Schettino, Hall and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is taken from a County Court, Law Division, judgment entered on a jury's verdict of no cause of action and from a denial of a motion for a new trial.
On November 23, 1954, plaintiff was an invited guest at defendant's "pre-opening" party at defendant's new ice skating rink. Shortly after 9 P.M. William Rediker, one of the defendant's officers, told plaintiff that there would be an ice skating show later stating, "Well, we can't do it now because the ice isn't ready." He pointed to and showed plaintiff a man who was spraying water with a hose up and down the rink, slowly, apparently to make the ice. About 15 to 20 minutes later Joseph Rediker, another of defendant's officers, came up to the plaintiff and a group of about eight to ten guests and said, "If any of you would like to go out skating, go ahead out on the rink and you go over to the booth over there and they will give you skates." One of the group asked: "Joe, is it ready for skating?" Mr. Rediker said, "Oh, sure it is ready. See, my wife is out there and my children are out there."
Plaintiff did not go onto the ice until one-half hour to one hour after William Rediker's statement that the ice was not ready, but it was after Joseph Rediker's assurances that the ice was ready. Plaintiff and a Mrs. Lee skated together cross-handed. They made about three circuits of the rink, skating for about ten minutes. Plaintiff testified to a slight difficulty in maintaining footing while making turns but since they were skating slowly they did not have much trouble. While on the straightaway portion of the rink, Mrs. Lee fell, and plaintiff, to avoid "cutting her to ribbons," swung to the left and his skates went out from under him in a sideways direction causing him to fall and injure himself. He stated that there was no gripping of the skates to the ice when he made the left turn.
Plaintiff submitted in evidence the depositions of an out-of-state expert on the designing and engineering of ice-skating rinks and recreational facilities. The witness stated that he had supervised the construction of defendant's ice skating rink. With reference to the night in question he stated that the rink was not actually completed; that there was various work to be performed by painters, carpenters, other various trades in the actual readying of the rink for the official opening, which was not even completed after the public opening; that mechanically, as to the refrigeration equipment, the installation was complete; and that although they were making ice on the night of the accident, they had not completely finished making ice because of the various technical difficulties which caused them to be behind the schedule in the sense of not being absolutely and completely finished in this work. He also stated that on the day in question, November 23, they sprayed water on the ice by means of a hose, that the spraying went on in the early morning, during the entire day, and not only up to the time of the party but as well during the party. He stated: "To the best of my knowledge, the rink was still being worked upon by myself and other employees of the Casino who had been hired to attend the ice. We were constantly spraying as we were more or less looking for a deadline of the following night, not particularly worrying about the so-called press party."
When asked what was the normal thickness of the layer of ice that should be carried over defendant's ice rink cement platform, he answered that where the general public is admitted for skating, the required thickness would be at least a minimum of one inch and preferably an inch to an inch and a quarter to an inch and a half. He stated that the ice was half an inch to three-quarters of an inch thick on the floor during the so-called party; that that thickness was less than the required normal amount. Moreover, because the concrete and the ice on the cement floor of the rink were extremely cold, the ice became extremely hard. Additionally, because they were trying to let the ice absorb
as much water as possible to get the desired required thickness, the ice was much harder than it would be under public skating circumstances. He explained this as follows:
"* * * When ice is extremely hard, it is harder than it would normally be used for public skating, it is extremely brittle and can be broken and holes put in the ice under circumstances that wouldn't ordinarily happen if the ice was warmer. This particular night in question there were holes in the ice due to the facts I have just mentioned. This due to the fact that there were people skating on the ice who had been invited to the opening."
In his opinion the ice was not in safe condition for skaters of ordinary ability. He explained the basis of his opinion that the ice would be hazardous for an ordinary skater as follows:
"The ice being held at a colder temperature than would ordinarily be held for skating, public skating, would make the ice extremely hard and brittle so that when the person, a person who is not extremely agile or proficient, who had sufficient skating ability to realize the fact that the ice is extremely hard, would consequently cause holes to appear in the ice or chips of ice to crack out due to the fact that as they stroke they push on one foot and the action of the weight would cause a crack or a chip or something to appear on the ice because of its colder temperature."
As we read the rest of his testimony -- although admittedly at times confusing and contradictory -- the jury could have found from its totality that defendant had invited persons who it knew were ordinary skaters to use an unsafe ice skating rink, but there would still remain the question of whether any such negligence of defendant was the proximate cause of plaintiff's fall, there being no testimony of any holes, cracks or chips in the ice at the location of plaintiff's fall.
Defendant rested at the close of plaintiff's case without making either a motion for involuntary dismissal (R.R. 4:42-2(b)) or for judgment of dismissal at the close of the case (R.R. 4:51). At oral argument respondent's counsel stated that he did not do either because he ...