Raponotti v. Burnt-Mill Arms Inc.
| Decision Date | 25 January 1971 |
| Docket Number | BURNT-MILL |
| Citation | 113 N.J.Super. 173,273 A.2d 372 |
| Parties | Filomena C. RAPONOTTI, administratrix ad prosequendum of the Estate of Nicholas Raponotti, deceased, and Filomena C. Raponotti, general administratrix of the Estate of Nicholas Raponotti, deceased, Plaintiff-Appellant, v.ARMS INC., a New Jersey Corporation, and Paparone & Company, a New Jersey Corporation, jointly, severally and in the alternative, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Ira Rabkin, Camden, for appellant (Molotsky, Rabkin & Gross, Camden, attorneys).
Arthur Montano, Camden, for respondents (Kisselman, Devine, Deighan & Montano, Camden, attorneys).
Before Judges KILKENNY, HALPERN and LANE.
The opinion of the court was delivered by
HALPERN, J.A.D.
Plaintiff administratrix Ad prosequendum and general administratrix of the estate of Nicholas Raponotti, deceased, appeals from a judgment of no cause for action entered on a jury verdict in favor of defendant Burnt-Mill Arms, Inc. The suit sought to recover money damages for the death by drowning of plaintiff's husband in a swimming pool owned and operated by defendant. A consent judgment of dismissal, with prejudice, was entered in favor of defendant Paparone & Company.
The essential facts are undisputed and will be summarized for an understanding of the issues involved. In 1966 defendant built and was the owner of a 112-family garden apartment complex in Voorhees Township, Camden County, New Jersey. Dolores Tarricone was one of its tenants. As part of the recreational facilities furnished to all tenants, defendant had installed an outdoor swimming pool 24 feet wide at the deep end, 35 feet wide at the shallow end, and about 50 feet in length, with a maximum depth at one end of 6 feet 4 inches. The pool did not contain a diving board. It was completely enclosed by a wire fence, except for a gate opening leading to the pool. A small building, designated as a recreation hall, was located outside of the gate and was provided by defendant for the tenants and their guests to be used in conjunction with the pool. The pool was illuminated for night bathing with outdoor lights and underwater lights, and contained signs on or near the fence indicating the pool was 'private' and 'swim at your own risk.'
The written regulations promulgated by defendant pertaining to the use of the pool, which were delivered to all tenants, and with which we are concerned, provided that the pool would be open daily until 11 P.M., except for Fridays and Saturdays when it would remain open until midnight. Each tenant was permitted to bring a maximum of four guests without prior approval by defendant. On prior arrangement with defendant a tenant could bring an unlimited number of guests for a special pool party; on such occasions the pool facilities could be used until 2 A.M. The defendant knew it was customary for the tenants and their guests to use the recreation hall, bring their own food, liquor and other beverages.
Admittedly, defendant never furnished a lifeguard for the pool or any appliances for lifesaving resuscitation. No separate charge was imposed for the use of the pool and its facilities beyond the rent charged. The owner controlled and maintained the pool.
On August 11, 1966 Dolores Tarricone, having reserved the pool for a party in accordance with defendant's regulations, was hostess to about 30 adult guests, including plaintiff's decedent, Nicholas Raponotti. Decedent was in good health and was an average swimmer. He participated in the festivities; he ate, drank and swam. The testimony of those witnesses present that night who were called to testify indicated that no one was intoxicated. Although there were guests in and around the pool who spoke with decedent about five or ten minutes before his body was discovered in the deep end of the pool, no one saw him enter the pool and no one knew what happened to him.
One of the guests recovered decedent's body from the pool and for about one-half hour various guests attempted artificial respiration. One of the guests testified, without objection, that a nurse who was present examined decedent and detected a faint pulse; she then gave instructions on how to administer mouth-to-mouth resuscitation, which was also performed. An ambulance arrived within one-half hour after decedent's body was retrieved and oxygen was then administered. Decedent was dead on arrival at the hospital. An autopsy was performed. It is admitted that decedent died as the result of drowning and that he had .15% Alcohol in his blood.
The complaint charged defendant with negligence in the operation of the pool in failing to provide a lifeguard and appliances or equipment for lifesaving and resuscitation. The trial was on the issue of liability only. The court submitted the following three interrogatories to the jury:
INTERROGATORIES
---------------
No. of No. of
YES'ES NOES
------ ------
1. DO YOU FIND THAT THE
DEFENDANT BURNT MILL
ARMS, INC. WAS GUILTY
OF NEGLIGENCE IN FAILING
TO PROVIDE A LIFEGUARD
TO BE PRESENT DURING
THE PARTY? 2 10
2. IF YOUR ANSWER TO THE
ABOVE IS IN THE
AFFIRMATIVE BY A VOTE
OF 10 OR MORE, DO YOU
FIND THAT SUCH
NEGLIGENCE PROXIMATELY
CAUSED THE DEATH OF
DECEDENT
3. IF YOU FIND BY A VOTE
OF 10 OR MORE THAT
SUCH NEGLIGENCE
PROXIMATELY CAUSED THE
DEATH OF DECEDENT
THEN DO YOU FIND THAT
THE DECEDENT WAS
GUILTY OF CONTRIBUTORY
NEGLIGENCE WHICH
PROXIMATELY CONTRIBUTED
TO HIS DEATH
The jury answered the first interrogatory 'No' by a 10--2 vote, and did not answer the remaining interrogatories. The court then entered a judgment of no cause for action in defendant's favor. Plaintiff's motion for a new trial was denied, and this appeal followed.
The principal issue presented is whether the court erred in holding that the provisions of N.J.S.A. 26:4A--1 were inapplicable and in refusing to charge the jury in accordance therewith. The statute, which was enacted in 1946 but has never been directly construed in any reported opinion, provides:
Life-Saving Personnel and Appliances Required
Every person operating a swimming pool or public swimming place, directly or indirectly, for profit shall provide adequate trained personnel and proper appliances for life-saving and resuscitation at all times when the pool or place is open to the public.
The court held the statute inapplicable because it determined the pool involved here was a private pool as distinguished from a public pool. We have concluded the court placed too narrow a construction on the statute. Under the court's interpretation, the statute applied solely to operators of swimming pools or public swimming places who catered to the general public and made a separate monetary charge for the use of the facilities.
An inquiry into the objective of the Legislature is hazardous at best. Our function is to arrive at the legislative intent by considering the nature of the subject matter, giving the statutory words used their ordinary and primary meaning, and looking to the provisions of the whole law and not to a single sentence or member of a sentence in ascertaining its objective and policy. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); State v. Brown, 22 N.J. 405, 415, 126 A.2d 161 (1956); Kingsley v. Hawthorne Fabrics, Inc., 41 N.J. 521, 526, 197 A.2d 673 (1964); State v. Bander, 56 N.J. 196, 202, 265 A.2d 671 (1970). Viewed in that light, it becomes clear that the Legislature recognized the inherent danger to people who swim in pools or public swimming places where conceivably large numbers may congregate for that purpose. It sought to protect such people in situations where the owner, directly or indirectly, operated the venture for profit. It therefore required such operators to 'provide adequate trained personnel and proper appliances for life-saving and resuscitation' when the pool was in use. In construing the word 'public' as used iN N.J.S.A. 26:4A--1 it must be given a broad definition so as to include the people the Legislature intended to protect from dangers it considered inherent in this type of operation. As indicated in Askew v. Parker, 151 Cal.App.2d 759, 312 P.2d 342 (Cal.Ct.App.1957):
A pool may be public although all persons do not have a right to be admitted, and a pool may be public even though certain persons can be legally excluded from it. Whether a charge is made for admission is not necessarily a determining factor. (at 345)
In the instant case 112 tenants and their guests had the privilege of using the pool. While it was highly improbable that all the tenants would make use of it at the same time, it was very probable that a good number of them would do so during the hot summer weather.
It would be naive for us to hold that defendant's tenants were not charged for the use of the pool and its facilities; such compensation was reflected in the rent charged. This is what the Legislature contemplated when it spoke of operating a swimming pool directly 'or indirectly' for profit. The pool was part of defendant's over-all garden apartment operation from which its profits (or losses) were derived.
We agree with the views expressed in other jurisdictions that a swimming pool, for all practical purposes, may be a 'public pool' even though no separate fee is charged for its use by guests or members and the general public is excluded. See annotations in 48 A.L.R.2d 104 (1956) and 1 A.L.R.3d 963--968 (1965); Rovegno v. San Jose Knights of Columbus Hall Assoc., 108 Cal.App. 591, 291 P. 848 (D.Ct.App.1930) (); Tucker v. Dixon, 144 Colo. 79, 355 P.2d 79 (Sup.Ct.1960) (motel pool); Gordon v. Hotel Seville, Inc., 105 So.2d 175 (Fla.App.1958) , cert. den. ...
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