Opinion
August 1, 1961
Appeal by defendant from a verdict in favor of the plaintiffs in a negligence action. The infant plaintiff — approximately 11 years old at the time of the accident — was injured when he fell from a "chinning bar" in the gymnasium of the defendant, a charitable organization which sponsored a recreational center for residents of the City of Watervliet. On the day in question the plaintiff, a guest of his cousin who was a member of the defendant Civic Chest, went to the recreational center and his cousin obtained permission from the director in charge of athletics for the plaintiff to be a guest for that day. The defendant contended on the trial that the plaintiff was a licensee and that the only duty owed to him was to exercise reasonable care to disclose to him any dangerous defects known to the defendant and not likely to be discovered by the plaintiff. As to this facet of the case, the court charged the jury: "It was the duty of the defendant to use the care which a reasonably, prudent operator of a gymnasium would use in similar circumstances to provide gymnastic apparatus which was reasonably safe and free from hazard for use of the infant plaintiff." It is conceded that the cousin of the plaintiff and a member of the defendant organization, and who invited and obtained permission for the plaintiff to visit the club, was an invitee. The plaintiff argues that under such circumstances he was not a licensee or a social guest but an invitee and therefore the charge as to reasonable care was proper. We think it is not necessary to decide the issue as to the status of the plaintiff when he entered the building but that the judgment may be sustained on the theory that when the director of the defendant undertook to instruct and supervise the boys on the "chinning bar", the plaintiff then became entitled to the benefits of the rule of reasonable care and which the court charged. The pertinent facts show that after admission to the building, the recreational activities director opened the gymnasium room and directed the plaintiff and several other boys to the "chinning bar" which was eight feet high and was reached by a stepladder which the director placed in position for the use of the boys. He testified he was watching the boys, instructing them how to grip the bar, that he turned away "and, evidently, that is when the accident occurred". There was no mat on the floor to cushion the boys' fall, which was one of the allegations of negligence contained in the complaint and the subject of proof at the trial. The plaintiff produced expert testimony to show that the bar was unsafe because it should have been closer to the floor; a protective mat should have been placed under the bar; magnesium powder should have been applied to the hands of the boys to minimize the danger of slipping and "catchers" should have been placed on either side of the bar so that if one of the participants lost his grip, one of the "catchers" would be able to catch him or break his fall. The court's charge as to this aspect of the case was that it was the plaintiff's duty to use care considering his age, education and experience in the use of such a bar and that the defendant owed the plaintiff the duty to use the care which a reasonably prudent operator of a gymnasium would use to provide apparatus reasonably safe and free from hazard. The court also charged as to the assumption of risk. A factual issue as to proper supervision and as to construction, care, maintenance and use of its gymnasium equipment, after plaintiff was invited by the director to participate, was submitted to and determined by the jury in favor of the plaintiff. Judgment affirmed, with costs to the plaintiffs-respondents. Bergan, P.J., Gibson, Herlihy and Reynolds, JJ., concur.