The opinion of the court was delivered by
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 Earms, Inc. Thereafter he brought this suit against Earms 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 mis
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). Eor reasons to be stated, we have concluded that the trial court’s action was correct and that plaintiffs’ judgments should be reinstated.
I
Eor a number of years defendant Rova Earms, 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
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 tire 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.
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 wih “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,
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. Yladimir’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
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. Erom 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 Darthmouth 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
The witness was familiar with the diving platform involved in this case from examination of the photographs in evidence as well as actual observation of it. He testified that since the edge of the platform was four feet above the water, a water depth of three to four feet thereunder was not safe. 11. was not deep enough to prevent someone from being hurt. In his opinion there was no such facility as a “children’s diving board,” but in any event, this platform, four feet above the water, was not safe either for children or adults. In his view, the facility should never have been opened for diving; it was “the most dangerous facility [he had] ever seen built for diving.” It could have been made safe by digging or dredging the area in front of the diving platform to make a “safe depth,” which, for such a platform four feet above the water, should be 10 feet. His testimony indicates further that in water three to four feet deep by the time an adult diver’s hands hit the bottom about half of his body would still be out of water, and the resistance of the shallow water would not slow him down sufficiently to avoid injury. If the depth had been 10 feet the density of the water would cause sufficient deceleration to insure safety.
On cross-examination he said that even assuming the words -“no diving” were on the end of the platform, it was still an unsafe facility because people were, in fact, allowed to jump and divo from it. If such words were there, there should have been a railing, or a lifeguard present to prevent people from diving. The witness acknowledged that a recognized principle of diving instruction is that a person should not dive into water of unknown depth. He gave that advice in his teaching and conceded that the principle appears in the swimming and diving manuals which are recognized as standard for instruction purposes and are issued by the American Red Cross and Boy Bcouts of America. And he
The defense also produced an expert in swimming and diving. Although his qualifications were not as impressive as those of plaintiffs’ witness, he was adequately qualified to testify. He testified that he was familiar with “standards” for diving into water and that “no one dives into unknown water whether he is a trained swimmer or an untrained swimmer. They are taught to jump into water to determine the depth first.” The witness identified two of the American Bed Cross swimming and diving manuals which had been shown to plaintiffs’ expert. He said they contained safety codes with reference to swimming and diving and that they were “generally recognized and accepted as safety codes in the water front safety industry.” They were then offered in evidence and rejected on plaintiffs’ objection. That ruling was made one of the grounds of appeal.
When the matter was presented on oral argument, we requested that the allegedly pertinent competent parts of the manuals (which had been marked DI and D2 for identification at the trial) be supplied for our consideration. Our examination leads us to conclude that, even assuming they were admissible, which wc need not decide, exclusion was within the trial court’s discretion and did not constitute prejudicial error. It appears to us that defendants wished to show principally that the manuals advised against diving into water of unknown depth. (There is no reference in their brief to the specific portions thereof alleged to be admissible.) But both plaintiffs’ and defendants’ experts had so testified and plaintiffs’ expert expressly said the manuals contained the advice referred to. Moreover, both of them agreed that bathers should not dive into unknown water. In addition, one of the manuals contains a statement which might well prejudice defendants’ case and support that of plaintiffs. It will be recalled that plaintiffs’ expert said that with a diving platform four feet above the water, the re
“* * * it had been established earlier that the expert had inspected the facilities, and he thus was qualified, if he first described the facilities (about which there was little factual dispute), to state an opinion as to their meeting the applicable standards, without need to formulate his opinion in response to a hypothetical question. * * “ We assume that at the retrial defendants will be prepared to lay a proper foundation for their expert’s opinion.”
The record shows that defendants’ expert had never inspected the so-called dock or diving platform. He had been on the premises only once and that was in June 1968, a few days prior to his appearance as a witness. Apparently the entire structure, including the diving platform, had been taken down and although the season usually opens on May 31, it had not been reconstructed or reinstalled.
Defendants failed to set out in their brief the precise questions they allege should have been allowed. Nevertheless, we have examined the full record of the witness’ testimony and are satisfied that the foundation laid for them was so
At the end of the proof, the trial court concluded that jury questions existed as to whether defendants’ action in creating and maintaining the diving platform for the use of invitees of the premises constituted willful and wanton misconduct or negligence, and whether the plaintiff Lawrence McLaughlin was guilty of contributory negligence.
II
On this appeal defendants argue, as they did successfully in the Appellate Division, that the trial court erred in submitting the issue of willful and wanton misconduct to the jury. If that be so, since there was no specification by the jury whether its verdict was based on a finding of willful and wanton misconduct or of negligence, the reversal of plaintiffs’ judgment must be sustained. King v. Patrylow, 15 N. J. Super. 429, 436 (App. Div. 1951).
Defendant Farms
2
invited the public to make use of its resort and recreation area, including its lake. The fee required was one dollar for parking. Presumably additional consideration stemmed from visitor patronage of the restaurant and bar facilities. Such an operator owed to its invitee the duty of exercising reasonable care for his safety
—i. e.,
care commensurate with the risk of being upon the premises or of using any of the facilities provided for his use or enjoyment. As far as the lake is concerned, in constructing, supplying and maintaining facilities or accommodations provided for patrons of the lake, Farms was bound
The diving platform in the present case and the water underneath were accommodations and facilities which Parms furnished to McLaughlin, and the jury was justified in finding that the platform was adapted for diving and that he was using it in a customary way for that purpose. Moreover, upon the making of such a finding, it would follow in our judgment that Parms was under the duty of being diligent to see that the water beneath the platform was of sufficient depth to be reasonably safe for the purpose of diving. If it was not, then the accommodation was clearly a dangerous instrumentality.
Cummings v. Borough of Nazareth, supra,
233
A.
2d 877. Additionally, assuming it was reasonable to conclude, as the jury undoubtedly did, that the platform was provided in part at least for diving, its presence at the location constituted an invitation to McLaughlin to use it for that purpose, as well as an implied representation by Parms that the use would not be dangerous. McLaughlin was entitled to assume that Parms had discharged its duty of seeing to it that the water was of reasonably safe depth and that if that depth was not present he would be warned of the obvious danger or excluded from the facility. Thus he was not obliged to make a critical examination but could act on the belief that defendants would not invite him to use a dangerous facility.
City of Ferguson v. Marrow,
210
F.
2d 520 (8 Cir. 1954);
Waddel’s Adm’r v. Brashear, supra,
78
S. W.
2d 31;
Hanson v. Christensen,
275
Minn.
204, 145
N. W.
2d 868 (1966) ;
Boll v. Spring Lake Park, Inc.,
358
S. W.
2d 859 (Mo. Sup. Ct. 1962); Annotation, Liability of private owner or operator of bathing resort or
The injury and death cases cited above were predicated on charges of negligence. In no one of them was a claim of willful and wanton misconduct discussed. But in none of them were circumstances of such an aggravated nature as those presented here. The problem to be resolved here is whether plaintiffs’ proof created a factual issue for jury determination as to whether Earms’ conduct constituted such an ‘'“'advanced degree” of negligent misconduct as to warrant a determination of willfulness and wantonness as that concept has evolved in our cases. See Krauth v. Israel Geller and Buckingham, Homes, Inc., 31 N. J. 270, 277 (1960).
In our State, in order to recover for injuries allegedly produced by willful and wanton misconduct, it must appear that the defendant with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. Krauth v. Israel Geller and Buckingham, Homes, Inc., supra; Egan Erie R. Co., 29 N. J. 243, 254 — 255 (1959); Staub v. Public Service Railway Co., 97 N. J. L. 297, 300 (E. & A. 1922); Tabor v. O’Grady, 61 N. J. Super. 446, 454 (App. Div. 1960); King v. Patrylow, supra, 15 N. J. Super. at 433; Taylor v. Lawrence, 229 Or. 259, 366 P. 2d 735 (1961); Williamson v. McKenna, 223 Or. 366, 354 P. 2d 56 (1960); Restatement, Torts 2d § 500, p. 587 (1965).
It is not easy to set down a readily usable definition of willful and wanton misconduct. There is no simple formula which will describe with exactness the difference between negligence and willful and wanton misconduct. The concept of misconduct ranges in a number of gradations from slight-inadvertence to a malicious purpose to inflict injury. The fact that the differences in gravity of fault.eannot.be stated
As this Court indicated in Krauth v. Israel Getter and Buckingham Homes, Inc., supra, 31 N. J. 270, willful and wanton misconduct signifies something less than an intention to hurt. To establish that condition it is not necessary that the defendant himself recognize his conduct as being extremely dangerous; it is enough that he know, or has reason to know, of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct. Taylor v. Lawrence, supra, 366 P. 2d at 739; Restatement, Torts 2d, supra, § 500, comment c. p. 589.
In
Greetan v. Solomon,
47
Wash.
2d 354, 287
P.
2d 721 (1955) it appeared that the owners of an apartment house either knew or had good reason to anticipate with a high degree of probability that the tenants or their guests would, after the evening meal, undertake to deposit refuse in garbage cans located in the rear of the lot, and that in the fall or winter season the attempt would be made during the hours of darkness. The owners maintained clotheslines in the rear yard for use of the tenants. The lines sagged and a tenant taking a direct path to the garbage cans would have to “duck” under them. On the day of the accident defendants commenced an excavation which was to be six feet long, four feet wide and four feet deep, the purpose being to install a new septic tank. The digging was done by a 16 year old boy in the location specified by defendants. He ceased working at dusk at which time he left an unguarded excavation six feet by four feet and over a foot in depth across the path which it was highly probable a tenant would take on the way to the garbage cans. No barrier or covering or light or warning of any kind was left at the site. Some time after dark the plaintiff, guest of a tenant, left an apartment with a bag of refuse to be placed in the cans. While proceeding
“Under such circumstances and conditions a reasonable man should know, or would have reason to know, that the leaving of an unguarded excavation six feet by four feet in size and over a foot in depth, without any kind of warning or barrier, constituted a potential source of substantial harm to such persons. It appears clear to us, therefore, that this conduct (or misconduct) on the part of appellants was done in reckless disregard of its probable consequences and, in our opinion, constituted wanton misconduct * * 287 P. 2d at 725.
Tn King v. Patrylow, supra, 15 N. J. Super. 429, the defendant operated a picnic grove on which it maintained a shooting gallery under the charge of an employee, Patrylow. King, an 11 year old hoy, who was in the grove with his mother, was attracted to the gallery and spent much of his time watching patrons shoot at targets. The rifles were chained to the counter in front of the gallery and the expended shells fell to the ground on either side of the counter. Around 9:00 p.m. Patrylow was preparing to close the gallery. It was Ms practice to shoot each rifle to empty it of bullets. The hoy asked and was given permission to enter the gallery to pick up the expended shells from the ground. Patrylow opened a side door to allow Mm to get behind the counter. The hoy then moved along the counter to a point three or four feet from 'the door, and with Ms right hand resting on top of the counter he leaned ever to gather up the shells with Ms left hand. Patrylow, who was outside the counter, picked up the rifle at the end of the counter between the boy and the door. He knew the boy was to his right two or three feet from the location of the gun. He pointed the gun slightly to the left toward the ground and fired. Although he could have aimed it toward the top of the range or at the targets at the rear, and although there was ample space to the left to discharge the gun with safety, the bullet struck the hoy’s right hand which was resting on the counter.
“The actor’s conduct is m reckless disregard of the safety of another if ho intentionally does an act or fails to do an act which it is his duty to others to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of pronability that substantial harm will result to him.”
Atlas Properties, Inc. v. Didich, 226 So. 2d 684 (Fla. Sup. Ct. 1969) is a pertinent case. There, the defendant operated a swimming pool. The plaintiff, a 13 year old girl, was drowned when her arm was caught in an uncovered filter pipe at the bottom of the pool. The defendant had knowledge of the danger incident to absence of a cover over that drain. In the subsequent death action an award of punitive damages was sustained. Such damages were held proper because' the circumstances warranted a conclusion of wanton misconduct. See also Tabor v. O’Grady, supra, 59 N. J. Super. 330, same case on reh. 61 N. J. Super. 446 (App. Div. 1960); Bogle v. Conway, 198 Kan. 166, 422 P. 2d 971 (1967).
In the present case we are satisfied that the totality of the evidence established a factual question for jury decision as. to whether defendant Farms' acts and omissions constituted willful and wanton misconduct. It constructed and maintained the dock extending into the water with planking projecting beyond the terminal points of the side rails and about six feet farther out over the water. Thus the structure was given the appearance of a diving platform. Farms, as the profit-motivated provider of the lake and that facility as an incident to its use and as knowing or being charged with knowledge that it would probably be used for diving purposes, must be deemed to have extended an invitation to use it for that purpose. Consequently, defendant came under a duty to exercise due care to make
The diving platform was built four feet above the surface of the water. Defendant knew the lake had a soil bottom, that the- water was not clear and that it was unlikely that an intending diver could see the bottom. But defendant and its agents also knew a most significant fact, that the water off the end of the platform was only three to four feet deep. The testimony clearly indicates that this was the usual depth and that defendant so considered it. The depth could have been increased by use of the dam, but apparently defendant felt no need to do so. The same result could have been accomplished by some dredging of the area underneath the projecting planks.
Obviously, as a facility for diving, the platform was extremely hazardous, and a jury would be warranted in finding that any reasonably prudent operator of the lake would be or should be aware of the danger. In fact, once a jury found that the location and appearance of the structure gave an invitation to dive therefrom into the three or four feet of water, a sequential conclusion seems inescapable, i. e., that injury to a diver who yielded to the invitation was-probably inevitable. Plaintiffs’ expert said the facility was the most dangerous he had ever seen, and that diving from it never should have been allowed. In our view, it would have been surprising if the jury had not agreed with him.
The magnitude of the hazard to which Parms exposed Lawrence McLaughlin was increased further through its failure to warn him of the shallowness of the water or to notify him (as the jury could have found it had failed to do) that diving was prohibited. Purther, if Parms did not intend to allow diving, it was reasonable for the jury to infer that the deceptive allure of the projecting platform as an invitation to do so could have been negated simply by continuing the sides of the structure to the end of the planking and then across its front.
Ill
Defendants contend that the injured plaintiff was guilty of contributory negligence as a matter of law. We cannot agree. In dealing with such a contention, all the testimony and inferences therefrom must be taken in the most favorable light to the plaintiff. After doing so, a dismissal on that ground can be granted only when reasonable men would not disagree that plaintiff’s mishap was contributed to proximately by his own lack of care.
In this case the problem has two aspects, both of which in our judgment were properly presented to the jury by the trial court. As we have indicated above, the facts warranted the jury in finding in favor of the injured plaintiff on the issue of willful and wanton misconduct. When such a finding may be made, the defense of contributory negligence takes on a different hue. In such cases, as the trial court charged the jury, the defense is applicable as a bar only if plaintiff’s actions constitute willful and wanton disregard of his own safety. It is only when plaintiff recklessly and with indifference to the high probability of injury to himself from defendant’s willful and wanton misconduct exposes himself to that risk and thereby contributes proximately to his injury that the rule of contributory negligence will bar him.
Tabor v. O’Grady, supra,
61
N. J. Super.
at 453. In
Tabor,
the Appellate Division said that "contributory wantonness” would exist when the plaintiff had or should have had knowledge of existing dangerous conditions, and conscious from such knowledge that injury will
In light of that principle, clearly there is no basis for denying McLaughlin a recovery as a matter of law because of contributory negligence. As we have said, he was not obliged to make a critical inspection of the diving platform and the lake before diving. It was open to the jury to find that the appearance and location of the platform in relation to .the water constituted an invitation to dive and a representation that the water was of sufficient depth to permit ordinary diving with safety. The implied representation was of particular potency because of the water’s murky condition which prevented a view of the bottom. See
Vukas v. Quivira, Inc.,
166
Kan.
439, 201
P.
2d 685, 688 (1949);
Hanson v. Christensen, supra,
145
N. W.
2d a t872;
Boll v. Spring Lake Park, Inc., supra,
358
S.
W. 2d at 863;
Cummings v. Borough of Nazareth, supra,
233
A.
2d at 879. Moreover, additional justification for reliance upon the apparent invitation could be found
What we have said of McLaughlin’s conduct in relation to the issue of contributory “wantonness” applies as well to the defense of contributory negligence asserted by defendants on the negligence aspect of the ease. Only a matter of degree is involved — proof of a lower grade with respect to lack of care by plaintiff would be sufficient to bar recovery on the negligence count. That is, plaintiff was obliged to use reasonable care for his own safety, and if, after viewing all the evidence most favorably to him, reasonable men could not say reasonably that he did not contribute proximately to the accident, his recovery should be barred as a matter of law. Appraising the injured plaintiff’s conduct, as we have outlined it above, we have no doubt that the issue of contributory negligence in the negligence aspect of the ease was for the jury to determine, and the trial court did not err in submitting it to them. Vukas v. Quivira, supra, 201 P. 2d 685; Hanson v. Christensen, supra, 145 N. W. 2d 868; Boll v. Spring Lake Park, Inc., supra, 358 S. W. 2d 859; Cummings v. Borough of Nazareth, supra, 233 A. 2d 874.
In their brief defendants combine a number of alleged errors to support a claim that the trial was conducted in an unfair and prejudicial manner. They involve denial of motions for mistrial, asserted misstatements of fact by the court in its charge, an alleged error in admitting in evidence certain drug bills, and criticisms of plaintiffs’ attorney’s opening and closing remarks to the jury. In our judgment neither singly nor in their totality do these criticisms warrant a conclusion that defendants suffered prejudicial error, nor are they of sufficient consequence to require individual discussion.
y
It follows from all that we have said above that the trial court was correct in submitting the issues of defendants’ willful and wanton misconduct and negligence to the jury. In addition it properly defined and sent to the jury the defense of contributory negligence as it was to be tested on each of the two liability aspects of the case. The evidence was sufficient to permit a verdict against defendants on either or both charges of liability, and thus the general verdict in favor of the plaintiffs must be sustained.
Accordingly, the judgment of the Appellate Division is reversed, and that of the trial court is reinstated and affirmed.
For reversal — Chief Justice Weinteaub. and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman — 7.
For affirmance — None.
Notes
See Cummings v. Borough of Nazareth, 427 Pa. 14, 233 A. 2d 874 (1967) where the expert testimony showed that depths ranging from 9 feet to 12 feet beneath a one meter diving board were required.
The case was submitted to the jury on the theory that at and prior to the accident Farms was in charge of its agent Schulz, its general manager, and that he and his employer could be found jointly liable to plaintiffs. The individual responsibility of Schulz was not made an issue on this appeal and the discussion of liability will be in terms of Farms’ responsibility.