Ethel HAFT and Roberta Karen Haft, a minor, by her Guardian ad litem, Ethel Haft, Plaintiffs and Appellants, v. LONE PALM HOTEL, Commodity Credit, Inc., a corporation, and Alice Blackburn, Defendants and Respondents.
OPINION ON REHEARING
Plaintiffs appeal from a judgment in favor of defendants, entered after a jury verdict exonerated defendants in plaintiffs' action for the alleged wrongful death by drowning of Morris M. Haft and Mark Brian Haft. The two decedents were father and son; plaintiffs are the surviving heirs.
We have reached the conclusion that any errors below were either invited or not prejudicial and that the judgment must be affirmed.
On June 26, 1961, Mr. and Mrs. Haft and their five year old son, Mark, went to Palm Springs. They stayed at the Lone Palm Motel operated by defendants. The family had stayed at the motel before and were familiar with its facilities. These included living accommodations on both sides of Indian Avenue. On the east side there were located the motel office, a restaurant, and a swimming pool. On the west side there were rooms, a wading pool and a swimming pool. The Hafts stayed on the west side and it was in the west pool that Mr. Haft and Mark met their deaths.
The family used the west pool on June 26 and Mr. Haft and Mark did so again on the 27th, the date of the incident in question. On that day the weather was typically hot, with the temperature around 115 degrees. In the morning Mrs. Haft prepared to go shopping, and Mr. Haft and Mark were ready for the pool. Mrs. Haft testified that before leaving, she suggested to Mr. Haft that he play with Mark in the wading pool because Mark had more fun there. She also testified that while both Mr. Haft and Mark could dog-paddle and tread water to get around the pool, ‘they didn't know how to swim in the sense of the word of being real swimmers.’
A defense witness, Mr. Ollson, first observed the father and son in the wading pool and later saw them in the swimming pool. No other persons were seen at the pool during the period pertinent here. When they were seen in the main pool the father was lying on two floater-rafts, and the boy was astride his dad's stomach. They were laughing and playing, first in the shallow end, then in the deep end. At a later time, Mr. Ollson came to the pool and found the two submerged in the deep end. He testified that he went into the pool but, being unable to swim, he got out and ran to his room to telephone for help. He testified that ultimately an ambulance attendant went into the water to get the bodies out. After the tragedy, Mrs. Haft was reported by Mr. Ollson to have exclaimed: ‘My husband, my son, I told them, I told them not to swim—’ or ‘—to stay out of the pool.’ According to Mr. Ollson, Mrs. Haft stated in substance that ‘they couldn't swim’ and ‘they couldn't put their faces under the water.’ Mr. Ollson also testified that the rafts which he had earlier observed were in the pool after the bodies had been removed. Other evidence was to the contrary.
The evidence established without conflict that, with defendants' knowledge, no lifeguard was in attendance at the pool and there was no sign advising users of that fact. There were no markings on the side of the pool indicating the break in the slope between the deep and shallow portions or the various depths of the water. There was no sign to the effect that children were not to use the pool without an adult in attendance. No telephone numbers of the nearest ambulance, hospital, fire or police rescue service, physician and pool operator were posted. No instructions that in case of need, manual or mouth to mouth resuscitation should be started and continued until the arrival of a physician or mechanical resuscitators were posted. No poles for rescue purposes were available.1 All of the above constituted violations of applicable sections of the Health and Safety Code or of title 17 of the California Administrative Code relating to swimming pools. To be blunt about it, there is no question that defendants' pool was little more than an artificial hole in the ground with water in it. Negligence was proved to the hilt. Unquestionably the only problem was one of causation.2
Plaintiffs make numerous assignments of error: 1. The evidence was insufficient to justify the verdict; 2. certain evidence was erroneously excluded; 3. certain instructions requested by plaintiffs should have been given; 4. the trial court should have directed a verdict on the issue of liability; 5. the trial court should have instructed the jury that defendant was negligent as a matter of law; and 6. the trial court erroneously refused to clarify a portion of the death certificates which were admitted in evidence.
Insufficiency Of The Evidence
Plaintiffs claim that the evidence incontrovertibly demonstrates liability. At the trial they proceeded on theories of negligence and wilful or wanton misconduct. The jury was properly instructed that if defendants were guilty of wilful or wanton misconduct, contributory negligence was no defense. (Cawog v. Rothbaum, 165 Cal.App.2d 577, 588–592, 331 P.2d 1063.)
As already noted there is no question of defendants' negligence. As far as wilful or wanton misconduct is concerned, while there is some evidence in the record that defendants' employees were aware of at least some of the statutory and regulatory requisites, obviously one cannot conclud as a matter of law that they acted, or rather failed to act, in the state of mind necessary to constitute wilful or wanton misconduct. In any event, both on the negligence and the wilful or wanton misconduct theories, proximate cause remained as an issue of fact. On the negligence theory, there was also, of course, the problem of contributory negligence.
On the issue of proximate cause plaintiffs present an interesting argument. Section 24101.4 of the Health and Safety Code provides that for pools, such as the one in question ‘lifeguard services shall be provided or signs shall be erected clearly indicating that such service is not provided.’ Plaintiffs realize that the failure to erect a sign indicating that there was no lifeguard service was not necessarily a cause of the deaths, because the decedents may have been aware of the absence of a lifeguard. They argue, however, that defendants who had complied with neither the basic mandate—a lifeguard—nor with the statutory alternative—the sign—cannot take the position that the question of proximate cause may be determined as if the negligence involved consisted only of the failure to erect the sign. Plaintiffs argue further, of course, that if the only negligent omission which may be considered on the issue of proximate cause is the absence of a lifeguard, it must be presumed as a matter of law that the lives of the two decedents would have been saved.
If the matter were properly before us we might very well hold that the defendants cannot escape from the consequences of the wrongful omission to provide lifeguard service by pointing to the fact that they did not comply with the statutory substitute either. But the point is not available to plaintiffs: at their request the court instructed the jury as follows: ‘Section 24101.4 of the Health and Safety Code of the State of California Provides That: For all swimming pools such as the subject pool, life guard service shall be provided, or signs shall be erected clearly indicating that such service is not provided.'3 Although the arguments of counsel are no part of the record before us, we have no doubt that the defense properly availed itself of this instruction to argue the issue of proximate cause from the point of view of the absence of the sign, rather than the lifeguard. The error was invited.
Furthermore we are unable to agree that the record made in this case proves as a matter of law that a lifeguard would have saved both lives. Plaintiffs rely on Lucas v. Hesperia Golf & Country Club, 255 Cal.App.2d 241, 63 Cal.Rptr. 189. In that case a judgment notwithstanding a verdict in favor of the defendant was reversed. In reply to the defendant's argument that there was no evidence that the failure to provide qualified lifeguard service or to post the telephone numbers of the emergency agencies was a proximate cause of the victim's death the court states: ‘* * * A breach of a statutory duty may be sufficient to give rise to an inference from which the jury may find that the injury was the proximate result of the violation. * * *’ (255 Cal.App.2d 252, 63 Cal.Rptr. 189.) No one can quarrel with that statement, but plaintiffs want us to go much further and to hold that the inference is not only permissible, but compelled. It may very well be that expert testimony or matters of which we may take judicial notice, but to which our attention has not been drawn, would remove any doubt that a qualified lifeguard would have prevented this tragedy. Unfortunately the record with which we must deal falls short of making the necessary showing. It is instructive that in Lucas the single decedent had been under water a very short time, but that immediate rescue operations, though not very expert, were unsuccessful. In this case there were two victims.
Excluded Evidence—The Death Certificate
The father's death certificate recites: ‘Drowned while trying to save son.’ Mark's says: ‘Drowned while playing in swimming pool.’ The trial court excised these statements on the ground that it would have been a denial of due process to admit them in evidence. The stated reason for the exclusion was erroneous. We do not understand Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 to forbid experimentation with the hearsay rule in civil cases. Nevertheless we may not find error, if the exclusion can be justified on any other basis. (Davey v. Southern Pacific Co., 116 Cal. 325, 329–332, 48 P. 117.)
The record shows that the coroner's investigator, Mr. Drake, who made the entries in question based his conclusion entirely on the fact that Mrs. Haft had told him that neither decedent could swim. It is not shown that he had any special expertise in reconstructing swimming pool accidents from information furnished to him. We have found no case which would classify the opinions expressed on the death certificates as ‘facts' within the meaning of section 10577 of the Health and Safety Code.4
Excluded Evidence—Inspection Reports
One of plaintiffs' witnesses was a Mr. Harrison who, as an inspector for the Riverside County Health Department, had made inspections at the motel on December 29, 1959, April 13, 1960 and September 21, 1961. His testimony was based ‘99%’ on pool inspection reports which he executed at the time of the inspections. The reports, as interpreted by him, indicated certain violations of the applicable statutes and regulations. The originals were delivered to three different individuals who signed for them. The signatories to the first two reports were never identified as being employees of defendants, but it is perhaps a fair inference that they appeared to be such to the inspector. The defendant's manager, Mrs. Blackburn, had earlier testified that the inspectors ‘always found things wrong. That was their job.’ She also admitted that everything that came to the motel went across her desk, but could not remember seeing the particular reports.
The inspector testified at some length concerning his findings on all three occasions, particularly the absence of lifesaving equipment, which, as he defined it, included, but was not limited to, a lifeguard or the statutory substitute sign and the posting of telephone numbers. The court, over objection, admitted both the testimony and the inspection reports. Voir dire examination of the inspector then developed that the first two inspections related to a different pool at the motel. The court then changed its ruling with respect to the reports made out after those two inspections and instructed the jury to disregard the inspector's evidence with reference thereto. The objection made at that time was that evidence relating to the first two inspections was ‘too remote.’ Later during the trial the court declared itself willing to reconsider the ruling, but did not do so, holding in addition that the evidence was too prejudicial. By reference to the possibility that some of the equipment missing at the time of the earlier inspections could have been made available in the meanwhile and have become missing again, the court also indicated, if somewhat obscurely, that admission of the evidence might open too many side issues. (Evid.Code § 352.)
Admissibility of the disallowed evidence is urged principally on the ground that it showed actual knowledge of the statutes and regulations involved and was therefore relevant on the issue of wilful misconduct.
The reports themselves merely have a space after the following words: ‘Life Saving and Safety Equipment. Present?’ On all three this is filled in ‘No.’ On their face they do not indicate just what is required. The inspector however testified that routinely, when delivering the report, he explains the requirements to the person who accepts the report. As noted, however, there is no evidence that the two persons to whom the excluded reports were delivered were anything but persons apparently employed by the motel at the time the reports were delivered. Just how probative this is on the issue of wilful misconduct by someone in charge at the time of the subject drowning is very questionable. Further, even if we may infer that the reports crossed Mrs. Blackburn's desk, it seems doubtful that plaintiffs were deprived of anything, since the report concerning the inspection closest in time and the testimony with reference thereto remained in evidence and was identical in all respects. Finally, of course, there is the fact that the jury heard the testimony that was struck before it was instructed to disregard it. We have no doubt that the ruling, even if incorrect, caused no prejudice.
Presumption of Ordinary Care: Plaintiffs requested that the court instruct the jury to the effect that the two decedents were presumed to have been exercising ordinary care. The requested instruction further read as follows: ‘* * * This presumption is not evidence. However, the effect of this presumption, is to affect [sic] the burden of proof, and this imposes upon the party against whom it operates the burden of proof as to the non-existence of the presumed fact. An inference is a deduction of fact that may logically and reasonably be drawn from another fact, or group of facts, found or otherwise established in the action. If the defendants in this case, have failed to carry the burden of proof as to the issues of alleged contributory negligence on the part of the decedents, or either of thim, you are instructed that an inference may be drawn that the decedents exercised ordinary care and were obeying the law, in their respective conduct, at the time of and immediately preceding the accident here in question.’
It has recently been noted that the presumption of ordinary care was not carried forward into the Evidence Code. (Hogue v. Southern Pacific, 1 Cal.3d 253, 259, 81 Cal.Rptr. 765, 460 P.2d 965.)
Plaintiffs, of course, did not need any presumption to shift the burden of proof on the issue of contributory negligence. The court properly instructed the jury that that burden was defendants'. The very vice of the former law on the subject was that it created a presumption in favor of the party who did not have the burden of proof. (Scott v. Burke, 39 Cal.2d 388, 405, 247 P.2d 313 [dissent]; Speck v. Sarver, 20 Cal.2d 585, 590–598, 128 P.2d 16 [dissent].)
The instruction would have been very confusing to the jury. Once the defendants failed to carry the burden of proof on contributory negligence, plaintiffs needed no inference that they exercised ordinary care. The instruction was properly refused.
BAJI 138: Plaintiffs requested and the court refused to give the first paragraph of former BAJI number 138.
It would have been error to give the requested portion without the qualifying paragraphs contained in BAJI number 138. (Koenig v. Coe, 163 Cal.App.2d 429, 431–435, 329 P.2d 721.)
Imminent Peril: Although we very much doubt that more than mere speculation would have justified an instruction on imminent peril with reference to the father's conduct, not even guesswork would support it with respect to the son's. Yet plaintiffs' case failed as to both decedents. Obviously there was no prejudice in not giving the instruction.
Nuisance: Plaintiffs requested the following instruction: ‘Anything that is injurious to health, is generally a nuisance. And, where the legislature has, within its constitutional power, declared a certain act or use of property to constitute a nuisance, or a public nuisance, such act or use of property constitutes a nuisance, or public nuisance, per se. Any person who suffers detriment by reason of a nuisance, may recover damages arising therefrom. The existence of a nuisance is independent of the existence of any negligence of the defendant in creating it, and liability in damages for a nuisance in [sic] absolute. * * *’
Section 24106 of the Health and Safety Code reads as follows: ‘Public nuisance. Any public swimming pool constructed, operated, or maintained contrary to the provisions of this article is a public nuisance, dangerous to health.’
This requested instruction raises a host of problems. Admittedly, in the context of this case in which negligence was so abundantly proved, the correctness of the premise that the mere legislative definition of the pool in question as a nuisance makes it unnecessary to prove negligence, is somewhat academic. (See Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 623, 195 P.2d 501; Rest., Torts, § 288; Prosser, Law of Torts (3d ed. 1964), pp. 594–598.) We also lay aside the fact that the instruction assumes as a matter of course that plaintiffs suffered injury ‘of a character different in kind from that suffered by the general public.’ (Ward v. Oakley Co., 125 Cal.App.2d 840, 850, 271 P.2d 536, 543.)
The proposed instruction would have informed the jury that any person who suffers detriment ‘by reason of’ a nuisance, may recover damages arising therefrom, thus skipping over the issues of contributory negligence and proximate cause. In California it has been held that contributory negligence is a defense to at least some charges of ‘nuisance,’ although the defendant's liability may be absolute. (Vasquez v. Alameda, 49 Cal.2d 674, 676, 321 P.2d 1; Curtis v. Kastner, 220 Cal. 185, 188–191, 30 P.2d 26. See generally 73 A.L.R.2d 1378.)
Finally the instruction, at least in the context of other instructions given, would make defendants liable on a nuisance theory without proof of proximate cause. While it may be argued that the words ‘by reason of’ are merely another way of expressing a proximate cause concept, the jury which was otherwise instructed on proximate cause in some detail, would not have so understood them.
Health and Safety Code, Section 16: The court refused to give section 16 of the Health and Safety Code reading as follows: “Shall' is mandatory and ‘may’ is permissive.' It is argued that this instruction should have been given so that the jury could better understand the meaning of the various statutes and regulations read to it.
While it may be of benefit to a sophisticated lawyer to learn that the word ‘shall’ is not used in a directory sense, we do not believe that the average juror needs to be told that ‘shall’ means ‘shall.’
Instructions On Statutory And Regulatory Violations
Plaintiffs requested two long instructions, the first embodying all the statutes which they wanted the court to read to the jury, the second the administrative regulations. The court gave neither instruction as such but embodied all the statutes and regulations it thought applicable in four instructions of its own. The instructions that were given are copied in the footnote.5 It will be noted that the court added the words ‘for all swimming pools such as the subject pool’ at the beginning of the applicable portion of section 24101.4 of the Health and Safety Code, thus leaving no doubt that all the statutes and regulations read to the jury applied to the pool in question.
It will also be noted that the court struck from its instruction on the effect of a violation of a statute or a regulation the qualifying language embodying the rule in Alarid v. Vanier, 50 Cal.2d 617, 624, 327 P.2d 897.
Plaintiffs do not furnish us with any reasons why the instructions given by the court were inadequate and why certain additional instructions on statutes and regulations which they requested should have been given. It would have been absurd to read some of the additional instructions requested. For example, plaintiffs wanted the court to read the statutory definition of ‘public swimming pool’ (Health & Saf. Code, § 24100); however, as noted the court informed the jury that the instructions given referred to the defendants' pool.
Normally we would ignore the entire point as not properly presented; however since the dissent is more charitable we discuss the refused instructions on statutes and regulations mentioned therein.
1. Foremost perhaps is the failure to give that portion of section 7820 of title 17 reading as follows: ‘No pool shall be used or available for use unless all of the requirements hereof are complied with.’ It is, of course, true that several requirements were not complied with and that the pool should not have been available for use. It is also undeniable that there would have been no drownings, had the pool been closed.
Apart from the portion of section 7820 under discussion, statutes or regulations violated were, theoretically, of three sorts: those which, if violated, (a) proximately caused the drownings as a matter of law; (b) could have caused the drownings, the question being one for the jury; and (c) could not possibly have caused the drown ings.6 Earlier in our opinion we disposed of the claim that the failure to provide lifeguard service proximately caused the drownings as a matter of law. It is not claimed that any other statute or regulation did so. Admittedly all other violations presented jury questions on the issue of proximate cause.
It surely is not the law that the case should have been submitted to the jury if the only evidence of negligence had been a violation of a regulation which could not conceivably have caused the deaths. Yet, section 7820 would have made it just as mandatory to close the pool and it would have been just as true that there would have been no drownings, had there been no pool available to decedents. To argue to the contrary would be the same as saying that the driver of an automobile whose brakes do not comply with the stopping distance requirements of section 26454 of the Vehicle Code and who, therefore, should not be operating the car at all (Veh.Code, § 24002), is negligent when involved in a head-on collision with a car which suddenly, a split second before the impact, crosses the center line.
It makes no difference that here it was a jury question whether the violations proximately caused the drownings. If the jury found for plaintiffs on any one of the violations on which it was instructed, that would have been the end of the proximate cause problem as far as it was concerned. However, if the court had also instructed it as requested, the jury would have felt compelled to find affirmatively on the issue of proximate cause although it had rejected plaintiffs' contentions with respect to each specific violation.7 We do not know just exactly what purpose the portion of section 7820 is intended to serve. It is, however, manifest that to read it to a jury in a personal injury action would be either unnecessary or misleading. It would be unnecessary if the jury affirmatively finds on the issue of proximate cause with respect to a specific violation. It would be misleading when it refuses to do so.
2. The court refused the following portion of section 7820: ‘Every pool shall be under the supervision of a person who is fully capable of, and shall assume responsibility for, compliance with all requirements hereof relating to pool operation, maintenance and safety of bathers * * *.’ It is hard to see just what a reading of that part of section 7820 would have added to plaintiffs' case. The regulation obviously does not impose a duty to have the responsible supervisor present at the pool at all times. The instructions that were given made it clear that defendants were legally responsible for violations of common law and statutory negligence and it was unnecessary to point to the failure to have a specific responsible supervisor, if indeed there was such a failure.8
3. The court did not give section 7775 of the regulations declaring motel pools to be covered by them. However, since the instructions that were given made it perfectly clear that they referred to defendants' pool, section 7775 would have been redundant.
Contributory Negligence Of Minor Decedent
Plaintiffs object because a certain instruction to the effect that the evidence showed no negligence on the part of the minor decedent and that no one else's negligence could be imputed to him, was refused.
We do not agree that there was no evidence of negligence on the part of Mark, though we would be very surprised if we were to learn that, as to him, the verdict was based on contributory negligence. Mark's birthdate was November 6, 1955. The plaintiff in Courtell v. McEachen, 51 Cal.2d 448, 453, 334 P.2d 870, was described as ‘5 years and 9 months old.’ On June 27, 1961, Mark was 5 years, 7 months and 21 days old. The evidence showed that he had some familiarity with water. He was certainly not incapable of appreciating its dangers as a matter of law.
As for the prohibition against imputing contributory negligence, the jury was otherwise instructed that neither of the heirs was negligent and that the father's negligence, if any, was not to be imputed to Mark.
Failure To Direct Verdict On Issue Of Liability
After both sides had rested plaintiffs moved ‘for a directed verdict on liability.’ What has been said so far with respect to contributory negligence, proximate cause and wilful misconduct disposes of the contention that the court's denial was error.
Failure To Direct Verdict On Issue Of Negligence
Before discussing this point it is well to set forth, at length, just what transpired: ‘MR. DANA: Our second motion is the jury should be instructed that the defendant was negligent as a matter of law. There is no evidence of an exculpatory nature indicating—THE COURT: Counsel, you know the Court is going to give instructions to the effect that if they find these sections were violated, such violation of the regulatory rules and statutory rules is negligence, is that what you have reference to? MR. DANA: No, sir. THE COURT: Go ahead. MR. DANA: I'm also asking the Court to make a legal deduction regarding approximate [sic] causation. THE COURT: Well, I don't think the Court can take away from the jury in this case the problem of approximate [sic] cause. MR. DANA: That is what my basis is now. THE COURT: I understand. MR. DANA: I indicated there is no basis upon which any reasonable person can differ that if the regulations were complied without repeating what I said on the matter of the motion of liability, that if these regulations were complied with, then the only reasonable deduction therefrom would be that they were negligent. * * *’ (Emphasis added.)
There are several reasons why plaintiffs' point lacks merit on this appeal.
1. It is very hard to tell just what plaintiffs requested. Counsel started out by moving for an instruction that defendant was negligent as a matter of law. The court then, apparently wanted to find out whether the motion was based on the admitted violations of regulations. Counsel for plaintiff denied that this was so and added: ‘I am also asking the court to make a legal deduction regarding approximate causation * * * that is what my basis is now.’ Certainly the trial court was justified in assuming that plaintiff wanted the jury directed not only on negligence, but also on proximate cause.
2. At a later stage during the conference in which the request was made, counsel for plaintiffs made it clear that he intended to argue to the jury that defendants were negligent for reasons apart from the statutory and regulatory violations.9 Certainly it cannot be claimed that defendant was necessarily guilty of common law negligence. Any instruction that defendant was negligent as a matter of law was therefore erroneous unless it confined itself to the statutory and regulatory violations. No such limited instruction was requested.
3. It is inconceivable that plaintiffs were prejudiced. The jury was instructed on all the pertinent statutes and regulations. It was told with no ifs and buts about it that if defendants violated any statute or regulation ‘you will find that such violation was negligence.’ All of the violations were proved without contradiction. Significantly the jury did not ask that negligence instructions be repeated when it returned to the courtroom. To predicate reversal on the point now under discussion would be to exhibit a gross lack of faith in the ability of a jury to put two and two together and come up with four.
Clarification Of Death Certificates
On the death certificates which were admitted in evidence the ‘place of injury’ was described as ‘private pool.’ Just before counsel started their arguments, plaintiffs' counsel pointed out to the court that the description could be misleading, since the pool in question was a public one, at least as far as the applicability of the statutes and regulations was concerned. The court stated that it would instruct the jury that the rules and regulations applied to the subject pool. Counsel for plaintiff declared himself satisfied: ‘* * * In that language that strong there will be no problem.’ We do not know whether or not the court kept its promise. The reporter's transcript indicates that the jury was instructed as follows: ‘The provision [sic] of the Health and Safety Code and California Administration [sic] Code just read to you all apply to the part [sic] that is the subject of this action.’ This instruction was given on the court's own motion after it had instructed the jury on various statutes and sections of the Administrative Code.10 Although the court apparently did not keep its promise in the manner intended, no harm was done. As noted, the very first instruction on an applicable statute had to do with section 24101.4, which section the court paraphrased as follows: ‘For all swimming pools such as the subject pool, life guard service shall be provided, or signs shall be erected clearly indicating that such service is not provided.’ (Italics added.) We have carefully inspected all other instructions pertaining to statutes and administrative regulations and there is nothing which could possibly have misled the jury into believing that one or more of them might be inapplicable to the defendants' pool because it was a private pool.
As the division among the members of the court shows, this has been a hard case to decide. We are frank to say that on the written record before us, had we the power to grant a motion for a new trial on the insufficiency of the evidence, we would probably do so at least as far as the cause of action based on the death of the minor is concerned. We have, of course, no such power. We are confined to the search for legal error and the determination whether such error, if found, demands a reversal in spite of article VI, section 13 of our Constitution. Having found no such error we can do only one thing.
The judgment is affirmed.
I feel that there should be a reversal only if this court were to embrace the proposition that in public swimming pool drowning cases as a matter of public policy there should be absolute liability, operative as against possible contributory negligence as well as against possible assumption of the risk, upon proof that a failure to comply with a statutory regulation could have been a proximate cause of, rather than was a proximate cause of, the drowning.*
A circumstance militating against making a decision at this policy level is that although this concept may have been the unarticulated basis of plaintiff's motion for a directed verdict, it has not been squarely and specifically presented to us as an issue on appeal.
More fundamentally, although there may be a trend in this direction and the projected doctrine may be socially desirable, it does not appear to be the present law. I feel that if there is to be a change it should be brought about by the Legislature or the Supreme Court.
The facts recited in the majority opinion tell only the before and after of a family tragedy. The double deaths and the absence of any percipient witness leave for inference only that which transpired at the time of the accident. On this record we must determine whether the jury's verdict is supportable, or whether it was the result of lack of instruction or erroneous instructions resulting from a misconstruction of applicable law.
The previously healthy and happy father and son drowned while using the swimming pool of defendants, as they were invited to do. The pool area was described as one kept neat and inviting to the motel patrons, with its lounging space, wading pool and swimming pool,1 and the 115° air temperature made the invitation to use nearly compulsory.
As noted, all the provisions for enjoyment were present for the motel's invitees, but there were no provisions for the safety of the pool users. Absent from this relaxing scene was every safety device required by law for a pool offered for use to the public.
While I endorse the conclusion in the majority opinion (p. 315) that ‘negligence was proved to the hilt. Unquestionably the only problem was one of causation,’ the magnitude of the statutory and regulatory violations by defendants requires specificity, for it is the totality of the violations which compels the conclusion of errors of law which demand reversal of this case.
The evidence established without conflict that, with defendant's knowledge, no lifeguard was in attendance at the pool, and no sign with the required wording in the required size letters was posted, warning that no lifeguard was in attendance.2 (Though pertinent provisions of the Health and Safety Code (hereinafter H & S Code) may have been quoted in the majority opinion, they will be set forth herein for ready reference.)
There was no evidence that safety equipment consisting of a life-saving ring attached to a rope, and a grappling pole with at least a 12 foot handle 3 were at the pool on the day in question. There was testimony that a life-saving ring attached to a rope was thrown into the pool by the gardener, who came in response to Mr. Ollson's telephone call to the motel office across the street, which telephone call was made after Mr. Ollson had gone into the pool in an abortive effort (being unable to swim) to get the bodies out of the water, then gotten out, and had run to his room to telephone for help; but where the gardener had obtained that ring, or the fact that it complied with specified requirements in any respect, was not established. Also, Exhibit 15 (‘Swimming Pool Inspection Form’ executed September 20, 1960, by which the Riverside Health Department gave to defendants notice of violations) established that as of that date, a considerable period of time prior to the accident, there was no life-saving or safety equipment present. Uncontradicted testimony established that the provisions of California Administrative Code, title 17 (hereinafter Administrative Code), section 7829, which specified safety requirements, included absence of the life-saving ring and grappling pole as well as the warning sign within this notice of violations.
In the majority opinion (footnote 1, p. 315), it is suggested that ‘Conflicting inferences may be drawn from the evidence as to whether or not a life ring was available,’ thus presenting an issue of fact. However, Administrative Code section 7829 requires that both a pole and a lifesaving ring attached to a rope be present, and it is conceded in the opinion that no pole was present; hence, the section was clearly violated, whether or not a life ring was present.4
Additional violations by defendants were: failure to indicate the break in the slope; failure to mark the water depth on the sides of the pool; also, failure to post a sign warning against the use of the pool by children without adults; failure to post telephone numbers of nearest ambulance, hospital, fire, or police rescue service, physician and pool operator, and failure to post diagrammatic illustrations of artificial respiration procedures.5
There is no question but that the swimming pool maintained by defendants was subject to the provisions of H & S Code sections 24100–24109 and Administrative Code sections 7775,6 7820, and 7829, which are regulations promulgated by the State Department of Health, and that the defendants were negligent in failing to comply therewith. The pool in question is classified as a ‘public‘7 swimming pool under H & S Code section 24100. For the type of pool involved in the case before us, lifeguard service must be provided unless a sign is posted indicating that such service is not provided (H & S Code § 24101.4, quoted here in footnote 2). ‘Lifeguard service’ means attendance by a qualified person to supervise the safety of pool users at all times that persons are permitted to engage in watercontact sports (H & S Code § 24100.1, quoted here in footnote 2). The pool must be maintained in a healthful and safe condition (H & S Code §§ 24101.2 and 24101.3),8 and the State Department of Public Health is the supervising agency (H & S Code § 24101).9 The pool owners' obligations relative to its maintenance are set forth in Administrative Code sections 7820 and 7829.10
As is readily apparent from the code sections quoted, the Legislature and the State Department of Health established requirements in these laws for the protection and safety of users of public pools to minimize the incidence of drowning, and made it mandatory for defendants to comply with all of these requirements, or close the pool: ‘No pool shall be used or available for use unless all of the requirements hereon are complied with.’ (Cal.Admin.Code, tit. 17, § 7820, quoted in full in footnote 10, supra.)
Posted signs at a public swimming pool which state that bathers use the pool at their own risk do not affect the duty under a State Department of Health rule to have a qualified lifeguard attending the swimming pool. (Lindsey v. DeVaux, 50 Cal.App.2d 445, 123 P.2d 144.) The only reasonable interpretation of H & SC section 24101.4 is that the services of a lifeguard are mandatory when no warning by sign that there is no lifeguard on duty is posted. While the section gives the pool owner a choice, the failure to provide such alternative warning sign imposes upon him the obligation to provide the lifeguard services. Lucas v. Hesperia Golf & Country Club, 255 Cal.App.2d 241, 251, 63 Cal.Rptr. 189, 195 recognizes, this mandatory duty, stating: ‘Although the evidence was conflicting, the jury could have found that a sign stating that lifeguard service was not provided was not posted on the premises on the date of the drowning. In such circumstances the statute requires that qualified lifeguard service be provided.’ (Emphasis added.)
The majority opinion discusses the issue of proximate cause and the court's giving the instruction on the statute requiring that either a lifeguard be present or defendant provide a sign warning of the guard's absence. It then states that this instruction permitted defendant to argue ‘that the question of proximate cause may be determined as if the negligence involved consisted only of the failure to erect the sign.’ Then it concludes that the plaintiffs' argument—with which the majority apparently agree—that the proximate cause results solely from the failure to have the lifeguard present is unavailable to plaintiffs. This is erroneous. Plaintiffs are not precluded from arguing the legal effect of H & S Code section 24101.4 even for the first time on appeal. Nor was the giving of the instruction in any way error, despite defendants' misleading argument as to its effect. For, as stated in Burdette v. Rollefson Construction Co., 52 Cal.2d 720, 725–726, 344 P.2d 307, 310:
‘Defendants contend, however, that the court cannot apply section 91.4404(a) to the facts of this case, on the ground that to do so would permit plaintiff to change the theory of her case on appeal. This contention is without merit. Although ordinarily a party may not deprive his opponent of an opportunity to meet an issue in the trial court by changing his theory on appeal, this rule does not apply when, as in this case, the facts are not disputed and the party merely raises a new question of law. Ward v. Taggart, 51 Cal.2d 736, 742, 336 P.2d 534; Panopulos v. Maderis, 47 Cal.2d 337, 340–341, 303 P.2d 738.’
Having failed to comply with either alternative, defendants seek to avoid liability by arguing that the decedents were the only people in the pool area, so the absence of a lifeguard was obvious. Then defendants urge that since absence of a lifeguard was obvious, a sign to that effect would have been a superfluous thing. This kind of argument is to say that under the facts in this case the Legislature has required a ridiculous act (posting of the warning sign). This ‘heads, defendants win’ and ‘tails, plaintiffs lose’ contention is without merit. Can defendants be heard to say that the Legislature was wrong when it recognized that a constant reminder of danger should be boldly displayed? Is it unreasonable for a patron who sees no lifeguard immediately present to conclude that his absence is but momentary, in the absence of a warning sign? How simple it would have been for the defendants to comply with the codes, particularly after written notice of the safety violations had been given to them by the State Health Department inspector some months prior to the tragedy.
In the case of Lucas v. Hesperia Golf & Country Club, 255 Cal.App.2d 241, 251, 63 Cal.Rptr. 189, 196, it is established that H&S Code sections 24100–24109 not only apply to the pool owned and maintained by the Lone Palm Motel, but that the dictates of the sections, ‘being designed to protect the safety of the class of persons of whom the victim was a member, a violation thereof constituted negligence per se. (Porter v. Montgomery, Ward & Co., 48 Cal.2d 846, 849, 313 P.2d 854; Finnegan v. Royal Realty Co., 35 Cal.2d 409, 416, 218 P.2d 17; Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 588, 177 P.2d 279; Harris v. Joffe, 28 Cal.2d 418, 424, 170 P.2d 454; Prosser, Torts 3d ed. p. 202.)’
Plaintiffs moved that the jury be instructed that defendants were negligent as a matter of law, based upon proved violations of sections of the H&S Code and Administrative Code pertaining to safety requirements. Specific reference by plaintiffs' counsel was to the absence of the lifeguard or warning sign and life-saving paraphernalia and, in the absence of compliance with those sections, failure to close the pool. They sought to have the court draw the conclusion for the jury that the statutes had been violated and that there was in evidence nothing of an exculpatory nature to excuse the violations. This was in complete compliance with the Lucas and Lindsey cases, supra. The question of contributory negligence, of course, was still to be left to the jury.11 This motion was denied by the court, and the effect of the denial was carried forward into general instructions which left to the determination of the jury the issue of whether or not there had been violations of the statutes by defendants.
On the issue of proximate cause, it is contended by defendants that their failure to comply with the requirements hereinbefore set forth was not the proximate cause of the deaths. This is without merit.
As stated in Lucas, supra (at p. 252, 63 Cal.Rptr. at p. 196):
‘* * * A breach of a statutory duty may be sufficient to give rise to an inference from which the jury may find that the injury was the proximate result of the violation. (Lindsey v. DeVaux, 50 Cal.App.2d 445, 123 P.2d 144; Finnegan v. Royal Realty Co., supra, 35 Cal.2d 409, 424, 218 P.2d 17; Rovegno v. San Jose Knights of Columbus Hall Assn., 108 Cal.App. 591, 595, 291 P.848.)
‘In Lindsey v. DeVaux, supra, 50 Cal.App.2d 445, 454, 123 P.2d 144, a like contention was rejected where a drowning occurred in a public swimming pool where no lifeguard service was provided. The court stated at pages 454–455, 123 P.2d at page 149: ‘Appellants assert that even assuming that the life guard was not on duty when Joe Lindsey was drowned, respondent has failed to show any causal connection between this alleged negligence and the accident complained of. In our opinion this contention is fully answered by the following language in the case of Rovegno v. San Jose Knights of Columbus Hall Assn., 108 Cal.App. 591, at p. 595, 291 P. 848, at page 849, in which case a hearing was denied by the Supreme Court:
“‘The most serious question for determination is the question of proximate cause—does the record disclose any evidence of negligence on the part of respondents proximately causing the death of appellant's son? As above stated, the only negligence alleged is the failure of respondents to provide a lifeguard or other person or persons skilled in lifesaving. Even had such a guard been present, respondents urge, there is no showing that the boy's life would have been saved. Just what would have happened had a life-guard been present is, of course, not capable of direct proof. It is largely a matter of speculation or of inference. Even so, it has been held that the question is one for the jury and not for the court.’” Prosser on Torts (3d ed.), Ch. 7, Causation, states (at p. 246):
‘Circumstantial evidence [footnote citing cases] or common knowledge may provide a basis from which the causal sequence may be inferred. * * * When a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved him; but the experience of the community permits the conclusion that the absence of the guard played a significant part in the drowning [Footnote citing Rovegno v. San Jose Knights of Columbus Hall (1930) 108 Cal.App. 591, 291 P. 848.]’
In 38 California Law Review (p. 369 at p. 382, Fn. 44), following a like comment to that quoted, Prosser states:
‘Cases are infrequent in which causation in fact is held to be established as a matter of law. Three such are Bissett v. South San Francisco Belt R. R., 67 Cal.App. 325, 227 Pac. 671 (1924); Traylen v. Citraro, 112 Cal.App. 172, 297 Pac. 649 (1931); Gallichotte v. California Mutual Building & Loan Ass'n., 4 Cal.App.2d 503, 41 P.2d 349 (1935) * * *.’
To the same effect, see Green, Rationale of Proximate Cause, at page 132.
In the instant case it was error for the court to leave the issue of proximate cause, as it related to defendants' negligence, for determination by the jury. Unlike Lucas, Rovegno, and Lindsey, supra, where there were conflicting facts from which the issue of proximate cause might be resolved, in the instant case the proximate causation was, like negligence, established as a matter of law. Where the only evidence establishes the inference that the negligence per se was the proximate cause of the deaths, there is no room (from that evidence) to draw a contrary inference; hence, proximate cause is established as a matter of law.12 In Gallichotte v. Calif. Mut. Etc. Assn., 4 Cal.App.2d 503, 509, 41 P.2d 349, 352 (cited with approval in Burdette v. Rollefson Construction Co., supra), the court said:
‘Not only is the inference that the fire set by respondent employees spread to the premises of appellant a logical and reasonable one, deducible from the proven facts, but it would seem to be the only one that could reasonably be drawn from those facts. And thus the question of proximate cause becomes one of law. Traylen v. Citraro, 112 Cal.App. 172, 297 Pac. 649; 45 Cor.Jur. 1321; Restatement of the Law of Torts [American Law Institute], § 434. There is here no question of conflict of evidence, for it would seem that the most favorable view that might be taken of the evidence adduced in behalf of defendants leads to but one conclusion, viz.: that the fire which caused the damage for which recovery is sought herein spread to the premises of plaintiff from the fire set by respondent employees on the vacant lot of respondent association. The trial court therefore erred in its conclusion to the contrary.’
While I firmly believe that proximate cause is established in this case as a matter of law and that the jury should have been so instructed, other errors requiring reversal are also present. These are discussed later herein in conjunction with the giving of certain instructions.
The majority opinion argues that some of the statutory violations on which plaintiffs' requests were denied fall in a class of negligence which ‘* * * (b) could have caused the drownings, the question being one for the jury,’ or (c) could not possibly have caused the drownings.' This fallacy is apparent when it is conceded that proximate cause of the deaths was inferable from the failure to have a lifeguard present, as it was defendants' mandatory duty to do. Not one shred of evidence controverted the inference of proximate causation. The court, of course, should instruct on all applicable statutes and regulations when they are within the requests of a party. The purpose, and a proper and correct one, for instructing on the refused sections or portions thereof was their materiality to the totality of gross regulatory violation, which bore on the issue of wilful and wanton misconduct. Even absent the notice of violation, can it be reasonably argued that defendants could have maintained the pool in question with the total absence of any safety equipment without knowledgeably disregarding the requirements of the Administrative Code and the Health and Safety Code?
The majority opinion concludes that the trial court's failure to instruct that defendants were negligent as a matter of law was not error. It urges that ‘It is very hard to tell just what plaintiffs requested.’ To me it seems crystal clear that ‘when an attorney says ‘Our second motion is the jury should be instructed that the defendant was negligent as a matter of law. There is no evidence of an exculpatory nature indicating * * *,’ and the court then interrupting, declares, ‘Counsel, you know the court is going to give instructions to the effect that if they find these sections were violated, such violations of the regulatory rules and statutory rules is negligence,’ and asks, ‘Is that what you have reference to?,’ and counsel says, ‘No, sir.,’ and later states that ‘the only reasonable deduction therefrom [violations] would be that they [defendants] were negligent,’ the attorney requested that a negligence-as-a-matter-of-law instruction be given. This was denied when the court declared he ‘would not take away from the jury the factual problems I think exist.'13 (Emphasis added.) Unfortunately, the court did erroneously leave the question of whether defendants had violated any of the sections and hence were guilty of negligence as an issue to be determined by the jury.
The second rationale of the majority conclusion centers around plaintiffs' counsel's refusal to ‘rely entirely upon violation of certain sections of the law referred to in the instructions as the basis for liability.’ The opinion suggests (at p. 323) that counsel wished to argue ‘common law negligence.’ To me, this reasoning falls short of full analysis. When the statutes and regulations are detailed with the specificity they are, there is nothing reasonably imaginable which could be remotely dubbed common law negligence which is not included within the statutes and regulations involved here. Of course counsel could not reasonably have bound himself when the court had just denied his motion to instruct on negligence as a matter of law. Had the court taken the issue of negligence of defendants from the jury, then and only then, would counsel have been put to a meaningful election.
Because plaintiffs' counsel refused to rely solely on the statutory violations on which the court stated it would instruct, and indicated that he wished to argue defendants' common law duties to invitees, the court rejected his request that no instruction on assumption of risk be given. This resulted in a double error. In the first instance, the court's modification of the instruction given relative to the inapplicability of assumption of risk as a defense was prejudicial error. It added: ‘However, as to any conduct of the defendants that did not constitute a violation of the statutes and regulations read to you, the decedents may be held to have assumed the risk thereof if you should so find under the instructions given you.’ The record is barren of any evidence of such ‘conduct.’ The fact that plaintiffs' counsel may have argued common law duties applicable to an invitee in no stretch of the imagination urged negligence of ‘conduct * * * that did not constitute a violation of the statutes and regulations,’ for it was plainly recognized by all that the statutes and ordinances were to protect decedents as member of the class the safety ordinances were intended to protect.
The Health and Safety Code and the Administrative Code set up a standard of care greater than that required by the common law, but nevertheless include within them that common law duty of care. Assumption of risk is not a good defense to an action based on the violations of safety laws intended to protect persons against the risk, the victim's assumption of which is asserted by the defendant, if the victim is a member of the class the safety laws are intended to protect. To allow such defense would be against public policy. (Lindsey v. DeVaux, supra, 50 Cal.App. at p. 456, 123 P.2d 144; 35 Cal.Jur.2d, Negligence, § 271, p. 819.) Since a plaintiff cannot assume the risk of the violation of a safety statute designed to protect him, it makes no sense to say that he can nevertheless assume the risk of the violation of a common law duty of care which is included within the statutory duty of care. A defendant cannot be allowed to argue that although he has violated his statutory duty, and to that extent may not avail himself of the defense of assumption of the risk, he has also violated his common law duty of care, in which case the defense of assumption of risk is available. Whenever a safety statute sets up a standard of care the same as, or higher than, the common law duty of care, the only rational result is that the defense of assumption of risk is unavailable whenever conduct prohibited by the statute is that engaged in, regardless of whether the plaintiff labels it as a violation of the statute or violation of the common law. Whatever it is called, it remains conduct which the Legislature has stated makes unavailable the defense of assumption of the risk. Any other result would make meaningless the rule of law that one cannot assume the risk of violation of a safety statute. This same error was carried over in a second instance to the instruction on wilful and wanton misconduct, where, generally speaking, assumption of risk is an available defense, though contributory negligence is not.
That being the case, the safety statute violations bar the defense of assumption of risk, and the wilful or wanton misconduct bars the defense of contributory negligence. Thus, were the jury to conclude that the defendants had wilfully or wantonly violated the safety statutes, neither defense—assumption of risk nor contributory negligence—would be available, and the only issue would be that of proximate cause before liability attached.
It is quite reasonable to envisage that it was the intent of plaintiff to argue wilful or wanton misconduct in addition to the statutory negligence, and it was to this intent he was referring. As I have stated, the negligence relied upon was the same statutory negligence, but allegedly augmented by the necessary intent or recklessness to raise that same negligent act to wilful or wanton misconduct. It is therefore obvious that the instruction given on wilful or wanton misconduct was erroneous as given, for only the defense of contributory negligence was stated to be unavailable under such principle. We have examined the court file, and observe the written instruction given by the court, which shows as follows:
‘Contributory negligence on the part of (a deceased) person is not a defense to a claim for damages for death due to wilful or wanton misconduct.’
The majority opinion, in its ‘third’ reason to excuse what to me appears to be patently reversible error, urges ‘no prejudice.’ The preceding discussion of the law answers any such conclusion. Also, the majority opinion states that to arrive at a conclusion adverse to its precepts ‘would be to exhibit a gross lack of faith in the ability of a jury to put two and two together and come up with four’ (p. 323). This certainly is not true. My conclusion is that the jury was never given the correct equation by which it was to determine the problem before it.
I conclude that, assuming the instruction on contributory negligence was proper (based upon an inference which could be drawn from evidence of playing on the rafts in the deep end of the swimming pool), the instructions on assumption of risk and on wilful or wanton misconduct were improper, and it is not possible to determine upon what theory the jury excused the defendants from responsibility. In addition, the court's refusal to give requested instructions on applicable Administrative Code sections14 and its refusal to instruct that negligence of defendants was established as a matter of law and that such negligence was a proximate cause of the deaths, constituted prejudicial error, for, in fact, the court's instructions were both erroneous and incomplete.
The judgment should be reversed.
1. Conflicting inferences may be drawn from the evidence as to whether or not a life ring was available.
2. After the jury had deliberated for some time it requested that the court reread the definitions of wilful and wanton misconduct, approximate cause, assumption of risk and contributory negligence. It is significant that no redefinition of negligence was requested.
3. Plaintiffs even requested and the court gave that portion of section 7829 of the regulations which prescribed the wording of the sign and the size of the letters.
4. For an analysis of somewhat conflicting cases in the area see People v. Holder, 230 Cal.App.2d 50, 53–54, 40 Cal.Rptr. 655.
5. ‘Section 24101.4 of the Health and Safety Code of the State of California Provides That: For all swimming pools such as the subject pool, life guard service shall be provided, or signs shall be erected clearly indicating that such service is not provided.‘Section 7829 of the Administrative Code of the State of California Provides That: Such signs shall be placed in plain view and shall state, ‘Warning—No life guard on duty,’ with clearly legible letters at least four inches high. In addition the sign shall state, ‘Children should not use pool without adult in attendance.’‘Section 24100.1 of the Health and Safety Code of the State of California Provides That: ‘Life Guard Service’ means the attendance, at all times that persons are permitted to engage in water-contact sports, of one or more life guards who hold Red Cross or Y.M.C.A. senior life guard certificates or have equivalent qualifications and who have no duties to perform other than to superintend the safety of participants in water-contact sports * * *.‘Section 7829 of the California Administration [sic] Code Provides in Part That: At all pools diagrammatic illustrations of artificial respiration procedures shall be posted where clearly visible from the nearby deck and shall be protected against the elements. Also, the location and telephone number of the nearest ambulance, hospital, fire or police rescue service, physician and pool operator shall be kept similarly posted together with instructions that in case of need, manual or mouth-to-mouth artificial respiration should be started immediately and continued until a physician arrives or mechanical resuscitators are applied. Every swimming pool shall be equipped for safety, and rescue purposes with one or more light, strong poles (bamboo or other) with blunt ends or hooks, not less than 12 feet in length, and one or more life rings, approximately 17 inches in outside diameter, accessible for use. Such life rings shall have attached to them a 3/16 inch line long enough to span the maximum width of the pool. * * *‘Section 7788 of the California Administration [sic] Code Provides That: Depth of water shall be plainly marked at maximum and minimum points, points of break in slope between the deep and shallow portions and at intermediate increments of depth, spaced at not more than 25-foot intervals. Depth markers shall be in numerals of 4 inches minimum height and of a color contrasting with background. Markers shall be on both sides and ends of the pool at, or above, the water surface on the vertical pool wall and except for pools 20 feet or less in width, on the edge of the deck or walk next to the pool. * * *‘The provision [sic] of the Health and Safety Code and California Administration [sic] Code just read to you all apply to the part [sic] that is the subject of this action‘If you find that a party to this action violated any of the statutes or regulations, just read to you, you will find that such violation was negligence.‘However, in this action, a violation of the statutes and regulations just read is of no consequence unless it was a proximate cause of the deaths of the decedents or either of them.’ The emphasized portions of the instructions represent handwritten insertions or additions to the regular printed form. The portions crossed out are found on the printed form.
6. To avoid misunderstanding: We are only talking about statutes and regulations enacted for the purpose of protecting victims from the hazards of drowning. (Nunneley v. Edgar Hotel, 36 Cal.2d 493, 498, 225 P.2d 497.) It is clear, however, that under particular circumstances even the violation of such a statute or regulation may have nothing whatever to do with a particular death. For example: the operator of the pool posts a sign indicating the lack of lifeguard service, but does not post the emergency telephone numbers. If it is proved that the death occurred long before anyone who could have placed an emergency telephone call came on the scene, no one could contend that there was even a jury question on the issue of proximate cause.
7. Of course, as a practical matter, the jury never would have started to consider the specific vioations, since the requested portion of section 7820 amounted to a directed verdict on the issue of proximate cause.
8. Mrs. Blackburn, the manager and president of the corporation which operated the motel apparently considered the operation of the pool one of her duties.
9. ‘MR. DANA: In view of the violations of the statutes that are involved, I feel that no instruction pertaining to the assumption of risk at all should be given in any form. I want to be sure that we made our position clear on that. THE COURT: Are you stating for the record that you rely entirely upon violation of certain sections of the law referred to in the instructions as the basis for liability? If you rely entirely upon those statutory requirements as the basis for your claim, the Court will not give assumption of risk instruction, but you have not seen fit to so indicate. MR. DANA: We have asked for the invitee and these other aspects and I see what the Court—THE COURT: Only under those circumstances will the Court give that instruction but I want you to state for the record you are relying entirely upon the violation of the statute as the basis for your plaintiffs' claim or I will not [sic] instruct the jury on assumption of risk. MR. LAWSON: Could we have just a moment? THE COURT: Surely. MR. DANA: Your Honor, we have considered the Court's position and I think I understand it fully and I am not prepared to say that I don't rely on more than the statute because I was going to argue on other things I had in mind. I think we asked for other features and I do want to be permitted to do so. THE COURT: All right. Very well. * * *.’One of the arguments in Justice Stephens' dissent appears to depend on a reading of this passage radically different from ours'.
10. Undoubtedly the word ‘part’ was intended to be ‘pool.’ We have, on our own motion, caused the superior court file to be lodged with us and have inspected the original instruction in that file. Unfortunately, it reads the same as the reporter's transcript.
FOOTNOTE. For example in the instant case the uncontradicted proof was that there was an absence of a sign warning that there was no life guard and that there was no life guard. If the first omission is considered as having made the presence of a life guard mandatory, his absence could have been a proximate cause of the drowning. Under the projected doctrine being discussed, these factors having appeared as a matter of law, absolute liability would have been invoked by the court and only the issue of damages would have been submitted to the jury.Considering that the case was properly submitted with the questions of proximate cause and contributory negligence for decision by the jury, the errors of the trial court were either invited or not prejudicial.
1. The majority opinion (p. 315) describes the pool as one which ‘was little more than an artificial hole in the ground with water in it.’ I doubt that this description would coincide with the description given the pool by Commodity Credit, Inc., the owners of this 90-Unit Palm Springs motel, which was acquired from Horace Heidt.
2. Cal.Admin.Code, tit. 17, § 7829: ‘Lifeguard service shall be provided in accordance with the Health and Safety Code [§§ 24100.1 and 24101.4] * * *. Where no lifeguard service is provided, the warning sign shall be placed in plain view and shall state ‘Warning—No Lifeguard on Duty’ with clearly legible letters, at least 4 inches high * * *.'H & S Code § 24101.4: ‘Lifeguard service shall be provided for any public swimming pool which is of wholly artificial construction and for the use of which a direct fee is charged. For all other swimming pools, lifeguard service shall be provided or signs shall be erected clearly indicating that such service is not provided.’H & S Code § 24101.1: “Lifeguard service,' as used in this article, means the attendance, at all times that persons are permitted to engage in water contact sports, of one or more life-guards who hold Red Cross or Y.M.C.A. senior lifeguard certificates or have equivalent qualifications and who have no duties to perform other than to superintend the safety of participants in water-contact sports.' (An individual's use of the pool such as in the instant case is included in the term ‘water-contact sports.’ (Lucas v. Hesperia Golf etc. Club, 255 Cal.App.2d 241, 63 Cal.Rptr. 189.)
3. Cal.Admin.Code, tit. 17, § 7829: ‘* * * Every swimming pool shall be equipped for safety and rescue purposes with one or more light, strong poles (bamboo or other) with blunt ends or hooks, not less than 12 feet in length, and one or more life rings, approximately 17 inches in outside diameter, accessible for use. Such life rings shall have attached to them a 3/16-inch line long enough to span the maximum width of the pool. The line shall be stored when not in use in such a way as to prevent kinking or fouling * * *.’
4. By this comment I do not intend to intimate that the evidence would support a finding of the ring's presence, in any event, for it certainly does not.
5. Cal.Admin.Code, tit. 17, § 7829: ‘* * * In addition, the sign shall also state ‘Children Should Not Use Pool Without An Adult In Attendance.’ * * * At all pools diagrammatic illustrations of artificial respiration procedures shall be posted where clearly visible from the nearby deck and shall be protected against the elements. Also, the location and telephone number of the nearest ambulance, hospital, fire or police rescue service, physical and pool operator shall be kept similarly posted together with instructions that in case of need manual or mouth-to-mouth artificial respiration should be started immediately and continued until a physician arrives or mechanical resuscitators are applied * * *.'
6. Cal.Admin.Code, tit. 17, § 7775: ‘These regulations shall apply to all pools as defined herein, except private pools maintained by an individual for the use of his family and friends. The regulations shall apply to, but are not limited to * * * pools at hotels, motels, resorts, * * *.’
7. While the death certificates designate the pool as ‘private,’ there is little doubt but that the court treated the pool as ‘pubilc’ throughout the instructions.
8. H & SC § 24101.2: ‘Every person operating or maintaining a public swimming pool must do so in a sanitary, healthful and safe manner.’H & SC § 24101.3: ‘Every public swimming pool, including swimming pool structure, appurtenances, operation, * * * lifesaving apparatus, measures to insure safety of bathers, * * * shall be such that the public swimming pool is at all times sanitary, healthful and safe.’
9. H & SC § 24101: ‘The State Department of Public Health has supervision of sanitation, healthfulness, and safety of public swimming pools.’
10. Cal.Admin.Code, tit. 17, § 7820: ‘Every pool shall be under the supervision of a person who is fully capable of, and shall assume responsibility for, compliance with all requirements hereof relating to pool operation, maintenance and safety of bathers. No pool shall be used or available for use unless all of the requirements hereof are complied with. Routine (e. g., daily or weekly) operating procedures shall be permanently posted in a location accessible to and frequented by the operator. Manufacturers' instructions for operation and maintenance of mechanical and electrical equipment shall be kept available for the operator.’ (Emphasis added.)Cal.Admin.Code, tit. 17, § 7829: ‘Lifeguard service shall be provided in accordance with the Health and Safety Code which provides:‘Section 24100.1. ‘Lifeguard Service,’ as used in this article means the attendance, at all times that persons are permitted to engage in water-contact sports, of one or more lifeguards who hold Red Cross or Y.M.C.A. senior lifeguard certificates or have equivalent qualifications and who have no duties to perform other than to superintend the safety of participants in water-contact sports.'‘Section 24101.4. Lifeguard service shall be provided for any public swiming pool which is of wholly artificial construction and for the use of which a direct fee is charged. For all other swimming pools, lifeguard service shall be provided or signs shall be erected clearly indicating that such service is not provided.’Where lifeguard service is provided, the number of lifeguards provided shall be adequate to continuously maintain surveillance over the bathers. [¶] Where no lifeguard service is provided, the warning sign shall be placed in plain view and shall state ‘Warning—No Lifeguard on Duty’ with clearly legible letters, at least 4 inches high. In addition, the sign shall also state ‘Children Should Not Use Pool Without An Adult In Attendance.’ [¶] * * *. At all pools diagrammatic illustrations of artificial respiration procedures shall be posted where clearly visible from the nearby deck and shall be protected against the elements. Also, the location and telephone number of the nearest ambulance, hospital, fire or police rescue service, physician and pool operator shall be kept similarly posted together with instructions that in case of need manual or mouth-to-mouth artificial respiration should be started immediately and continued until a physician arrives or mechanical resuscitators are applied. [¶] Every swimming pool shall be equipped for safety and rescue purposes with one or more light, strong poles (bamboo or other) with blunt ends or hooks, not less than 12 feet in length, and one or more life rings, approximately 17 inches in outside diameter, accessible for use. Such life rings shall have attached to them a 3/16-inch line long enough to span the maximum width of the pool. The line shall be stored when not in use in such a way as to prevent kinking or fouling. * * *' (Emphasis added.)
11. Except if such negligence was an element of a finding of wilful or wanton misconduct. This is discussed infra, at page 332.
12. The concurring opinion suggests a rule far beyond that which appears to me to be obligatory in the instant case.
13. The majority opinion concludes that the interjection by counsel, ‘I am a'so asking the court to make a legal deduction regarding approximate causation,’ either made the whole motion[s] unclear or combined the issues of negligence and proximate cause into motion. (Emphasis added.) This conclusion is the result of misreading the court's interjected declaration of intent and its concluding question. It likewise fails to note the plural issues which the court intended to (and erroneously did) leave to the jury, i. e., negligence and proximate cause.
14. Administrative Code section 7775 (declaring motel pools to be within the Administrative Code regulations);Administrative Code section 7820 (declaring that no pool shall be used or available for use unless all of the requirements of the sections relating to safety of bathers are met);The first portion of Administrative Code section 7829 (incorporating H & S Code §§ 24100.1 and 24101.4, which require that ‘lifeguard service shall be provided or signs shall be erected clearly indicating that such service is not provided’).These instructions should have been given as they have a bearing on proximate cause; also, reference to them should have been made in instructing that negligence was established as a matter of law.
KAUS, PRESIDING JUSTICE.