Mullery v. Ro-Mill Construction Corp.

¶1Though I confess some doubt as to the amount of the verdict, I would affirm as to liability, the central issue on this appeal. There is no quarrel here with the memorandum opinion of the court in so far as it describes plaintiff-respondent’s theory of liability; indeed, that description relieves this dissenter of part of his burden. Further, the concession "that there was sufficient evidence of intoxication to raise a factual issue as to the negligence of the defendants” saves much argument, for implicit in the jury’s verdict is a finding of fact in plaintiff’s favor on this issue. The difficulty I find with the majority writing is that it then goes on to talk of subjects not really apropos as presented: of a special duty owed by common carriers to intoxicated passengers—obviously an area beclouded by considerations of contract of safe carriage—and, without specification, the application of the doctrine of last clear chance, *804and then concludes by second guessing the jury in respect of its finding "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.” Let us take last things first. At argument, we were told that the deceased could not have been far under the influence because, before he climbed to the vacant lifeguard’s seat, he had vigorously engaged in swimming back and forth. Such an exercise requires no operation of judgment; indeed, drunks are notorously able to display great physical prowess, usually expressed in fighting. The deceased’s judgment was impaired, else he would not have climbed the stand and essayed a directly downward dive in water too shallow to perform such a maneuver safely. In this respect, he possessed no more than the judgment of a small child, and there can be no doubt that, had a tiny infant wandered into the potentially dangerous, slick, wet area of a swimming pool, he would have been taken by the hand and gently led away. Perhaps there are no cases to cite on removing intoxicated persons from a swimming pool area because, by ordinary standards, no lifeguard worthy of the descriptive title, or pool attendant worthy of his pay, would even consider permitting a drunk to remain in such a dangerous place. The duty of avoiding disaster by last clear chance reaction did not arise when "the deceased left the pool, suddenly mounted a tower … and dived”. That was too late. The duty to react by removing the deceased, intoxicated, as the witnesses who testified knew and as the attendant should have known, arose when he arrived at this potentially dangerous swimming pool, where no one with impaired judgment should have been permitted to come.* Of course, this bizarre particular danger was not to be specifically foreseen, but one who operates a potentially dangerous place for profit should have a duty to foresee that one whose judgment is impaired should not be permitted to enter. To return to basics: "It is familiar doctrine that a man placed in a responsible situation must guard against a risk of danger to others where reasonable foresight would suggest a good chance of occurrence and reasonable care suggests steps in avoidance. As the doctrine of tort developed, predictability of casualty became the main element; and this in turn, as always in the case of social predictability, rested on the experience of society. The judgment required to be applied, as well as the risk of liability to be assumed, was based on what a man would regard as likely to happen, and this could be predicted only on what he knew, or should have learned, had happened in the past. The rule of tort liability was never regarded as an insurance against all casualty; it was a selective process of protection against the injury to the innocent which common sense dictated should be guarded against.” (McPartland v State of New York, 277 App Div 103, 106.) "Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect. It must be commensurate with known dangers. The risk reasonably to be perceived defines the duty to be obeyed. A man placed in a responsible situation must guard against a risk of danger to others where a reasonable foresight would suggest a good chance of occurrence and reasonable care suggests steps in avoidance.” (41 NY Jur, Negligence, § 18.) There has been *805some mention of contributory negligence. Displayed how? By getting drunk? Such a dictum has no place in this discussion of last clear chance to avoid the consequences of negligence, except as discussed above. By climbing and diving? To risk repetition, that was the result only of not having seized upon the early clear chance of eliminating all danger by immediate expulsion. The verdict as to liability should stand, and denial of the motion to set it aside should be affirmed.