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McLaughlin v. Rova Farms Inc.

Decided: June 22, 1970.

LAWRENCE J. MCLAUGHLIN AND OLGA MCLAUGHLIN, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ROVA FARMS, INC., A NEW JERSEY CORPORATION, AND HERMAN SCHULZ, DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.

Francis

[56 NJ Page 293] Plaintiff Lawrence J. McLaughlin was seriously injured on July 25, 1965 when he dove from what was described as a diving platform into the water of a lake on recreation and resort premises owned and maintained by defendant Rova Farms, Inc. Thereafter he brought this suit against Farms and its general manager, defendant Herman Schulz, to recover damages for his personal injuries and consequent monetary losses. Plaintiff Olga McLaughlin, wife of Lawrence, joined in the action seeking a recovery for loss of his services, society and consortium. In support of their claim, plaintiffs alleged that the injuries suffered by Lawrence were caused either by defendants' willful and wanton misconduct

or negligence under the circumstances to be described hereafter. Over defendants' objection, the trial court submitted both issues, as well as the defensive claim of contributory negligence, to the jury for determination. Unanimous verdicts of $210,000 for Lawrence McLaughlin and of $15,000 for Olga McLaughlin were returned against both defendants.

On appeal the Appellate Division reversed in an unreported opinion holding that it was error to submit the issue of willful and wanton misconduct to the jury. We granted certification. 55 N.J. 162 (1969). For reasons to be stated, we have concluded that the trial court's action was correct and that plaintiffs' judgments should be reinstated.

I

For a number of years defendant Rova Farms, Inc. had operated and maintained a recreation resort in Jackson Township, New Jersey. The premises consisted of 654 acres at the time in question, and contained therein a restaurant, hotel, motel, snack bar, pavilion, picnic area, and lake. The public was invited to patronize the facilities and, upon entering the premises by car, there was a parking charge of one dollar. Payment of that fee carried with it the right to use the beach and the lake.

At one point in the swimming area there was a wooden structure from the end of which Lawrence McLaughlin dove into the water. It was variously referred to as a dock, pier, and diving platform. It began at the edge of the lake and extended 17'10" out over the water. The flooring was 5'10" wide and consisted of six thick planks or boards permanently affixed to an understructure. On each side there was a fence-like construction with top rails and spaced supporting uprights. It was built along the outside edge of the flooring and was nailed to the sides thereof. The top rails appeared to be about four feet above the walking surface. A significant factor from the standpoint of this case [56 NJ Page 295] is that the flooring planks extended about six feet farther out over the water beyond the end of the siderails. Thus, looking at the structure from either side (as the photographs in evidence clearly show), a person would see a wooden projection without sides extending out over the water. Undoubtedly the extension was the reason why defendant Schulz referred to the facility as "the area diving board." There was no spring to the projection, however, and probably for that reason plaintiffs' well qualified expert called it a "diving platform." The end of the platform was four feet above the water. At this point underneath the platform and in the immediate vicinity, the depth of the water was 3 to 4 feet. There were no steps or ladder leading from the end of the planking, or from either side of the structure itself, down into the water. Nor was there any sign or warning anywhere on the platform or on shore notifying an intending diver of the shallowness of the water. On land a short distance away and almost in a line with this wooden structure there was a sign bearing the legend "Swimming and diving at your own risk." Much emphasis was placed on this sign by defendants at the trial. However, in our view, it cannot be deemed a prohibition against diving from the projecting platform. Rather its general admonitory nature would appear to make it relate to the entire lake, including a second wooden structure at another point on the lake shore which defendants allege was an adult diving area. That structure, which plaintiffs characterize as a "dock," runs parallel with the water edge for some distance, extending only a relatively few feet over the water. Its three sides which were over the water were fenced for their full width and length except for a gate-like opening near the side fronting on the water. There was no plank or platform projection beyond the fencing at the point of the opening like the one on the "diving platform." There was no sign indicating that this more dock-like structure was set aside for diving or that diving was limited to that place; nor, on the other hand, was there anything to inform a patron that it would

be improper or unreasonable or dangerous to diver from it. In any event, defendant Schulz's 16 year old son, who was acting as temporary lifeguard on the day of Lawrence McLaughlin's accident, in explaining the reason for the sign "Swimming and diving at your own risk," said it was "to protect the interest of the corporation." In our view it was reasonably open for the jury to find that the sign did not prohibit but rather authorized diving and warranted belief by a patron that diving from the diving platform could be engaged in, and that it would be attended only by the risks ordinarily inherent in such sporting activity.

Defendant Herman Schulz, the Farms' manager, who had general supervision over all the resort operations, testified by pretrial deposition that he was a carpenter and builder. In the early part of May 1965 he repaired the wooden structure which contained the diving platform (what he called "the area diving board") so as to put it into condition for the forthcoming season. It was provided for the use of children and guests. He knew the water under the platform was 3 to 4 feet deep. At one side or end of the lake there was a dam which could be manipulated to permit the entry of more water to increase the depth of the lake. Despite such knowledge, prior to McLaughlin's accident no effort was made to raise the water level above the 3 to 4 foot depth. Schulz said that if the water was low he would not allow people to dive from the platform. He conceded also that no one told an intending diver of the depth of the water under the projecting planks, and that no notice was placed on the platform or elsewhere on which the depth was noted.

Defendants attempted to establish that the diving platform was either not for diving or for children's diving or jumping into the water. But there was no notice posted or given to that effect. Moreover, there was a roped-off area some distance away which was set aside for children. It was marked by a sign saying "Bathing area for children under 12 years. Parents must supervise." That was the only notice pertaining to children's use of the lake.

Leo Schulz, the 16 year old temporary lifeguard who was on duty on the day of McLaughlin's accident, testified that the platform was not for diving. But he had observed people using it at times for that purpose. On occasions he would station himself on or near the structure and tell bathers not to dive. When he was sitting on the lifeguard stand some distance away, he would blow his whistle if he saw anyone about to do so. He knew the water was 3 to 4 feet deep at the end of the platform, but he never posted a sign or advised anyone of that fact.

A conflict developed as to the physical appearance of the diving platform at the time of the accident. Schulz testified that in early May 1965, before the season began, he painted "no diving" in large white letters on the end of the platform. While he was testifying, he identified three photographs as portraying the platform and the children's bathing area on July 25, 1965. One of them showed only the end of the platform with "no diving" painted thereon in sizeable clean white letters. Schulz did not know when the pictures were taken or who took them. (The person who did take them was not produced by the defense.) It seems obvious from looking at two of them, however, that they were not taken during the summer season of the year. Schulz himself noted on cross-examination the barren appearance of the many trees and the foliage in the lake area in the background and conceded that the pictures must have been taken in the fall. By way of contrast, four photographs introduced by plaintiffs to show conditions in July clearly portray the trees and foliage in full bloom. One of these four pictures, all of which apparently were taken at the same time, shows a close-up of the diving platform. The words "no diving" do not appear thereon. This picture, which was introduced by plaintiffs in rebuttal, was received in evidence over defendants' objection. Its admissibility is likewise questioned on this appeal. We find no abuse of the trial court's discretion in allowing its introduction. Moreover, McLaughlin, whose deposition was read at the trial,

testified that he saw no such sign on the platform before he dove from it. It may be noted also that defendants called Nikola Krasnoschokow as a witness in their behalf. He had visited the Farms for the religious holiday for eight years and had arrived from Canada on July 23, two days before the accident. On July 25 he was sitting on a bench near the water and the diving platform when McLaughlin dove from the platform. Krasnoschokow testified he had walked on the "diving board many times." Yet he did not say he ever saw the words "no diving" painted at the edge of the platform.

The above generally described the defendants' premises and the conditions around the lake on July 25, 1965. Shortly before noon on that day McLaughlin, who was then 24 years old, his wife, to whom he had been married for two weeks, and four members of her family drove into the Farms in two cars, parked them and paid the required parking fee. A special religious holiday known as St. Vladimir's Day was being celebrated and there were several thousand people on the premises. The plaintiff Lawrence McLaughlin and his wife were not participants in the celebration. Although Mrs. McLaughlin had visited the Farms on other occasions, it was Lawrence McLaughlin's first appearance there.

The McLaughlin party had a picnic lunch and around 5:00 P.M. Lawrence decided to go swimming. He considered himself a "good" swimmer. He had been in the Coast Guard and had had basic swimming training in boot camp. The record does not show that he ever had any instruction in diving. He went into the lake near the children's area, about 50 feet to the right of the wooden facility containing the diving platform. He took a few steps into the water "to get wet," immersed himself, walked back out and then headed toward the entrance to the diving platform which he said was in the adult swimming area. (According to Mrs. McLaughlin the water was a brownish-green color with grass-like seaweed on the top. She said she could not see her

feet when she was standing in it.) McLaughlin said that he went to the end of the platform and paused there momentarily. He saw adults swimming and floating about 10 feet farther out in the water. He looked down toward the water, could not see the bottom, raised his arms above his head and dove in. He did not know the depth was only three to four feet; no one had told him and there were no signs to inform him. He struck the bottom and suffered tragic injuries, sustaining fractures of the fourth and fifth cervical vertebrae and damage to the spinal cord. His body is paralyzed from the fifth cervical vertebra down and he has very little movement of his arms. He is almost a total quadriplegic and the condition is permanent.

The lifeguard was not on the diving platform or on his stand when the accident happened. He said he was giving first aid treatment to a bather who had cut his foot. On hearing people calling, he went into the water and brought the unconscious McLaughlin in to shore. From there McLaughlin was removed to the hospital.

At the trial, plaintiffs produced an expert in swimming and diving. The witness had been head coach of swimming and diving at Princeton University for 10 years. Previously he had coached at Dartmouth College and at West Point and had been on the faculty of the National Red Cross Aquatic School. He had read extensively on the subject of diving and was the author of a book entitled "Young Sportsman's Guide to Diving." He had many years of experience in national and international competitive diving, including participation in two Olympic Games and the Pan American Games. As a professional diver he went on several international tours, as a so-called "good-will ambassador," during which he conducted swimming and diving clinics and gave diving exhibitions in many countries around the world. He was familiar with all kinds of diving boards and platforms and had used at least 300 varied types over his long career. He was familiar with standard water depth requirements

for diving safety and had served as a consultant for architects on proper depths of water ...


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