76 A.D.2d 802 | N.Y. App. Div. | 1980
Lead Opinion
Judgment, Supreme Court, Bronx County, entered December 6, 1978 in favor of plaintiff executrix in a wrongful death action, reversed, on the law, without costs, and the complaint dismissed. Appeal from order entered May 9, 1979, denying a posttrial motion to set the verdict aside on varied grounds, dismissed as academic. Defendants appeal from a judgment in favor of the plaintiff executrix after a jury trial. The deceased, a member of a private health club owned and operated by the defendants, sustained fatal injuries on February 17, 1975, in the swimming pool maintained by the club. After swimming in the pool for a period of time, the deceased left the pool, suddenly mounted a tower alongside it on which the lifeguard’s chair was located and dived into a shallow portion of the pool, fracturing his cervical spine. The theory of liability advanced at the trial was that the deceased was intoxicated, that employees of the defendants knew or should have known of his condition, and that the defendants were negligent in not excluding the deceased from the area of the swimming pool. We agree that there was sufficient evidence of intoxication to raise a factual issue as to the negligence of the defendants. On the other hand, it seems quite clear that the deceased’s own actions were negligent as a matter of law. In the absence of circumstances that would permit the application here of the last clear chance doctrine (see Ann. Last Clear Chance-Intoxicated Person, 26 ALR2d 308, § 12, pp 345-346) the liability of the defendants may be sustained only on the theory, in effect presented to the jury in the court’s charge, that the
Dissenting Opinion
Though I confess some doubt as to the amount of the verdict, I would affirm as to liability, the central issue on this appeal. There is no quarrel here with the memorandum opinion of the court in so far as it describes plaintiff-respondent’s theory of liability; indeed, that description relieves this dissenter of part of his burden. Further, the concession "that there was sufficient evidence of intoxication to raise a factual issue as to the negligence of the defendants” saves much argument, for implicit in the jury’s verdict is a finding of fact in plaintiff’s favor on this issue. The difficulty I find with the majority writing is that it then goes on to talk of subjects not really apropos as presented: of a special duty owed by common carriers to intoxicated passengers—obviously an area beclouded by considerations of contract of safe carriage—and, without specification, the application of the doctrine of last clear chance,
Anomalously, had the lifeguard been in his tower chair, his very pre-emption of the perch might have prevented the occurrence even though the deceased would not have been close enough on his arrival to have been well observed as to sobriety. However, the guard was elsewhere, checking in patrons at the pool’s entrance, where the deceased would easily have been subject to closer observation.