Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.
Plaintiff administratrix ad prosequendum and general administratrix of the estate of Nicholas Raponotti, deceased, appeals from a judgment of no cause for action entered on a jury verdict in favor of defendant Burnt-Mill Arms, Inc. The suit sought to recover money damages for the death by drowning of plaintiff's husband in a swimming pool owned and operated by defendant. A consent judgment of dismissal, with prejudice, was entered in favor of defendant Paparone & Company.
The essential facts are undisputed and will be summarized for an understanding of the issues involved. In 1966 defendant built and was the owner of a 112-family garden apartment complex in Voorhees Township, Camden County, New Jersey. Dolores Tarricone was one of its tenants. As part of the recreational facilities furnished to all tenants, defendant had installed an outdoor swimming pool 24 feet wide at the deep end, 35 feet wide at the shallow end, and about 50 feet in length, with a maximum depth at one end of 6 feet 4 inches. The pool did not contain a diving board. It was completely enclosed by a wire fence, except for a gate opening leading to the pool. A small building, designated as a recreation hall, was located outside of the gate and was provided by defendant for the tenants and their guests to be used in conjunction with the pool. The pool was illuminated
for night bathing with outdoor lights and underwater lights, and contained signs on or near the fence indicating the pool was "private" and "swim at your own risk."
The written regulations promulgated by defendant pertaining to the use of the pool, which were delivered to all tenants, and with which we are concerned, provided that the pool would be open daily until 11 P.M., except for Fridays and Saturdays when it would remain open until midnight. Each tenant was permitted to bring a maximum of four guests without prior approval by defendant. On prior arrangement with defendant a tenant could bring an unlimited number of guests for a special pool party; on such occasions the pool facilities could be used until 2 A.M. The defendant knew it was customary for the tenants and their guests to use the recreation hall, bring their own food, liquor and other beverages.
Admittedly, defendant never furnished a lifeguard for the pool or any appliances for lifesaving resuscitation. No separate charge was imposed for the use of the pool and its facilities beyond the rent charged. The owner controlled and maintained the pool.
On August 11, 1966 Dolores Tarricone, having reserved the pool for a party in accordance with defendant's regulations, was hostess to about 30 adult guests, including plaintiff's decedent, Nicholas Raponotti. Decedent was in good health and was an average swimmer. He participated to the festivities; he ate, drank and swam. The testimony of those witnesses present that night who were called to testify indicated that no one was intoxicated. Although there were guests in and around the pool who spoke with decedent about five or ten minutes before his body was discovered in the deep end of the pool, no one saw him enter the pool and no one knew what happened to him.
One of the guests recovered decedent's body from the pool and for about one-half hour various guests attempted artificial respiration. One of the guests testified, without objection, that a nurse who was present examined decedent and
detected a faint pulse; she then gave instructions on how to administer mouth-to-mouth resuscitation, which was also performed. An ambulance arrived within one-half hour after decedent's body was retrieved and oxygen was then administered. Decedent was dead on arrival at the hospital. An autopsy was performed. It is admitted that decedent died as the result of drowning and that he had .15% alcohol in his blood.
The complaint charged defendant with negligence in the operation of the pool in failing to provide a lifeguard and appliances or equipment for lifesaving and resuscitation. The trial was on the issue of liability only. The court submitted the following three interrogatories to the jury: