Mullery v. Ro-Mill Construction Corp.

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 803 defendants had violated a special duty of care to the deceased as an intoxicated person. The concept of a special duty was developed with regard to the obligations of common carriers to intoxicated passengers. (See, e.g., Fagan v Atlantic Coast Line R. R. Co., 220 NY 301; Fardette v New York & Stamford Ry. Co., 190 App Div 543.) Its essential principles were succinctly set forth in Fardette v New York & Stamford Ry. Co. (p 546), as follows: "In cases where there is no special duty resting upon the defendant to protect the plaintiff from the results of his own intoxication, the fact that the plaintiff was intoxicated, if it was a contributing cause of the injury, is a bar to the action. [Citations omitted.] But this rule is modified in cases where a defendant, like a common carrier, owes to a passenger plaintiff a special duty to protect him because of the fact that he is intoxicated. [Citation omitted.] In such cases intoxication is considered a condition only under which the problem must be solved, and a remote, not proximate, cause of the injury, although it may have been present and may have affected the conduct of the plaintiff at the time of the accident. Obviously, if the defendant was under an obligation to protect the decedent against the results of his intoxication, and the accident happened partly through the failure of the defendant to furnish such protection, the very condition against which the defendant was to protect the decedent cannot bar the right of action arising from the failure of the duty to protect him.” We are aware of no case in which the special duty principle has been applied to a defendant other than a common carrier. (Cf. Moyer v Lo Jim Cafe, 19 AD2d 523, affd 14 NY2d 792.) In Olsen v Realty Hotel Corp (210 F2d 785), the only case cited by plaintiff as embodying such an application, it is immediately apparent from an examination of the opinion that the court did not undertake to consider the issue presented here. We do not exclude the possibility that there may be circumstances under which an extension of the special duty concept would merit consideration, although the force of the argument for such an extension has been significantly weakened by the enactment into the law of this State of the doctrine of comparative negligence (CPLR art 14-a), a doctrine regrettably not applicable to this preSeptember, 1975 death. In any event, the evidence here does not disclose such circumstances. For while there is evidence that the deceased was to some extent intoxicated, the totality of the evidence discloses no basis for the conclusion that the defendants knew or should have known that the deceased was so intoxicated that he was unable to take care of himself and that his judgment was so impaired that he was likely to undertake such a dangerous action. Accordingly, the judgment in favor of the plaintiff is reversed and the complaint dismissed. Concur—Sandler, J. P., Sullivan, Ross and Carro, JJ.