Bateman v. Glenn

• Decision Date: 14 October 1969
• Docket Number: No. 42105,42105
• Citation: 459 P.2d 854,1969 OK 158
• Parties: James BATEMAN, d/b/a Elmwood Park, Plaintiff in Error, v. Sharon Kay GLENN, a minor, by and through her father and next friend, Edward D. Glenn, and Edward D. Glenn, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 854

459 P.2d 854

James BATEMAN, d/b/a Elmwood Park, Plaintiff in Error, v. Sharon Kay GLENN, a minor, by and through her father and next friend, Edward D. Glenn, and Edward D. Glenn Defendants in Error.

No. 42105.

Supreme Court of Oklahoma.

Oct. 14, 1969.

Duvall, Head, McKinney & Travis, Rex K. Travis, Oklahoma City for plaintiff in error.

Harry R. Palmer, Jr., Oklahoma City, for defendants in error.

DAVISON, Justice.

This appeal involves an action by the plaintiff Sharon Kay Glenn, a minor (age 13 years), by and through her next friend, against the defendant James Bateman, to recover damages for personal injuries she received in the swimming pool operated by the defendant Bateman, when an unidentified boy jumped into the pool and collided with her head, whereby she suffered a fractured skull. Her father, Edward D. Glenn, also joined in the action to recover for expenditures for her hospital and medical expenses. The parties will be referred to by their trial court designations or by name.

Plaintiffs alleged the defendant maintained a tower in the swimming pool with three platforms constructed therein, at various heights and open only toward the east or deeper portion of the pool, from which customers jumped or dived into the water. Plaintiffs charged the defendant was negligent in maintaining such a tower whereby customers could only jump into the water on top of each other, and was negligent in failing to post warning signs, and in failing to provide persons to supervise the customers' use of the tower. Plaintiffs alleged the tower did not comply with the regulations promulgated by the State Board of Health, as authorized by 63 O.S.Supp.1963, § 1--1014, relative to public bathing places, requiring a minimum distance of 8 feet between (diving) boards. Defendant answered by general denial, a denial of negligence, and alleged Sharon was guilty of contributory negligence and that she was familiar with the pool and had assumed the risk of any dangers inherent in the use of the pool.

The trial judge instructed the jury on the issues presented by the pleadings and evidence, including contributory negligence, and assumption of risk, and proximate cause. The jury was also instructed relative to the regulations of the Board of Health requiring diving facilities at public bathing places to have adequate head room and diving depth, and that the horizontal distance between 'diving' boards should not be less than eight feet. The jury was instructed that the defendant's pool was subject to these regulations and that a violation thereof was negligence in and of itself, but that it must appear from the evidence that the violation was the proximate cause of the injury. The jury returned a verdict for defendant. Plaintiff filed a motion for new trial. The court sustained the motion and defendant has appealed.

In sustaining the motion for new trial, the trial judge stated her reasons as follows:

'Irregularity in the proceedings of the jury in that the jury was apparently confused, as evidenced by the written questions propounded by the jury, by reason of which the plaintiffs were prevented from having a fair trial.'

'Prejudicial error as a result of defendant's closing argument.'

The evidence reflects that the tower was located at about the center of the rectangular pool, with the lowest platform about level with the water, and a second platform about 6 1/2 feet above it, and a third platform about 6 1/2 feet higher; that a number of diving boards were located at the east end of the pool; that defendant had owned and operated the public pool for about 13 years; that Sharon had been swimming at the pool since she was a 'little girl,' with the tower in place; and that on the day of the accident she and a girl friend had paid the admission fee and had entered the pool and jumped from the third platform. The evidence reflects that it was the practice, and known to Sharon and practiced by her, for persons jumping from the second and third levels to yell 'Off second' or 'Off third' in order, in her words 'To let people you were getting ready to jump so they wouldn't jump on you, so that what happened to me wouldn't happen to them.' There was testimony that lifeguards were present and one was near the tower and that they did caution or restrain children on some occasions. Sharon jumped from the third level, after shouting 'Off third' and as she was coming up to the surface, a boy jumped from the second level and collided with her head. Apparently the happening did not attract the attention of the lifeguard. Sharon, knowing she was hurt, swam to the edge of the pool, and she and her girl friend left the premises a short time later, without telling anyone of the accident. The next day she was operated on for removal of a blood clot from her brain area.

Defendant contends that under the circumstances neither of the reasons given by the court is sufficient nor a valid ground for granting a new trial.

From our examination of the record we are convinced that the two reasons given by the court, although separately stated in the order granting a new trial, were in fact related and were so considered by the trial court.

The incident from which the trial judge believed the jury was confused consists of the following described...