Appeal from order of Court of Common Pleas of Northampton County, May T., 1968, No. 198, in case of Albert Carl Starke, Jr., v. Mabel B. Long, Bushkill Park Amusement Co., Inc., and Sterling Mumaw.
James C. Hogan, with him Hogan and Scott, for appellant.
Edward H. Feege, with him Charles L. Oldt, Fackenthal, Teel & Stettz, and Fox, Oldt & Hambrook, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Spaulding, J., concurs in the result. Jacobs, J., dissents.
[ 221 Pa. Super. Page 340]
Albert Carl Starke, Jr. was a participant in lifeguard lessons being given at a public swimming pool operated by the Bushkill Park Amusement Company. The lessons were being given by one of the pool's lifeguards, Sterling Mumaw, with full knowledge and consent of the pool's manager, Mrs. June Mumaw (Sterling's mother), and of Mabel Long, sole owner of the Bushkill Park Amusement Corporation, of which corporation she is President. Plaintiff was injured when a four and one-half foot high plywood foot board of the lifeguard platform rig from which he was diving, and which was placed five feet away from the edge of the pool, broke under his weight (220 pounds), causing him to be hurled to the concrete pool apron below. The board was attached to the platform rig by four bolts but had no underneath support.
In his suit against the amusement company and Mrs. Long and Sterling Mumaw (the lifeguard instructor), plaintiff presented the testimony of an expert witness, Dr. Donald Parker, Assistant Professor of Engineering Science at Lafayette College, that the board broke under the strain of plaintiff's use because the beam was highly "underdesigned" and probably "not designed at all". It was Dr. Parker's opinion that even had the board been of solid wood instead of plywood it still would not have been sufficiently safe to support a 200-pound static weight. Dr. Parker further testified that this design deficiency would not have been apparent to an ordinary purchaser from a visual inspection. On the basis of Dr. Parker's testimony, a compulsory non-suit in favor of all the defendants was entered by the court below.
In relying on Dr. Parker's testimony, the lower court improperly assumed that the duties of the property owner and possessor were limited to a visual inspection.
[ 221 Pa. Super. Page 341]
Section 343 of the Restatement of the Law of Torts, 2d, states:
"§ 343. Dangerous Conditions Known to or Discoverable by Possessor
"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
"(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable ...