Beverley Beach Club, Inc. v. Marron

Johnson, J., delivered the opinion of the Court. The sole question presented by this appeal is whether the evidence offered, by appellee was sufficient to justify the submission of his case to the jury. The lower court answered that question affirmatively by refusing at the close of plaintiff’s case appellant’s prayer, which was a demurrer to the evidence. Appellant offered no testimony, and the present appeal is taken from a judgment entered by the court upon the jury’s verdict.

The action was in tort, recovery being sought for injuries ⁴⁷³ sustained by appellee while bathing at Beverly Beach, in Anne Arundel County, by reason of appellant’s alleged negligence in its, maintenance. The facts are free from dispute. Appellant operated Beverly Beach, a public resort on the Chesapeake Bay. Upon the high land there were various amusements and places where refreshments, including soft drinks, were sold, likewise tables for use of patrons visiting the beach.

Adjoining the high land, an area from three to four acres, covered by waters of the bay, was upon three sides protected by a wire fence, the meshes of which were one-half inch in size. This fence extended from the water to the sand beneath, while the side near the high land was also inclosed by a similar fence, through which there were two openings sixty yards apart, each about six feet in width, and through these bathers entered and returned from the water. On the afternoon of July 18th, 1935, appellee, accompanied by his wife, child, and three other friends, motored to the beach, where they parked their cars and paid a parking charge for the privilege. After paying the customary charges for use of lockers, towels, and bathing equipment, they undressed and passed through one of the fence openings and into the water.

They swam for approximately fifteen minutes, later taking the child back to the water’s edge, and, after securing her beach ball, she, appellee, and Mr. Judson began playing “three-ring” ball. At that time they were in water six inches in depth and six feet from the shore. Mr. Judson made a “wild throw” of the ball and appellee, while reaching out for it, had his foot cut by some object beneath the water. The injury was severe and painful, requiring him to undergo hospitalization.

The wound was “clean,” shaped like part of semi-arc, but deep enough to sever arteries and tendons near the large toe. At the time he sustained it, he was standing opposite one of the entrances through the fence. There were several other bathers in the water and a fair-sized crowd upon the high land. Nothing definite is shown as to the character of the object injur ⁴⁷⁴ ing him, neither is anything known as to how long it had been in the water, nor under what circumstances it was placed there, but it is conceded that the point where appellee was standing when he contacted it was covered by water, even at low tide.

It is also conceded that appellee’s status at the time he was injured was that of a business invitee, but he seems to have assumed that his foot was cut by a broken bottle, simply upon a showing that soft drinks were sold visitors, who were permitted to take them from the stands, and that, because he proved by one witness that three days a week he with others was employed in cleaning up the picnic ground by removing trash, in which at times there were broken glass bottles, and the same witness further stated he made no inspection of the bottom of the bay which was set apart for bathers, this was sufficient to justify an inference that appellant breached a duty owed appellee of inspecting the bottom of the bathing area, or that failure to do so imposed a duty upon him of giving bathers a timely warning that such inspection had not been made and they must assume the risk of such failure to inspect. But this argument entirely overlooks the fact that there is no evidence that plaintiff’s injury was caused by a broken bottle. This may have been the cause, but it is equally possible that the object causing the injury was imbedded in the sand until by appellee’s undue exertion in catching the wildly thrown ball he came in contact with it. In such case an inspection of the bottoin of the bathing area would not have revealed its presence.

The argument also ignores the presence of the fence appellee