Decided: January 18, 1935.
ELIZABETH SPITZKOPF, PLAINTIFF-APPELLANT,
EDWARD T. MITCHELL, DEFENDANT-RESPONDENT
On plaintiff's appeal from the Monmouth Common Pleas Court.
For the appellant, Theodore J. Labrecque and John J. Quinn.
For the respondent, J. Victor Carton.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
[114 NJL Page 160]
The opinion of the court was delivered by
PARKER, J. The appeal is from a judgment of nonsuit. The defendant-respondent was operating an indoor swimming pool and the plaintiff and her intended husband bought tickets entitling them to the privileges of the pool, and after donning their bathing clothes, entered the water and while they were swimming around in the pool some person, apparently not named in the case, who was diving from what was called the high diving board, executed a dive in such manner that instead of going straight forward from the end of the diving board, he went in a diagonal direction and struck the plaintiff in the head, inflicting serious damage from which she suffered for some time.
The suit is not against the diver, but against the proprietor of the pool, apparently on the theory that he was negligent,
[114 NJL Page 161]
either personally or through his servants, for failure to employ servants and properly supervise them, in seeing to it that no such accident as that shown by the evidence should occur. The trial judge in awarding a nonsuit said that he could not conceive of any possible precaution that the defendant below could have taken whereby he could properly control the actions of any one after he got on the spring board. We think that this was a correct disposition of the matter. It seems clear that everyone knew the diving board was in use, or likely to be in use, and, indeed, the plaintiff, herself, testified that she was watching out generally for divers off the high board. There was no evidence in the case to indicate that any diagonal diving had ever previously taken place or that it was a normal thing to do. If it had been shown to be a frequent occurrence and that the defendant knew or should have known that fact and the danger involved, it might be that he would be charged with the duty of care to provide against it as, for example, in Alcott v. Public Service Corp., 78 N.J.L. 482; and particularly in Connolly v. Palisades, &c., Co., 11 N.J. Mis. R. 841, affirmed, 112 N.J.L. 502, but nothing of this kind was in the case before us, and we have merely the totally unexpected vagary of a fellow patron of the pool who succeeded in injuring another patron thereby.
The judgment will be affirmed.