaintiff exercised the care expected of a girl of similar age and experience--whether one similarly circumstanced would have incurred the risk which her conduct involved. Solomon v. Finer, 115 N.J.L. 404, 180 A. 567 (Sup.Ct.1935); Pangborn v. Central R.R. Co. of N.J., supra.

As noted above, when the plaintiff left the skating floor, she was in a crowd of some 50 skaters, all of whom were then leaving the floor by the same exit because of an 'all clear' signal at the end of a skating number. There were other skaters...