Carreira v. Territory Hawai`i

• Decision Date: 28 April 1954
• Docket Number: NO. 2921.,2921.
• Citation: 40 Haw. 513
• Parties: EMIL CARREIRA AND DOLINDA CARREIRA v. TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

40 Haw. 513

EMIL CARREIRA AND DOLINDA CARREIRA

v.TERRITORY OF HAWAII.

NO. 2921.

Supreme Court of the Territory of Hawai‘i.

Argued October 23, 1953.

Decided April 28, 1954.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. R. B. JAMIESON, JUDGE.

Syllabus by the Court

Where the facts are disputed and reasonable men might differ on the facts or the inferences which might be reasonably drawn from the facts, the question of negligence is left to the jury under proper instructions; but where there is no conflict in the evidence and but one inference can be drawn from the facts, it is the duty of the court to pass upon the question of negligence and proximate cause as questions of law.

Operators of bathing pools owe a duty of ordinary care in the supervision, construction and maintenance of the pool but are not insurers of the lives of swimmers using the pool, and the burden of proof is on the plaintiff to show that the defendant is guilty of negligence which was the proximate cause of the injury or damage to the plaintiff.N. K. Chung ( Chung, Louis & Chee on the briefs) for plaintiffs in error.

W. Yee, Deputy Attorney General (also on the brief), for defendant in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY STAINBACK, J.

Plaintiffs were the parents of a twelve-year old boy, Robert Carreira. On May 27, 1949, Robert Carreira was a student in the sixth grade at the Liholiho school, a public school of the Territory of Hawaii. On this date a school picnic and outing had been arranged at Waikiki beach in the area near the public baths. Robert Carreira and his twin brother Ralph received written permission from their mother to attend the picnic and to go swimming. The group consisted of approximately one hundred twenty-five to one hundred fifty sixth-grade students and they were accompanied by four school teachers. There were also many children from several other schools, about five hundred all together.

The group settled down in the vicinity of the Waikiki Natatorium and after visiting the zoo those with permission from their parents were allowed to go swimming. Robert went to the natatorium to swim at approximately 10:30 a.m. in blue denim trousers. Robert was a good swimmer. In charge at the natatorium was the manager, a matron and a lifeguard. The four teachers from time to time visited the pool to make frequent inspections. Robert and the other children left the pool to have lunch at approximately 11:45 a.m. During the rest period one of Robert's teachers told him it was very dangerous to swim in long trousers. After lunch Robert asked for and received permission from one of his teachers to go swimming again for a quick dip and he went back to the natatorium between 12:30 and 12:45 p.m. He was accompanied by his brother Ralph. Ralph did not go in swimming but watched his brother swim and play on the raft with other boys, approximately fifteen being on the raft. He saw them throwing each other off the raft. At that time there were approximately five hundred persons in and about the pool and it was impossible to see the bottom of the pool because the silt of the natural bottom was stirred up by the swimmers. The lifeguard was on duty at the pool from 9:00 a. m. until 1:00 p. m. when he left for lunch. At the time the guard left for lunch there was no one in or about the pool except older persons, the children having been called out of the natatorium.

The teachers rounded up the students to return to the school about 1:00 p. m. and Robert was missing. He was seen by one of the teachers after lunch and before the rounding up of the children sitting on one of the benches near the entrance to the bathhouse. Somewhere between 1:10 and 1:15 p. m. one of the teachers, Mrs. Chung, with some of the students, began looking for Robert. They looked for him in the dressing room; he was not there. Mrs. Chung found a shirt and someone told her it belonged to Robert. Mrs. Chung then immediately notified the matron of the natatorium that one of the boys was missing. This took place at approximately 1:15 p. m. Some of the children told Mrs. Chung that Robert had gone to the zoo or perhaps to Kuhio beach. When unable to find Robert after a brief search, Mrs. Chung reported back to the superintendent who advised her to get in touch with the lifeguard who was having lunch at the concession. Mrs. Chung contacted the lifeguard about 1:20 p. m. The lifeguard immediately left his lunch, returned to the natatorium, telephoned Mr. Adams, the captain of the lifeguards, at Kuhio beach and went to pick up Mr. Adams. The lifeguard returned with Mr. Adams at approximately 1:30 p. m. In the meantime, several volunteer lifeguards started diving for the missing boy. After the regular lifeguard returned with Mr. Adams, they were all lined up and commenced systematic dives in search of the missing boy. On the third dive a volunteer lifeguard located the body of Robert and brought him to the surface. The City and County emergency hospital was notified and an ambulance arrived about 2:00 p. m. As soon as Robert was taken from the pool artificial respiration was given him for approximately fifteen minutes until the arrival of the ambulance. Upon the arrival of the ambulance with the doctor and two attendants, the resuscitator was used for approximately an hour and a half when the doctor advised that it was then useless.

Suit against the Territory was filed on June 7, 1951, under the provisions of Act 143, Session Laws of Hawaii 1951, waiving the Territory's immunity. The complaint in substance charged negligence on the part of the Territory in operating and maintaining a swimming pool known as the War Memorial Natatorium of Honolulu in that it did not maintain sufficient lifeguards to protect the swimmers and users of the pool. It further alleged that the defendant encouraged and induced Robert Carreira to attend the picnic of the class of the sixth grade of the Liholiho school and carelessly supervised and directed the picnic of the students of the Liholiho school, and that while lawfully using the pool and through no neglect on his part Robert Carreira was drowned in the pool so negligently maintained and operated by the defendant; that the defendant knew or should have known that reasonable care required sufficient lifeguards or other protective measures to safeguard the life or lives of the children using the pool, and that the defendant failed and neglected to provide such lifeguards. Plaintiffs prayed for damages in the pecuniary value of the services of Robert Carreira during his minority in the sum of $10,500.

At the conclusion of plaintiffs' case the defendant made a motion to dismiss which was granted.

The single question before this court is whether the trial judge committed error in dismissing plaintiffs' suit.

Where the facts are disputed and reasonable men might differ on the facts or the inferences which may be reasonably drawn from the facts, the question of negligence is left to the jury under proper instructions; but where there is no conflict from the evidence and but one inference can be drawn from the facts, it is the duty of the court to pass upon the question of negligence and proximate cause as questions of law. (Ferrage v. H. R. T. & L. Co., 24 Haw, 87;Martin v. Wilson, 23 Haw. 74;Ward v. I.-I. S. N. Co., 22 Haw. 488,aff'd232 Fed. 809.)

Operators of bathing beaches or pools owe a duty of ordinary care in the supervision, construction and maintenance of the pool but are not insurers of the lives of swimmers.

As stated in Curcio v. City of New York, 275 N. Y. 20, 9 N. E. (2d) 760, 762: “The city was not an insurer of the lives of those who used the pool. Its only duty was to exercise ordinary care in its supervision, construction, and maintenance of the pool. * * * The duty of...