DeSimone v. Philadelphia

110 A.2d 431, 380 Pa. 137, 1955 Pa. LEXIS 542
CourtSupreme Court of Pennsylvania
DecidedJanuary 3, 1955
DocketAppeals, Nos. 303 and 304
StatusPublished
Cited by32 cases

This text of 110 A.2d 431 (DeSimone v. Philadelphia) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeSimone v. Philadelphia, 110 A.2d 431, 380 Pa. 137, 1955 Pa. LEXIS 542 (Pa. 1955).

Opinion

Opinion by

Mb. Justice Musmanno,

The City of Philadelphia maintained in 1949 at 12th and Heed Streets a swimming pool which was 80 feet long, 40 feet wide and ranged from a wading shallowness at one end to a depth of over 5 feet at the other end. On Tuesdays, Thursdays and Saturdays the pool was reserved for boys; on Mondays, Wednesdays and Fridays, girls had it for their exclusive use. A lifeguard attended on the boys’ days but not on girls’ days.

To this pool on Wednesday, June 29, 1949, came some 50 girls for relief from the heat of a glowing summer’s day and for the general enjoyment and fun that people, particularly the young, find in the popular sport of swimming. Among the gay children in the water at about 1 o’clock of the afternoon was Anna Jean DeSimone, 15 years of age, accompanied by her sister, Alice DeSimone, 10 years of age. While the younger child waded at the shallow end, Anna Jean swam in the deeper area of the basin. Another swimmer, Dolores Capaldi, 14 years old, was playing in the superficial waters when she heard shouts coming from the opposite end of the pool. Climbing a ladder to the pavement, she ran to the scene of the alarm and there saw Anna Jean helplessly floating and obviously in serious difficulty. She dived toward her stricken companion while another girl, Anna May Hoffman, joined in the attempted rescue. Between them they bore the drowning child to the edge of the pool and on to the cement apron. As the rescued girl lay on the pavement moans rose from her lips, her eyelids fluttered and bubbles escaped from her mouth and nose.

[140]*140Having had, in years past, some slight instruction at school in artificial respiration, Dolores attempted to apply the vague remnants of her knowledge to the task of resuscitating the prostrate Anna Jean. Anna May, equally an amateur, assisted Dolores in this heroic effort. By turns they pressed the inert body, lifted the arms and blunderingly sought to renew the breathing which had now ceased. A third person, referred to only as Mario, also gave a hand. When Anna Jean was finally taken to the hospital, arriving there at 2:45 P.M., she was pronounced dead.

The parents, as administrators of the estate of the deceased girl, and in their own right, brought suit against the City of Philadelphia and, at the ensuing trial, the jury returned a verdict in their favor in the sum of $3500 in the Wrongful Death Action and $15,000 in the Survival Action.

The defendant City moved for a new trial and for judgment n.o.v. Both motions were refused and this appeal followed. Counsel for the defendant urges a reversal of the judgments on the representations that the plaintiffs failed to prove that the City was negligent and that the City, acting in furtherance of the governmental purposes of the City, is immune from tort liability.

In the very recent case of Hill v. Allentown Housing Authority, 373 Pa. 92, this Court said: “In Honaman v. Philadelphia, 322 Pa., 535, 185 A. 750, it was held that in maintaining parks and playgrounds a city acts in its proprietary capacity and is therefore liable for failure to exercise, reasonable care; there was cited with approval the statement from 2 Dillon, Mun. Corp. 3rd ed. §985 that ‘ — municipal corporations, are liable, for the improper management and use of their property, to the same extent and in the same manner as [141]*141private corporations and natural persons.’ ” (Emphasis supplied.)

Acting in its proprietary capacity in maintaining and operating the swimming pool involved in this litigation, the City of Philadelphia was therefore required to exercise due care under the circumstances. In Paraska v. Scranton,, 313 Pa. 227, we said: “Where a city undertakes to manage and supervise property, such as public parks and playgrounds, it must take care to keep that property in a reasonably safe condition for those invited to come upon it, and this is particularly true in the case of children in playgrounds.”

In Styer v. Reading, 360 Pa. 212, 215, we said: “A municipality is not an insurer of the safety of children playing on its public playgrounds. However, it is well settled that in maintaining parles and playgrounds a city must exercise reasonable care.” (Emphasis supplied. )

Did the City of Philadelphia exercise reasonable care to protect from harm the children invited to swim in the pool which it maintained? That was the question presented at the trial and it was submitted to the jury, the only tribunal which, under the procedure in the case, could pass upon such a question of fact. In the Hill case already cited, we said further: “. . . where a city undertakes to manage and supervise property, such, for example, as a public park, it must exercise reasonable care to keep the property in reasonably sale condition for those who lawfully come upon it, including the policing of it sufficiently to protect children from dangers in connection with their entrance and play thereon.” (Emphasis supplied.)

Did the City, according to the standards set up in the Hill case, sufficiently police the pool to safeguard children from the dangers inherently attendant upon bodies of water? It is evident that the City recognized [142]*142the need of a lifeguard at the pool since one was installed on Tuesdays, Thursdays and Saturdays when the swimming facilities were enjoyed by boys alone. No explanation has been offered or possibly could be given, as to why there would be less need for lifeguards when girls, instead of boys, occupied the pool. The contrary might be more in keeping with common knowledge since, as a general observation, boys more naturally take to acquatic sports than girls.

Counsel for the City contends that the plaintiffs failed to show that the City did not have a lifeguard in attendance on the day of the tragedy. The undisputed evidence reveals that only two City employes were on duty at 12th and Reed on the day in question: an elderly lady who examined the feet of the girls before they entered the pool, and the caretaker or “janitor at the pool.”

It is argued by the City that “there is no evidence or claim that defendant by its employes failed to rescue decedent promptly.” This statement collides head-on with the facts. The record almost conclusively shows that not only did the defendant’s employes not rescue decedent promptly, but it reveals that they did not even stretch out a helping hand to the struggling child. Moreover, even if they had bestirred themselves in this worthy endeavor, their efforts could only have been pathetically futile. The lady attendant, who was described as a “short, little lady with gray hair,” was, according to one witness, 86 years of age. The janitor was fat, middle-aged and nervous. While Dolores and Anna May were engaged in ■ their brave but hopeless efforts to save Anna Jean, the janitor Maleno (described as the “retired type,”) • was “running around like a chicken without a head.”

Maleno was apparently ignorant as to the very first step to be taken in an emergency of the character [143]*143described. Alice DeSimone testified: “The girls were all telling him what to do.” Dolores testified that Maleno “wasn’t doing anything.”

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Bluebook (online)
110 A.2d 431, 380 Pa. 137, 1955 Pa. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desimone-v-philadelphia-pa-1955.