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Bunicontra v. Duval

Decided: January 20, 1959.

MARIANNA BUNICONTRA, ADMINISTRATRIX AD PROSEQUENDUM OF DIULIO MARTINO, DECEASED, PLAINTIFF-APPELLANT,
v.
FRANCIS A. DUVAL, DEFENDANT-RESPONDENT



Price, Schettino and Hall. The opinion of the court was delivered by Price, S.j.a.d.

Price

Plaintiff instituted this action in the county court, law division, as administratrix ad prosequendum to recover damages for the death of her husband Diulio Martino, who drowned while a patron of defendant on the latter's premises operated by him commercially as a recreational area. Martino's death was alleged by plaintiff to have been caused by defendant's negligence. At the conclusion of the presentation of plaintiff's evidence on liability the trial court granted defendant's motion for involuntary dismissal, R.R. 4:42-2(b). Plaintiff appeals from the judgment entered thereon.

In considering the foregoing motion the trial court was obliged to accept as true all evidence supporting the position of plaintiff and to accord to her the benefit of all inferences in her favor which might "logically and legitimately be drawn therefrom." Bergquist v. Penterman , 46 N.J. Super. 74, 82 (App. Div. 1957); DeRienzo v. Morristown Airport Corp. , 28 N.J. 231, 239 (1958).

So considered, the evidence produced by plaintiff revealed that on July 9, 1955 defendant was the owner of property at Pompton Lake in Wayne Township which he operated for boating, swimming and picnicking. The area was equipped with a diving board, raft and a dock for boats. A fee of 25 cents was charged by defendant for admission

to the property. The fee included compensation for the use of the swimming facilities. The premises were open to the public.

The lake front comprised three general areas. The bathing beach area, located in a cove, extended from 90 to 120 feet along the shore of the lake. The water was shallow near the shore line and increased gradually in depth. To the left of the beach was the boating area, bordered by a concrete wall or cribbing to which boats could be tied. Estimates of the width of this area along the shore varied from 75 to 120 feet. To the left of the boat area was a deeper swimming area, equipped with a diving board which projected from the shore out over deep water. The depth of the water in this area increased rapidly from the shore line to a total of about 15 feet at a distance of 15 to 20 feet from the shore. The raft was located in deep water about 50 feet from the diving board.

An elevated chair or stand, provided for the use of the only lifeguard employed by defendant, was located on the beach near the boundary between the beach and boating areas. It faced the lake, but at an angle with the shore line. It was so placed that when the lifeguard was using the chair his view, encompassing the bathing beach area, was approximately 30 degrees to his right and away from the diving area. The chair's "position" was "selected" by defendant.

Defendant's lifeguard testified that, while sitting in the chair, if he turned his head to the left, he could see the diving area but some trees located along the shore bordering on the intervening boating area partially interfered with his view in that direction; that he had to bend forward and backward in order to scan all of that water area. He was interrogated with reference to his duties as outlined to him by defendant as follows:

"Q. Will you describe what your duties were with Mr. Duval or working with him, with regard to what places you were supposed to watch?

A. I was supposed to watch the beach area. At times I would go into the boating area; or wherever somebody were drowning, or wherever somebody needed help.

Q. How about the diving-board area, were you guarding that as you sat in that chair? A. I would glance down there to see if there was any trouble. I didn't walk ...


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