Styer v. Reading , 360 Pa. 212 ( 1948 )

The law requires that a municipality shall exercise reasonable care in the maintenance of its playgrounds and in the supervision of their use by the public: Novak v. Ford CityBorough, 292 Pa. 537, 141 A. 496; Paraska v. Scranton, 313 Pa. 227,229, 169 A. 434; Lemak v. Pittsburgh, 147 Pa. Super. 62,64, 23 A.2d 354. But the evidence must be such as will support a finding that this duty has been violated, with resultant injuries, before responsibility attaches. A municipality is not an insurer of the safety of children in playgrounds. Thus, in McCallister v. Homestead Borough, 322 Pa. 341,185 A. 583, an action for the death of a child who was drowned when he fell off a float in a public swimming place maintained by the borough, during an off-hour of the lifeguard, this Court said (opinion by Mr. Justice LINN), at p. 343: "Plaintiffs rely on the rule recently applied in Paraska v. Scranton, 313 Pa. 227, 229 . . . that 'Where a city undertakes to manage and supervise property, such as public parks and playgrounds, it must take care to keep that property in a reasonably safe condition for those invited to come upon it, and this is particularly true in the case of children in playgrounds' . . . But the evidence does not support a finding that the borough failed in performing that duty. The borough is not an insurer. A duty must appear before responsibility attaches . . . There is not sufficient evidence of notice of the use of the float by small children when the guard was not in attendance; an occasional instance does not impose generalliability . . . The probability of harm was not so obvious asto render defendant responsible for failure to anticipate it . . ." (Italics supplied). See also Miller v. Philadelphia,345 Pa. 1, 25 A.2d 185; Gleason v. Pittsburgh Housing Authority,354 Pa. 381, 47 A.2d 129.

Restatement of Torts, section 318, cited by the majority, reads: "If the actor permits a third person to use land or chattel in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control." (Italics supplied). Comment (b) under this section states: "The rule stated in this Section is applicablewhere the possessor of a chattel or of land is present when thechattel is being used or the activity being carried on with hispermission, and when therefore, he has not only the ability to control the conduct of the third person as possessor, but also the opportunity to do so." (Italics supplied). Regarding the duty to anticipate dangerous use, it is said, in Comment (c): "If the chattel is one which can be safely used only if extreme caution is employed, or if one in possession of land permits a third person to conduct an activity thereon which is highly dangerous unless great care is taken, he may properly be required to exercise constant vigilance to be able to exercise his control over the third person when and if the occasion for it arises. On the other hand, if the character of the chattelor its permitted use, or the activity upon the actor's land isof such a character as to be dangerous only under particularconditions and in particular situations, the actor is requiredto exercise vigilance only if there is a reasonable probabilitythat such a condition or situation will arise." (Italics supplied). And, in Comment (d), it is stated: "If the third person permitted to use the actor's chattel persistently uses it in a manner dangerous to others, the possessor may be required to terminate his consent to its use in order to escape liabilty for any harm done by the further dangerous use of the chattel." (Italics supplied).

On the present record it is undisputed that appellant's playground leader was not present in the basement room at the time of minor appellee's injury. She left the basement room shortly after minor appellee and the boy started batting the shuttlecock to and fro, and had gone out onto the playground, to a handicraft table some distance away. There is no proof of anything occurring prior to the accident or during the play from which minor appellee's injury could have been anticipated by the most alert playground leader or attendant. The mere batting of the shuttlecock, which is all that occurred in the playground leader's presence, was not an inherently dangerous activity requiring constant vigilance. Almost daily for a period of three weeks prior to the accident the children had batted the shuttlecock in precisely the same manner and under exactly the same conditions, without injury to any child. Light was provided through five windows and the open door. The room was regularly used for handicraft purposes, and it may be assumed the lighting conditions were also adequate for the children to see each other and the shuttlecock as they batted it to and fro. True the batting back and forth of the shuttlecock by these children was not strictly in accordance with the rules governing the playing of a regulation game of badminton, in that they were using an outdoor shuttlecock indoors, without a net, and where the space available was less than specified for a regulation badminton court. But it cannot seriously be contended that any of these things constituted a violation of any rules designed for the safety of the players, for it is a matter of common knowledge that in badminton and similar games the play is frequently at close range, whether the game be played indoors or outdoors. So far as the record discloses, the space available and conditions were entirely adequate for the activity engaged in, which was not the playing of a regulation badminton game but the mere batting of the shuttlecock. Moreover, it was not during the course of the play that minor appellee's injury befell her.She had told the boy that she was quitting the game and tossedthe shuttlecock to him.¹ Seeing that he held the shuttlecock in his hand, and assuming he had also quit, she glanced away, but the boy, who was then eleven years of age, despite minor appellee's announcement that she was unwilling to continue the game, which he heard, and despite the fact that she had turned her head away and was looking in another direction, which he observed, without warning and without cause batted the shuttlecock at her so that it struck her in the eye.² Harm cameto minor appellee only after danger was created by thisimpulsive, unprovoked, prankish act of the boy, of whichnothing whatever in his prior conduct or that of minor appelleegave warning, after the game had been completed and at a time when appellant's playground leader was not present and therefore had neither the ability nor the opportunity to act.

There is nothing in any of the cases cited by the majority to warrant extending the range of liability to a situation such as that here presented. Paraska v.Scranton, supra, an appeal from judgment for defendant upon an affidavit of defense raising questions of law, decided only that the rule of municipal immunity for liability for negligent maintenance did not apply to accidents occurring in public playgrounds. Honaman v. Philadelphia, 322 Pa. 535, 185 A. 750, held that failure to erect a backstop or screens along the highway bordering a park constituted an actionable violation of a statutory duty imposed by the Act of 1870, P. L. 451, 53 PS 6681. Weber v. Harrisburg, 216 Pa. 117, 64 A. 905, decided it was not error to refuse binding instructions for defendant in an action for injuries caused by a mooring cable permitted by the city to be stretched across a public pathway. In Rockett v.Philadelphia, 256 Pa. 347, 100 A. 826, the pivotal question was whether at the time of the accident the speed of automobiles in Fairmount Park was governed by section 21 of the Act of April 14, 1868, P. L. 1083, or by the Act of April 27, 1909, P. L. 265. Glase v. Philadelphia, 169 Pa. 488, 32 A. 600, involved injuries caused by "a mantrap, the very design of which was negligence." Barthold v. Philadelphia, 154 Pa. 109, 26 A. 304, held that refusal of defendant's request for binding instructions on the ground of contributory negligence was not error in an action for the death of a boy who was drowned in an open pool or well. In Stevens v. Pittsburgh, 329 Pa. 496,198 A. 655, an action for the death of a boy killed while standing near his home by a bullet fired by a person in a public park, there had been long-continued, promiscuous shooting in the park — clearly a highly dangerous activity — and "the city had notice of the manner in which its property was being used and had opportunity to suppress the nuisance." (Italics supplied).Rachmel v. Clark, 205 Pa. 314, 54 A. 1027, held that permitting slabs of slate to stand in the space adjacent to a public street in a thickly populated community amounted to a nuisance, visiting defendants with responsibility for injuries occasioned thereby to any person, adult or infant, who was himself without fault. Finally, in Fehrs v. McKeesport,318 Pa. 279, 178 A. 380, where a child was injured by the explosion of a dynamite cap — an inherently dangerous article, — the negligence was admitted. The sole question was whether an intervening act amounted to a superseding cause relieving the defendant from liability.

In Clark v. City of Buffalo, 288 N.Y. 62, 41 N.E.2d 459, action was brought against the city for a permanent injury to the eye of a seven-year-old girl sustained when a boy, eight years of age, picked up a piece of glass lying near a wading pool in a public park where the children were playing, and threw it at her, striking her in the eye. It was contended that the city, having permitted a concessionaire to sell within the park drinks from bottles which when emptied were thrown upon the ground and broken, was negligent in failing to removebroken glass from the ground adjacent to the wading pool and infailing, through its lifeguards and attendants stationed at thewading pool, properly to supervise children while playing inthe park. Reversing judgments entered on verdicts for the plaintiffs, the court there said (41 N.E.2d pp. 460, 461): "The city is not an insurer of the safety of those who make useof its park facilities. . . . The problem, being one of causation, prompts the inquiry whether the record contains any evidence from which the jury could find that the proximatecause of injuries suffered by the plaintiff was a failure bythe city to exercise reasonable care either in the maintenanceof the park as a public place for recreation or in thesupervision of facilities which it afforded for children'splay. There is no evidence that prior to the accident theplaintiff, her two companions and the boy who threw the glasswere quarrelsome; nor is there proof that anything had occurredin their play either in the wading pool or elsewhere from whichthe most vigilant life guard or attendant could haveanticipated the unprovoked conduct of the boy whose sudden and impulsiveact brought injury to the plaintiff. . . . The efficient cause of plaintiff's injuries was the wrongful act of a third person — an act which, in the circumstances, could not have been foreseen in the exercise by the city of its legal duty toward the plaintiff." As clearly, in the present case, the cause ofminor appellee's regrettable injury was the unforeseeable andwrongful act of Richard VonNeida. To hold otherwise is to say, in effect, that the law imposes upon a municipality conducting a public playground an absolute duty so to control children coming thereon as to prevent any play involving an object likely to cause injury if, being suddenly and without warning thrown by one child at another, it should strike the eye of such other child, whether in the course of the play or otherwise, with the result that not only shuttlecocks but most of the standard objects and appliances in common use for the recreation and diversion of children — such as marbles, baseballs, volleyballs, tennis balls, footballs, and many others — may no longer be considered permissible for public playgrounds.

I would reverse the judgments and here enter judgments for the appellant.

¹ Minor appellee testified as follows: "Q. The last time after you came in from running after the shuttlecock, which had gone out the door, you decided to quit and you said to Richard that you were quitting? A. Yes. Q. And you threw the shuttlecock to him? A. I tossed it to him. Q. You mean with your racquet or with your hand? A. With my hand. Q. And then you looked away? A. I had my head in the same position, but I glanced away . . . Q. Did you see him get it? A. Yes. When I tossed it to him he had it in his hand."

² Richard VonNeida testified: "Q. And finally Miss Styer decides to quit or tosses the shuttlecock to you and says, 'I am quitting'; is that right? A. I heard she said something about quitting. Q. Did you hear the word 'quitting'? A. She said 'quit'. Q. She said, 'quit'; is that right? A. Yes . . . Q. And at the time when she wasn't looking, and when the play was over, you struck it again and hit her in the eye; is that right? A. I didn't strike it with great force because we were close together. Q. Did you do that or didn't you? Was she looking at you when you hit it the last time? A. She glanced away. Q. And you hit it and hit her in the eye with it; is that right? A. Yes."