Rothbard v. Joseph P. Day, Inc.

Full title: HAROLD ROTHBARD, an Infant, by HARRIET ROTHBARD, His Guardian ad Litem…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 5, 1940

258 App. Div. 1063 (N.Y. App. Div. 1940)

Opinion

February 5, 1940.

In an action brought by the infant-plaintiffs to recover damages for personal injuries sustained in a swimming pool operated by defendant, and by their mothers for loss of services and medical expenses, judgment dismissing the complaints at the close of plaintiffs' case affirmed, with costs. No opinion.

Hagarty, Johnston and Taylor, JJ., concur; Lazansky, P.J., and Close, J., concur for affirmance of judgment dismissing the complaint as to plaintiffs Harold Rothbard and Harriet Rothbard; but dissent as to plaintiffs Leroy Schwartz and Anna Schwartz, and as to them vote to reverse the judgment and grant a new trial, with the following memorandum:

150 people were using the swimming pool which had four or five diving boards. There was only one guard, He was seated fifty-five feet away from the diving board used by the infant plaintiffs. A jury might have found that there was inadequate supervision. Plaintiffs Schwartz made out a cause of action. ( Allon v. Park Central Hotel Co., Inc., 248 App. Div. 604; affd., 272 N.Y. 631.)