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PHILLIPS v. SOUTHEAST 4-H EDUCATIONAL CENTER, INC. et al. (59798)


PHILLIPS

v.

SOUTHEAST 4-H EDUCATIONAL
CENTER, INC. et al.


January 8, 1999
Record No. 980444

MISTY ANN HAYS PHILLIPS, EXECUTOR OF THE ESTATE
OF RICHARD WILLIAM PHILLIPS, DECEASED

v.

SOUTHEAST 4-H EDUCATIONAL CENTER, INC., ET AL.

FROM THE CIRCUIT COURT OF SUSSEX COUNTY
Robert G. O’Hara, Judge
Present: Carrico, C.J., Compton, Lacy, Hassell,
Keenan, and Koontz, JJ., and Stephenson, Senior Justice

OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON,
JR.


The principal issue in this appeal is whether
the trial court erred in striking the plaintiff’s evidence at the
conclusion of the plaintiff’s case-in-chief. We also determine
whether the trial court erred in excluding certain evidence
proffered by the plaintiff’s expert witness.

I

Misty Ann Hays Phillips, Executor of the Estate
of Richard William Phillips, deceased (the Plaintiff), filed an
action against Southeast 4-H Educational Center, Inc. (the
Center), Susan Morlino, and Nicole Gipson (collectively, the
Defendants) for the wrongful death of Richard William Phillips.
The Plaintiff alleged that Richard’s death by drowning was caused
by the Defendants’ negligence.

The case was tried to a jury, but, at the
conclusion of the Plaintiff’s case-in-chief, the trial court
struck the Plaintiff’s evidence and entered judgment for the
Defendants. We awarded the Plaintiff this appeal.

II

In reviewing the trial court’s decision to
strike the Plaintiff’s evidence, we will view the evidence, and
all reasonable inferences drawn therefrom, in the light most
favorable to the Plaintiff. See Mullins v. Virginia
Lutheran Homes
, 253 Va. 116, 119, 479 S.E.2d 530, 532-33
(1997).

The Center operated a 25-yard swimming pool in
Sussex County. Morlino was the pool’s senior lifeguard and
manager, and Gipson was a lifeguard. Both lifeguards had the
required certificates in lifesaving and cardiopulmonary
resuscitation (CPR).

Richard was 32 years old. He was about six feet
four inches tall and a strong swimmer.

Morlino, who was called by the Plaintiff as an
adverse witness, testified that, on the day before Richard
drowned, she had observed him swim underwater the length of the
pool and back several times. When Richard completed each lap, he
came to the surface of the water, took a breath of air, turned,
and swam another lap. After several laps, Richard stopped
swimming. Before coming to the water’s surface, however, he had
held his breath and had lain on the bottom of the pool in the
shallow end for a brief period.

The following day, May 30, 1993, Morlino and
Gipson were on duty as lifeguards. Morlino again observed
Richard, who was accompanied by Richard Wayne Parkllan, swimming
in the pool. After about 30 minutes, Parkllan got out of the pool
and sat on the deck. Richard, who was then the only person in the
pool, continued to swim.

As he had done the previous day, Richard began
to swim laps underwater. He continued to swim laps for 15 to 20
minutes while Morlino watched. After completing one of the laps,
Richard stood in the shallow end of the pool, which is three feet
deep, and then went back under the water. As Richard sat under
the water, Morlino noticed bubbles coming to the surface. When
the bubbles disappeared and Richard did not come to the water’s
surface, Morlino became concerned. Within "moments,"
Morlino jumped into the pool to ascertain Richard’s condition.
With Parkllan’s assistance, Morlino pulled Richard out of the
pool and onto the deck. Gipson telephoned for emergency response
personnel.

Richard was not breathing and had no pulse, so
Morlino and Parkllan alternated in administering CPR.
Approximately 10 minutes later, they were relieved by a rescue
squad member. While CPR was being administered, Richard vomited,
but he remained unconscious. The rescue squad took him to a
hospital where he was pronounced dead. An autopsy revealed that
the cause of death was drowning.

The Plaintiff called Gerald M. Dworkin as an
expert witness. Dworkin was qualified as an expert in water
safety and as an emergency medical technician (EMT) with training
in defibrillation. Dworkin testified that, in his opinion, the
two lifeguards breached the acceptable standard of care in
failing to sit in the elevated lifeguard chairs, to recognize
signs of passive drowning, and to effect a timely rescue. Dworkin
further testified that it was his opinion that the Center’s
management breached the acceptable standard of care in failing to
have site-specific training and to have a standard operating
procedure.

III

We first consider whether the trial court erred
in excluding a portion of Dworkin’s testimony. Dworkin would have
opined that, after a victim stops breathing, his heart continues
to beat for several minutes. Dworkin would have opined further
that, if Richard had been removed from the water within 30
seconds of the onset of drowning, he would have had a heartbeat,
CPR would have been unnecessary, and artificial respiration would
have been successful. The trial court excluded this testimony,
concluding that this involved a medical opinion and that Dworkin
was not qualified to render such an opinion.

Whether a proffered expert opinion should be
excluded is a matter that rests within the sound discretion of a
trial court. The court’s decision to exclude such testimony will
not be reversed on appeal unless the record clearly establishes
that the expert was qualified to express the opinion. Grubb
v. Hocker, 229 Va. 172, 176, 326 S.E.2d 698, 700 (1985).

Although the record shows that Dworkin was an
EMT and experienced in CPR and water safety, we cannot say that
the record clearly establishes that he was qualified to opine
that Richard would have survived had he been removed from the
water within 30 seconds of the onset of drowning. The opinion
requires technical knowledge in the field of medicine, and,
therefore, we cannot say that the trial court abused its
discretion in excluding this testimony.

IV

We now consider the principal issue in this
appeal; that is, whether the trial court erred in striking the
Plaintiff’s evidence. Ordinarily, negligence and proximate cause
are jury issues. They become questions of law, however, when
reasonable minds could not differ about the conclusions to be
reached. Poliquin v. Daniels, 254 Va. 51, 57, 486
S.E.2d 530, 534 (1997).

Generally, the owner of a swimming pool to
which the general public is invited for a fee

must exercise ordinary care for the safety
of his patrons. He must make reasonable provisions to guard
against those accidents which common knowledge and experience
teach are likely to befall those engaged in swimming and
other aquatic sports for which he has provided facilities,
but the owner is not an insurer of the safety of his patrons.

Blacka v. James, 205 Va. 646,
649, 139 S.E.2d 47, 50 (1964).

Depending upon the circumstances involved, an
owner of a swimming facility may have a duty "to station
qualified lifeguards at the [facility] to supervise patrons and
rescue those in peril," and, "[i]n such case, the
[facility] owner is liable for the negligence of lifeguards in
the performance of their duties." S & C Company
v. Horne, 218 Va. 124, 128-29, 235 S.E.2d 456, 459 (1977).
A lifeguard’s duty is twofold. "First, he has some duty to
observe swimmers for signs of distress; second, he has some duty
at some point to attempt rescue of those in distress." Id.
at 129, 235 S.E.2d at 459. In the performance of the second duty,
a lifeguard must exercise the care that an ordinarily cautious
lifeguard would exercise under similar circumstances. Id.

In the present case, Morlino, called by the
Plaintiff as an adverse witness, testified that she and Gipson
were able to see Richard from their positions on the pool’s deck,
that they were watching Richard the entire time he was in the
pool, and that they responded promptly when they realized that
Richard was in distress. Morlino’s testimony is uncontradicted;
therefore, the Plaintiff is bound by it. See Retail
Property Investors, Inc.
v. Skeens, 252 Va. 36, 41,
471 S.E.2d 181, 183 (1996). The only evidence in the present case
to suggest that the Defendants were negligent comes from the
opinions of Dworkin.

The Plaintiff’s theory of recovery is that
Morlino and Gipson were negligent in not recognizing Richard’s
unconsciousness sooner and that, if they had, Richard could have
been saved. Dworkin testified that, when Richard was lying
motionless on the bottom of the pool and bubbles were coming to
the surface of the water, this "was a pretty good indication
that there was a problem." Dworkin further testified that
lifeguards should be active in their surveillance by practicing
the "10/20 second rule." According to Dworkin, this
rule requires a lifeguard to assess every situation for 10
seconds before determining whether action is necessary and
reassessing that situation within 20 seconds. He opined that,
because the lifeguards "observed the bubbles, observed the
lack of movement, and actually timed this for a minute’s time
before they . . . effected the rescue," they
breached the 10/20-second rule and, therefore, were negligent.

Viewing, as we must, Dworkin’s testimony in the
light most favorable to the Plaintiff, we conclude that the
Defendants’ alleged negligence is a jury issue.

But mere proof of an accident and
negligence does not establish a cause of action. There must
be in addition a causal connection between the negligence and
the . . . death complained of. Evidence tending to
show a causal connection must be sufficient to remove the
case out of the realm of speculation and conjecture and into
the realm of legitimate inference before submitting it to a
jury for its determination.

Blacka, 205 Va. at 650, 139 S.E.2d at
50. Thus, in the present case, the Defendants’ alleged negligence
must have a causal connection with Richard’s drowning, and, in
the absence of a showing that the Defendants’ negligence was the
proximate cause of the death, there can be no recovery.

We have carefully examined the record to find
evidence tending to show that the Defendants’ alleged negligence
proximately caused Richard’s death, and we find none. At oral
argument, Plaintiff’s counsel was asked to pinpoint in the record
evidence of causation. Counsel directed this Court to a portion
of Dworkin’s testimony wherein he testified that, if Richard had
had a pulse when he was removed from the water and artificial
respiration had been timely undertaken, then "there [was] a good
chance that [he was] going to recover." (Emphasis
added.) We can only speculate, however, when Richard’s pulse
stopped, and we do not think that an undefined "good
chance" of recovery removes the issue of causation from the
realm of speculation and conjecture. Therefore, we hold that the
trial court did not err in striking the Plaintiff’s evidence.

V

Accordingly, the trial court’s judgment will be
affirmed.

Affirmed.

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