Dorothy MAHON; Jennifer Mahon; Patrick Mahon, Plaintiffs-Appellants, v. O.C. SEACRETS, INCORPORATED; Leighton W. Moore, Jr., Defendants-Appellees.
No. 94-1567.
Argued May 2, 1995. Decided Aug. 14, 1995.
Top Four (4) Facts
Fact 1: There were nine painted signs with warning “NO DIVING’ on the rails leading to the upper and lower decks of property. The signs which were running along the rails depicted in exhibits 5A. These were very well visible signs – the most visible of which was the one painted in blue letters of eight inch height. Besides, this particular sign measured five feet in length and was situated two feet from a ladder leading into the water. The sign was allegedly visible in the darkness and was not put up by the defendants after the accident.
Reason fact is important: The fact is important in two different aspects. On the one hand, it testifies that measures had been taken by the defendants to prevent accidents. On the other, it has significance in evaluating the Mahon’s conduct and the guilt that lies with him rather than the defendants.
Fact 2: Nothing on the spot encouraged customers to dive into the water even though there were the ladder and a beach nearby. Actually, there were no diving boards, swings, or signs telling about the depth of water so that an impression could be formed that it is appropriate for diving.
Reason fact is important: It is of significance because shows that Mahon’s conduct was not in any way dependent on the defendants’ poor service or negligent behavior. The unavailability of the above stated equipments for diving should have warned the man not to dive or do so at the risk of one’s life.
Fact 3. No one saw that Mahon tested the water level prior to diving. Besides, there was nothing that could lead him or, indeed, anybody to the conclusion that the water level was deep enough so that they could believe that diving was safe there.
Reason fact is important: The fact shows that the man was reckless in his conduct – he did not take any precautions or measures to guard himself against the possible risks. As the result, Mahon tried to perform a ‘skim dive’ but having failed this, hit the bottom of the bay with his head and fractured his neck. It is obvious that the fracture would not have taken place, had the water been deeper in the area or had Mahon discovered that it was not deep enough for diving and thus abstained from the action.
Fact 4: The customers was invited to enjoy their time and spend it pleasurably playing, swimming, etc. but nobody of them was invited to dive into the water which was, as it was stated, outlined with “NO DIVING” signs.
Reason fact is important: In words of law it reads: ‘cause of action in negligence is made out when the plaintiff proves that the defendant breached a duty owed to the plaintiff, and that the breach of that duty was a proximate cause of damage to the plaintiff.’
