Burgert v. Tietjens

Decision Date03 July 1974
Docket NumberNo. 73-1928.,73-1928.
Citation499 F.2d 1
PartiesLeo BURGERT and Mrs. Leo Burgert, Plaintiffs-Appellees, v. Jerry TIETJENS and Terry Tietjens, Individually and as partners d/b/a Sycamore Springs Recreation Area, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

J. Roger Hendrix, Topeka, Kan. (Herbert A. Marshall, Topeka, Kan., on the brief), for plaintiffs-appellees.

Howard A. Spies, Topeka, Kan., for defendants-appellants.

Before LEWIS, HOLLOWAY and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Jerry Tietjens and Terry Tietjens, individually and as partners d/b/a Sycamore Springs Recreation Area, appeal from a judgment in a diversity action tried to the court, awarding the parents of the decedent, (appellees here), Robert Burgert, the sum of $30,539.95 under the Kansas Wrongful Death Statute, K. S.A. 60-1901 to 60-1905 (1967).

On August 24, 1969 the Burgerts were engaged in a farming operation near Pawnee, Nebraska. That day their son Robert, age 12, travelled with a church-sponsored group of youngsters and several adult supervisors from Pawnee City, Nebraska, to the Sycamore Springs Recreation Area owned and operated by the appellants near Sabetha, Kansas. The group had planned a late after-noon of swimming, picnicking, and rollerskating at the facility following their arrival.

At approximately 4:00 p. m. following arrival, Robert and a companion, John Neal, went to the swimming pool. They paid admission and shared a basket to store their clothes while swimming. Robert was last seen alive by John Neal at approximately 5:00 p. m. while playing in the shallow end of the pool. At approximately 5:30 p. m. an adult supervisor of the church group called the children from the pool for a picnic supper. Some of the youngsters, including John Neal, did not leave the pool area immediately, however. When young Neal departed the pool at about 6:00 p. m. he discovered that Robert's clothes were still present in their shared basket. Neal returned to the pool area where he unsuccessfully searched for Robert before proceeding to the picnic. He did not mention to any of the adults that Robert's clothes were still in the basket until some time later that evening. While Robert apparently did not eat at the picnic supper, his absence went unnoticed.

A search for Robert began when one of the appellants' lifeguards discovered Robert's clothes still in the basket at approximately 9:30 p. m. after the pool had been closed. His body was discovered by divers shortly thereafter at the bottom of the pool in about six feet of water. Futile attempts were made at that time to resusitate the boy. Cause of death was determined as drowning by the doctor summoned to the scene; however, no autopsy was performed and there was a conflict in the testimony as to how thorough an examination was performed by the doctor in reaching his conclusion. The condition of the body indicated that Robert's death had occurred more than two and one-half hours prior to its recovery from the pool. Prior to the discovery of the body, none of the lifeguards, occupants of the pool, or spectators had observed any signs of distress in the pool area.

The pool was approximately 75 feet in width and 140 feet in length, divided by a rope with colored buoys near the middle of the pool, separating the shallow from the deep end. The depth of the pool ranged from two feet in the shallow end to ten feet in the deep end. It was supplied by water from natural springs which had resulted, up until a year prior to Robert's death, in a condition of such poor water clarity that the bottom of the pool could not be seen. The appellants had installed a water filtration system a year prior to Robert's death to alleviate this situation. However, for unexplained reasons, on the date in question the water clarity was such that a person could not see below the surface of the water beyond a maximum depth of two and one-half to three feet, and could not, therefore, see the bottom of the pool at the point where Robert's body was discovered. Various witnesses described the water condition that day as being "cloudier than usual" (Tr., Vol. 3, p. 39); "very murky" (Tr., Vol. 3, p. 127); "cloudy; kind of green" (Tr., Vol. 3, p. 39). This water condition was known to appellants prior to the time the pool was opened to the public at 1:00 p. m. on August 24, 1969.

The court below found that: the cause of Robert's death was in fact drowning; Robert was a business invitee in the swimming pool, and as such was owed a duty by the appellants to use ordinary and reasonable care for his safety; the appellants breached that duty when they allowed patrons in the pool on August 24, 1969, at a time when the water was so cloudy that the bottom of the pool could not be seen; that Robert's body would have been visible from the surface had it not been for the cloudy condition of the water; that proper safety standards would require a lifeguard to be able to see the bottom of the pool; that patrons should not be allowed in a swimming pool if the condition of the water is such as to render it impossible to see the bottom thereof in the deep end; that appellants' lifeguards could not perform their duty of underwater surveillance and rescue because of the water condition; that the cloudy condition of the water constituted negligence on the part of the appellants, and that this negligence was the proximate cause of Robert's death. Further, the Court found neither Robert Burgert himself, nor the appellees, to be guilty of contributory negligence, and that Robert had not assumed any risk by swimming in the pool.

On appeal it is contended that the trial court erred: (1) in finding that Robert met his death by drowning; (2) in finding that the water condition constituted negligence and was the proximate cause of Robert's death; (3) in not charging Robert with contributory negligence or assumption of the risk; (4) in assessing the amount of damages awarded; and (5) in establishing standards of care for swimming pool operators absent statutory or case authority to support those standards.

I.

Appellants contend the trial court erred in determining that appellees had shown by a fair preponderance of the evidence that Robert met his death by drowning. This contention is apparently predicated upon discrepancies in the record as to the thoroughness of the examination made of Robert's body by Dr. Virgil E. Brown, the attending physician, preceding his conclusion that the cause of death was drowning. Testimony as to the scope of this examination ranged from that of Dr. Brown, on deposition, as intensive, consuming 10 to 15 minutes, during which he checked for eye signs, examined skin coloration, made use of a stereoscope, checked for water in the lungs, etc., to that of other witnesses as simply a cursory examination of the general appearance of Robert's body lasting five minutes or less. Without Dr. Brown's testimony, appellants allege, the evidence reveals only that Robert Burgert died, and not that he died from drowning.

The findings of a trial court will not be reversed on appeal unless they are clearly erroneous. Transwestern Pipeline Company v. Kerr-McGee Corporation, 492 F.2d 878 (10th Cir. 1974); Woods v. North American Rockwell Corporation, 480 F.2d 644 (10th Cir. 1973); Rule 52(a) Fed.R.Civ.P. 28 U.S.C.A.

Apart from the testimony of Dr. Brown, which the trial court indicated it had not exclusively relied upon, the record reveals the following: (1) Robert was in good health prior to August 24, 1969; (2) his body was discovered in six feet of water at the bottom of the pool; (3) his body was stiff and blue when brought out of the water; (4) the hands were closed over the abdomen and the legs flexed at the knees; (5) no bruises or abrasions indicating external trauma were found on the body; and (6) no suggestion other than death by drowning was offered or inferred from these facts. The existence of these factors, in combination with the finding of death by drowning made by Dr. Brown, leads us to conclude there was substantial evidence to support the finding of death by drowning made by the trial court. The testimony by the appellants' expert witness, a pathologist, to the effect that drowning was only a possibility, does not materially detract from the sufficiency of this evidence.

II.

Appellants contend the trial court erred in finding that the water condition constituted negligence and was the proximate cause of Robert's death.

Appellants correctly cite Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 P. 902 (1931), for the proposition that under Kansas law the owner of a swimming pool open to the public is not an insurer of those making use of the pool. Such owner is liable, however, for injury or death due to his negligence. Swan v. Riverside Bathing Beach Co., supra, at 903. Kansas has defined negligence as the failure to exercise care as the circumstances justly demand. Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590 (1947); Elliot v. Chicago, Rock Island and Pacific Railroad Company, 203 Kan. 273, 454 P.2d 124 (1969). The standard of care for the owner of a public beach is "to use reasonable care under the circumstances and to provide appliances reasonably fitted for the purpose for which they were to be used." (Emphasis added). Vukas v. Quivira, Inc., 166 Kan. 439, 201 P.2d 685, 688 (1949).

The Kansas courts have defined proximate cause as "that which naturally leads to, and which might have been expected to be directly instrumental in, producing the result." Rowell v. City of Wichita, supra, 176 P.2d at 596, citing Consolidated Electric Light & Power Co. v. Koepp, 64 Kan. 735, 68 P. 608 (1902). While the negligence charged must have been the proximate cause of the injury, Rowell v. City of Wichita, supra; Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973); Steele v. Rapp, 183 Kan. 371, 327 P.2d 1053 (1958), the inquiry as to whether...

To continue reading

Request your trial
16 cases
  • Rawson v. Sears, Roebuck & Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 10, 1987
    ... ... Bechtel Corp., 599 F.2d 382, 386 (10th Cir.1979); see also Burgert v. Tietjens, 499 F.2d 1 (10th Cir.1974) ...         With that standard of review in mind, we turn now to an examination of Rawson's ... ...
  • Farmers Alliance Mut. Ins. Co. v. Bakke
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 30, 1980
    ...including decisions of other states, New Mexico and federal decisions, and the general weight and trend of authority. Burgert v. Tietjens, 499 F.2d 1 (10th Cir. 1974). The resident District Court's views on this question of New Mexico law, of course, carry extraordinary force on this appeal......
  • City of Aurora, Colorado v. Bechtel Corp., 77-1858
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 29, 1979
    ...of Colorado in the manner in which the Supreme Court of Colorado would, if faced with the same facts and issue. See: Burgert v. Tietjens, 499 F.2d 1 (10th Cir. 1974); Symons v. Mueller Company, 493 F.2d 972 (10th Cir. 1974); Cottonwood Mall Shopping Center, Inc. v. Utah Power & Light Compan......
  • Reighley v. International Playtex, Inc.
    • United States
    • U.S. District Court — District of Colorado
    • March 18, 1985
    ...would, if faced with the same facts and issue. City of Aurora, Colorado v. Bechtel Corp., 599 F.2d 382 (10th Cir.1979); Burgert v. Tietjens, 499 F.2d 1 (10th Cir. 1974) (citations omitted). In examination of the question the decisions of other courts, state and federal, must be considered a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT