Drinking + Dancing + Pools = Obvious Hazard?

By: Peter J. Gallagher (LinkedIn)

As summer is about to (unofficially) begin, a timely post about mixing drinking, dancing, and pools. (Spoiler alert: It usually doesn’t turn out great.) As a side note, in the 1990’s I occasionally went to shows at Tradewinds in Sea Bright. It was a pool/beach club that held concerts on weekend nights (I was there when Bruce Springsteen showed up to play with Steve Earle.) There were pools not far from where the shows were held and I was always amazed that nobody fell in, at least not while I was there. But I digress . . .

In Antonio v. Harrah’s Atlantic City Propco, LLC, plaintiff attended a “Pool After Dark” party at Harrah’s in Atlantic City. At these events, which were held three-days a week, year round, from 10 pm to 4 am, “[a]ttendees drank, listened to music, and danced around a pool in the center of the venue.” Harrahs employed between 25 and 35 security guards during the events. A lifeguard was also on duty and two Atlantic City police officers were stationed outside the venue. “[I]ncidents of disorderly conduct” were “frequent” at the events, with police issuing about two summonses per night and ejecting patrons every week for fighting. And, in the ten weeks leading up to the night plaintiff was injured, there were eight instances of attendees being pushed into the pool, intentionally or otherwise.

Unfortunately, the night plaintiff attended, she was bumped or pushed into the pool – allegedly by third-party defendant whose boyfriend plaintiff had “chatted” with during the event – and severely injured her hand. She sued Harrah’s, alleging negligent maintenance of premises.

Harrah’s moved for summary judgment, arguing that it did not owe plaintiff a duty because the pool was an obvious hazard. The District Court agreed, holding: “Even without warnings or added security, plaintiff could have easily observed that dancing close to the edge of the pool on a packed dance floor surrounded by other people presented the possibility of another person bumping into her and causing her to fall into the water.” Notably, the trial court also held that the eight prior incidents of people being pushed or bumped into the pool were “dissimilar” because they did not involve “wild dancing.”

Plaintiff appealed, and the Third Circuit reversed. It held that plaintiff was a business invitee, therefore whether Harrah’s owed her a duty to “depend[ed] on whether the danger of injury posed by conditions at The Pool After Dark was not only foreseeable but a danger that Harrah’s should have anticipated would in fact result in injury despite being obvious to the invitees.”

The court noted that “[t]he first question is thus whether the party area, featuring a pool surrounded by dancing and drinking patrons, was a foreseeably unsafe environment.” It held that it was, “in the sense that people had been and were likely to continue to be knocked into the pool, whether deliberate or not.”

The next question was whether the pool was an obvious hazard. If it was, then Harrah’s had no duty to protect plaintiff from it, unless Harrah’s could “anticipate the harm despite such . . . obviousness.” The court held that, even if the pool was an obvious hazard, Harrah’s should have anticipated the potential for harm because “[a]ttendees danced by the pool’s edge;” “[d]isorderly conduct, expulsion, and arrests were common;” and in the prior 10 months, eight people had been pushed into the pool.

Accordingly, the court reversed the trial court, held that Harrah’s owed a duty to plaintiff, and remanded the case to the district court for further proceedings.

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