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CUMMINGS v. NAZARETH BOROUGH (09/26/67)

decided: September 26, 1967.

CUMMINGS, APPELLANT,
v.
NAZARETH BOROUGH



Appeal from judgment of Court of Common Pleas of Northampton County, Oct. T., 1964, No. 28, in case of Darrel L. Cummings, a minor, by Dorrace Cummings Woodward, his guardian, and Dorrace Cummings Woodward, individually v. Borough of Nazareth, Fred Hahn, Frederick Knecht, Jr. et al.

COUNSEL

Norman Seidel, with him Gus Milides and Herbert Toff, for appellants.

E. Jerome Brose, with him John C. Hambrook, and Brose, Poswistilo & LaBarr, and Fox, Oldt & Hambrook, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Musmanno

[ 427 Pa. Page 15]

On July 30, 1963, Darrel L. Cummings, 16 1/2 years of age and of excellent health, dived into the

[ 427 Pa. Page 16]

    swimming pool owned, operated and maintained by the Borough of Nazareth. He failed to surface. A swimming companion started in search and found Darrel lying face downward on the floor of the pool. He helped him to a ladder where a lifeguard lifted him to the pavement. Darrel was seriously injured. He suffered a subluxation of the 4th and 5th vertebrae and a fracture of the 6th, which left him a permanent cripple, paralyzed from the chest down, to be imprisoned in a wheel chair for the rest of his life.

Darrel, through his guardian, Mrs. Dorrace Cummings Woodward, and Mrs. Woodward in her own right, brought suit against the Borough of Nazareth, charging it with negligence in the construction and maintenance of the pool. The jury returned a verdict in favor of the minor plaintiff in the sum of $150,000, and in favor of the guardian in the sum of $65,000. The defendant moved for judgment n.o.v., which was granted by the trial court and the plaintiffs have appealed.*fn1

The Nazareth swimming pool, which was built in 1935, measures 200 feet by 100 feet. It is 8 ft. 5 1/2 inches deep in the center and of decreasing depths toward either end into the more shallow areas. One-meter boards (so designated because they are supposed to be one meter above the level of the water) are located on either side of the deeper areas.

Darrel dived from a one-meter board into the depth of water, later ascertained to be 6 ft. 8 7/8 inches deep. Swimming pool experts testified that the water depth, for safety sake, under a one-meter board should measure from 9 to 10 feet. It is obvious, of course, that the deeper the water into which a swimmer dives,

[ 427 Pa. Page 17]

    the less chance there will be that he will hit bottom. The Nazareth pool was encircled by what is known as a scum gutter 1 1/2 inches below the deck of the pool. In well regulated pools, the surface of the water should be more or less level with the scum gutter. On the day of Darrel's accident, the water level was about 5 inches below the scum gutter. Thus, the plaintiffs contended, the meter board, intended to be one meter or 39.37 inches above the water was, in reality, 44.37 inches above the water because of the recession of the water below the scum gutter. This meant Darrel plunged a greater distance before he hit water (incidentally acquiring increased diving momentum) than would have been normal if the water had been level with the scum gutter.

It might seem that this meticulous dealing in inches and fractions thereof makes of the issue in the case a matter of technical measurement. It is indeed just that differential in inches which could make the difference between safety and serious injury. If Darrel had been able to straighten out from his dive even one inch above the bottom, he might not now be a paraplegic. A miss, it is said, is as good as a mile. However, the margin between safety and danger was more than an inch. It was at least 2 feet 3 inches.

Why didn't the pool owners provide this extra depth, which would offer the swimmers a buffer of water protection? "Among the duties relating to diving which have been imposed by the courts on the proprietors . . . of bathing resorts or swimming pools are the duties to use care to provide . . . water of a reasonably safe depth, free from obstructions, or to warn patrons of the danger in diving . . . of the insufficient depth of, or obstructions in, the water" (48 A.L.R. 2d 104, 129, § 15)*fn2

[ 427 Pa. Page 18]

The lower court, in entering judgment n.o.v., said that a swimming pool is not a dangerous instrumentality and that, therefore, the defendant borough was not charged with the kind of responsibility which goes with a dangerous instrumentality. In this respect, it cited Cooper v. Pittsburgh, 390 Pa. 534, where this Court held that the city defendant was not guilty of negligence because of alleged failure to properly maintain a swing in a public park. The trial court's analogy is hardly apt. To say that a large body of drowning water can be compared to a swing is like saying that a tiger can be compared to a kitten because they are both of the feline family. So far as danger is concerned, there is no more similarity between a swing and a large expanse of water than there is between a bicycle and a bulldozer. Water, as indispensable as it is in the maintenance of life, can be as destructive and all-annihilating as fire. The ocean itself is a graveyard of empires of populations and treasure. Every person who enters into water deeper than his height is in peril of death. To establish this point it is not necessary to refer to the countless drownings which occur in rivers, lakes, ponds, and even bath tubs.

The intrinsic danger of a swimming pool is evident in the presence of lifeguards. Wherever people publicly congregate to swim, dive and divert themselves in the water, a lifeguard is a compelling necessity. No boat larger than a skiff ventures into open water without a lifeboat aboard or trailing in its wake. As fire, which is man's faithful servant, in preparing his dinner and warming his home, is, unless guarded, capable of destroying that home and its occupants, so, too, water

[ 427 Pa. Page 19]

    on a rampage may inflict death and destruction with the havoc of an earthquake. Even when water carries the most innocent face, it may be masking a terrible threat to life, body and limb.

The Borough of Nazareth employed at least four lifeguards, able, ready and eager at all times to speed to those who falter or weaken in the water, or have any reason at all to need natatorial assistance. But these lifeguards could not save Darrel from hitting his head against the concrete bottom of the pool because they had no facilities to dig a deeper bottom where Darrel dived, nor, apparently, did they know that a deeper bottom was necessary to save broken backs. The Nazareth pool, as it existed on July 30, 1963, was a dangerous instrumentality even though dedicated to health, exercise and entertainment. The jury so found and the evidence supports their conclusion. A diving pool without a sufficiently deep bottom is as much a dangerous instrumentality as a roller coaster with a rail missing, a ferris wheel without safety belts, or an ice skating rink with bare patches to trip and tumble the skaters.

It may be said, in passing, that in its opinion absolving the defendant from all blame in construction and maintenance of the pool, the trial court makes not a single mention of the expert witnesses who testified to the intrinsic dangers built into the pool, even though their combined testimony covered some 70 pages of the printed record.

The trial court was persuaded into believing there could be no hazard in use of the Nazareth pool because, over a period of 10 years, there had been a half million admissions into the pool. Millions of people had safely crossed the Atlantic before the Titanic sailed from Southampton boasting a prodigality of ballrooms, restaurants, orchestras and recreational devices never found aboard theretofore, but this mistress of the

[ 427 Pa. Page 20]

    seas did not carry enough lifeboats to save from an ice-strewn watery grave the 1517 passengers who had depended upon the ship's owners to manifest as much concern over safety as over sumptuousness. The negligence of the ...


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