Seligson v. Victory Pool, Inc.

Per Curiam. Plaintiff sued to recover for sustained in the defendant’s swimming pool. Plaintiff testified that she visited the pool with two friends and that while she was bathing in the pool, she cut the sole of her foot on what appeared to he the broken bottom of a glass bottl^. According to the testimony, on one side of the pool there was a beach which was about three yards away from the edge of the pool; that there was also a restaurant maintained by defendant where [1068] bottled beverages, including milk, were sold;,that bottled beverages were also sold at a small stand near the handball court close to the pool; that people were sitting around in various places in close proximity to the pool eating, and drinking from bottles. The testimony of plaintiff and her witnesses was also to the effect, that children were permitted to play with glass bottles on the beach alongside-the pool and that some of these children were filling bottles with sand and pouring the sand into the water. Neither the plaintiff nor- either of the witnesses, however, saw anyone throw the bottle into the water. Two lifeguards were employed by- defendant who were stationed at the back of the pool, or, in other words, at the opposite end of the pool from where the plaintiff sustained her injuries. Plaintiff based her claim for negligence upon defendant’s alleged failure to provide sufficient or adequate supervision at the pool, and this was the question of fact upon which the case was given to the jury by the lower court. Defendant takes the position that in a negligence action of this type, where there is no proof that patrons threw or had been in the habit of throwing things into the pool, there was consequently no proof of notice, either actual or constructive, and that without such proof plaintiff may not recover. Defendant failed to put in any proof and rested-on plaintiff’s case. We believe that the judgment of the lower court should be affirmed. Under the facts as testified to by plaintiff and her witnesses, the jury was justified in finding negligence on the part of the defendant for failure to properly and adequately supervise the pool in order to fully protect its patrons.. Plaintiff was a paying patron and was entitled to proper protection. “ One who collects a large number of people for gain or profit must be vigilant to protect them.” (Tantillo v. Goldstein Brothers Amusement Co., 243 N. Y. 286, 290; Gerhardt v. Manhattan Beach Park, Inc., 237 App. Div. 832, affd. 262 N. Y. 698: Tapley v. Ross Theatre Corporation, 275 N. Y. 144, 148.) The judgment should be affirmed, with costs.