March 13, 1962
SOMERTON SPRINGS SWIM CLUB, INC.
Appeal, No. 131, Jan. T., 1962, from judgment of Court of Common Pleas of Bucks County, May T., 1959, No. 418, in case of Samuel Podvin v. Somerton Springs Swim Club, Inc. Judgment affirmed.
William A. Goichman, for appellant.
Donald W. VanArtsdalen, with him VanArtsdalen & Pratt, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
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OPINION BY MR. CHIEF JUSTICE BELL
This is an appeal from a non-suit. Podvin, a member of defendant club, brought an action in trespass to recover damages for injuries sustained by him while playing volleyball. The volleyball court was owned by defendant and was on its premises. Plaintiff wore sneakers; he was playing with five other players when the injury happened on August 30, 1958 at about 2:00 p.m.
Considering the testimony in the light most favorable to plaintiff, plaintiff testified: "Q. Will you tell us
[ 406 Pa. Page 385]
in your own words how the accident happened? A. Well, I was playing on the left court, and the ball came over my head on the right, and I jumped up to hit the ball over the net, and when I came down I landed on sand, and my foot went under me. ... and when it went from under me my whole body went right down on my ankle."
Plaintiff was an experienced player who had played volleyball on defendant's premises ten times that summer prior to the date of the accident. On August 30 he had waited at the volleyball court for an hour to play on a team of six persons. Obviously he must have seen the condition of the court. Moreover, plaintiff's team (of three) had played one game which lasted approximately 20 minutes. They then changed sides and early in the second game plaintiff jumped into the air and landed in the manner above described.
Plaintiff testified that he had not seen any sand on the court that day, but that when he got up after his fall his foot was scraped and there was sand embedded in his foot and his ankle and scrape marks clear up to his thigh.*fn1 The volleyball court lay adjacent or near to a children's play-sand area, and on various occasions children ran across some portion of the volleyball court with a bucket of sand, or in a bathing suit covered with sand. While there was no evidence that anyone ever observed sand falling from the children's bathing suits or buckets, it is a matter of common knowledge that sand was likely to drop therefrom. However, plaintiff admitted that almost every time he played volley ball, the ball would occasionally land in the sand area and one of the players would retrieve the ball which had sand particles on it, and necessarily sometimes on the players' shoes. Plaintiff proved by a claimed recreation
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expert that in her opinion the volleyball court was constructed entirely too close to the children's play area, and both the court and the children's play-sand area should have been enclosed by a fence.
Plaintiff did not testify that the sand upon which he alighted from his jump gave way or moved or slipped or slid under his feet, or that his fall was occasioned by anything other than his own clumsiness. From all that appears in the testimony, plaintiff could and would have fallen regardless of whether he landed on the concrete or upon sand, the amount, size and dimensions of which were never described or even mentioned. Moreover, if sand were on the court, there was no evidence that defendant had knowledge of it or how long it had been there. If the sand created a dangerous condition which was obvious or of which defendant should have had knowledge, it is clear that plaintiff must have had equal knowledge of this obvious danger. The law is well settled that there is no duty to warn or guard a guest or a business visitor against a danger that is known or is obvious: Brewster v. Morrone, 395 Pa. 642, 151 A.2d 607; McCreery v. Westmoreland Farm Bureau Co-operative Association, 357 Pa. 567, 55 A.2d 399.
We are convinced that (1) plaintiff failed to prove by a fair preponderance of the evidence that defendant was negligent and that its negligence was the cause of his injury, and (2) plaintiff's evidence likewise disclosed that if his injury was caused by sand on the volleyball court which even he did not see in the hour in which he was watching and in the twenty minutes in which he was playing, he was guilty of a voluntary assumption of the risk.*fn2