Knight v. Wandermere Co.

284 P.2d 1106, 46 Wash. 2d 768, 1955 Wash. LEXIS 546

• Court: Washington Supreme Court
• Decided: June 16, 1955
• Docket: 33058
• Status: Published

Opinions

Weaver, J.

Plaintiff appeals from a judgment dismissing his action for damages for personal injuries, entered after the trial court had sustained a challenge to the sufficiency of the evidence at the close of the case.

Defendant is the owner and operator of a large public recreation area north of Spokane. Among its facilities is an artificial lake, covering approximately twelve acres, which is used for swimming. Adjacent to the bathhouse and attached to it is a boardwalk or dock.

At times, plaintiff had been employed by defendant as a lifeguard and in other capacities. He had used the swimming facilities on many occasions, over a period of five or six years, and was thoroughly familiar with them.

August 30, 1953, he paid his admission fee, changed into swimming trunks in the bathhouse, and made a running dive from the dock into about four feet of water. He hit the bottom, as he had done on other occasions.

Plaintiff “caught himself” with his hands when he hit bottom. He thought he had sprained or broken his wrist. He got out of the water and discovered his wrist was cut. The attending physician testified that, in his opinion, the cut was made by some “relatively sharp object,” other than a rock.

Plaintiff’s complaint alleges that the defendant

“. . . negligently, carelessly, recklessly and wrongfully permitted and caused to remain protruding from the bottom of said lake area, ... a very sharp and jagged article.”

The proprietor of a place of public amusement is not an insurer of the safety of his patrons, but is under the duty of maintaining his premises in a reasonably safe condition. Hendrickson v. Brill, 45 Wn. (2d) 766, 278 P. (2d) 315 (1954).

We agree with counsel that the disposition of this case is dependent upon the application of the rule announced in Leek v. Tacoma Baseball Club, 38 Wn. (2d) 362, 365, 229 P. (2d) 329 (1951):

“Generally speaking, the possessor of land is liable for injuries to a business visitor caused by a condition encountered on the premises only if he (a) knows or should have known of such condition and that it involved an unreasonable risk; (b) has no reason to believe that the visitor will discover the condition or realize the risk; and (c) fails to make the condition reasonably safe or to warn the visitor so that the latter may avoid the harm. [Citing authorities.] ” (Italics ours.)

The duty to use care is predicated upon knowledge, actual or imputed, of the danger. Leek v. Tacoma Baseball Club, supra.

Although two searches were made immediately following the accident, and another search was made sometime later, when the artificial lake was drained, the “sharp and jagged article” was never found. There is no evidence as to the nature of the object; no evidence of actual knowledge on the part of defendant of its existence; and no evidence that the condition complained of had existed for such a time that the defendant was afforded an opportunity to discover and remove the danger.

Plaintiff argues that, although there is no evidence that defendant had actual notice of the particular object creating the danger that resulted in the injury, the facts are sufficient to take the case to the jury, because defendant had knowledge of a generally dangerous condition applying to the entire premises. In support of this argument, plaintiff relies upon Markman v. Fred P. Bell Stores Co., 285 Pa. 378, 132 Atl. 178, 43 A. L. R. 862 (1926); Kalb v. Fisher, 5 N. J. Misc. 977, 139 Atl. 237 (1927), affirmed 105 N. J. L. 491, 144 Atl. 919 (1929); Randolph v. Great Atlantic & Pac. Tea Co., 2 F. Supp. 462 (D. C. Pa.; 1932), affirmed 64 F. (2d) 247 (C. C. A. 3d; 1933); S. S. Kresge Co. v. Rankin, 149 F. (2d) 934 (C. C. A. 4th; 1945).

We have no quarrel with the rule announced in these cases, but a careful reading of them discloses that it is not applicable to the facts of this case.

In the Markman case, supra, the dangerous condition of the floor was not a mere chance occurrence, but was so often repeated that it was frequently called to the notice of the owner and, on one occasion, to the attention of the police. In the Kalb case, supra, the proof showed that the sidewalk in front of defendant’s store was

“ . . . habitually littered with lettuce and other vegetable refuse and that the defendant was on a number of occasions notified by the street cleaners and city inspectors to abate the condition.”

In the Randolph case, supra, scraps of bone and meat were left almost continuously on the floor where plaintiff fell and was injured. This condition had existed for several months. In the Kresge case, supra, the injury resulted from the littered condition of the floor. It was not an isolated or unexpected happening but was the usual, continuous, and foreseen result, incident to the manner in which defendant conducted its lunch-counter business. The rationale of these cases is that the dangerous condition of the premises may be so habitual, customary, and usual that it warrants an inference that the defendant had actual or constructive notice thereof.

Maehlman v. Reuben Realty Co., 32 Ohio App. 54,166 N. E. 920 (1928), cited by plaintiff, is distinguishable. A short time before plaintiff stepped upon a broken bottle and cut his foot, at a point twelve feet from shore and in one and one half feet of water; broken bottles were found on defendant’s beach. No attempt had been made by defendant, despite the presence of the broken bottles on the beach, to search under the water, in the immediate vicinity, for additional broken glass. Under these facts, the court properly held the defendant’s negligence to be a question for the jury, on the ground that finding broken bottles upon the beach indicated a probability that some broken glass might have gotten into the water adjacent thereto.

Daily inspections and policing of the premises by defendant’s employees do not constitute notice that a dangerous condition existed. Such inspections and care, exercised by defendant, are evidence only of good management and of defendant’s attempt to discharge the duty to maintain the premises in a reasonably safe condition. It is true that, on occasions, cans, bottles, and other objects, thrown into the lake and onto the beach, were removed, and that an occasional swimmer cut his foot; but this evidence falls short of establishing a dangerous condition that was habitual and customary, so that it can be said that defendant had constructive notice of that which caused plaintiff’s injury.

The mere presence of such refuse does not of itself show negligence, for such condition may arise temporarily in any swimming facility, even though the proprietor has exercised due care. Mere isolated incidents of cans and bottles upon the beach and in the water are probative of nothing. We agree with the trial court, there is no evidence from which it can be inferred that defendant had constructive notice that a dangerous condition existed. Mathis v. H. S. Kress Co., 38 Wn. (2d) 845, 232 P. (2d) 921 (1951); Beverly Beach Club v. Marron, 172 Md. 471, 192 Atl. 278 (1937); Johnson v. Bauer, 292 Mass. 534, 198 N. E. 739 (1935); Bader v. Great Atlantic & Pac. Tea Co., 112 N. J. L. 241, 169 Atl. 687 (1934); Penny v. Sears, Roebuck & Co., 193 Minn. 65, 258 N. W. 522 (1934).

The judgment is affirmed.

Hamley, C. J., Mallery, and Hill, JJ., concur.