Eastwood, Bigelow and Schettino. The opinion of the court was delivered by Eastwood, J.A.D.
This is an appeal from a judgment of dismissal entered by the Essex County Court, Law Division, at the end of the plaintiffs' case, on motion of the defendants in an action for damages for injuries sustained by Alice Clayton arising out of a fall in the defendants' premises.
On October 9, 1948, plaintiff, Alice Clayton, and her husband, entered defendants' premises as paying patrons for the
purpose of roller skating. While skating, Mrs. Clayton fell, allegedly caused by chewing gum negligently permitted to remain on the main skating rink floor. She sustained a fracture of her left arm and was taken to the first aid room of defendants' premises where one Victor J. Brown, an officer of the defendant-corporation, attempted to set Mrs. Clayton's arm.
Plaintiff testified that there was a normal Saturday night crowd; that she was an expert skater and skated continuously for about two hours prior to her fall. During that time, she noticed nothing unusual about the floor, other than chewing gum wrappers flying around. Plaintiff's husband testified that the skating floor was dirty; that he directed the attention of his wife and friends to dirt spots on the floor, but did not observe the floor at the place of the accident.
After her fall, Mrs. Clayton was assisted to her feet by her husband and a guard and skated off the main floor, through the observation area in which there was a refreshment stand, to the first aid room. Mr. Brown was summoned and upon arrival proceeded to administer first aid to Mrs. Clayton. He manipulated plaintiff's fractured arm and applied traction to it and when asked whether or not he was a doctor, Brown replied in the negative, stating that as a prize fight manager he had experience in such matters. A splint was applied to Mrs. Clayton's arm by Brown, and she was taken to Fitkin Hospital where efforts were made to set her arm with the aid of fluoroscopic and X-ray examination. Efforts to reduce the fracture proving insufficient, bone grafts had to be performed in addition to the use of plates and screws.
In the plaintiffs' complaint they charge the defendants with (1) negligence in the operation and conduct of their premises; that (2) the defendant, Victor J. Brown, for and on behalf of himself and as servant, agent and employee of the defendant-corporation, unlawfully attempted to set the left arm of the plaintiff and acted in a capacity for which he had no skill, causing an aggravation of the injury of the
plaintiff, Alice Clayton; that (3) the defendant, Victor J. Brown, individually, and as servant, agent and employee of the defendant-corporation, committed an assault and battery upon the plaintiff, Alice Clayton; that (4) the defendant, Victor J. Brown, had no medical experience or capacity to treat the plaintiff for her injuries and although she requested the defendant to cease any further treatment, Brown, acting individually and as an employee of the defendant-corporation, maliciously continued to mistreat the plaintiff, Alice Clayton, causing the injuries for which she brought her action; and (5), the plaintiff, James F. Clayton, as husband of Alice Clayton, sued for his damages per quod.
The plaintiffs contend that the trial court erred in dismissing the complaint, in that jury questions were presented as to the defendants' negligence in the maintenance and operation of the roller skating rink; that the acts of defendant, Brown, were acts of negligence or assault and battery; that the trial court erroneously decided that plaintiff assumed the risks involved in the enterprise in which she was engaged; and improperly refused to allow Mrs. Clayton to testify as an expert as to proper standards of care for roller skating rinks of a size comparable to the one in question; and erroneously refused to allow the hypothetical question propounded to plaintiff's doctor.
As a general principle the proprietor of an amusement park is not an insurer of the safety of patrons and is not bound to protect them from such obvious risks as are necessarily incidental to the use of the premises or its amusement devices. The proprietor is, however, bound to exercise reasonable care and to render the premises reasonably safe and fit for the use intended. When the condition complained of results from the wear and tear incident to the normal use of the amusement or to causes that originate in the wrongful conduct of strangers, the operator must be shown to have had ...