Cassio v. Creighton University, 87-310

• Decision Date: 11 August 1989
• Docket Number: No. 87-310,87-310
• Citation: 446 N.W.2d 704,233 Neb. 160
• Parties: , 56 Ed. Law Rep. 601 Rose CASSIO, Special Administrator of the Estate of Michael R. Cassio, Deceased, Appellant and Cross-Appellee, v. CREIGHTON UNIVERSITY, a Nonprofit Corporation, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 704

446 N.W.2d 704

233 Neb. 160, 56 Ed. Law Rep. 601

Rose CASSIO, Special Administrator of the Estate of Michael R. Cassio, Deceased, Appellant and Cross-Appellee, v. CREIGHTON UNIVERSITY, a Nonprofit Corporation, Appellee and Cross-Appellant.

No. 87-310.

Supreme Court of Nebraska.

Aug. 11, 1989.

Syllabus by the Court

1. Trial: Evidence: Appeal and Error. A party may not complain on appeal of the admission of evidence to which no objection was made at the time of the offer.

2. Ordinances: Pleadings: Negligence. Evidence of an ordinance and its violation, although not pled, is admissible, if properly offered, under a general averment of negligence when it is relevant to a material issue in the case.

3. Appeal and Error. Upon appeal involving a question of law, the Supreme Court has an obligation to reach a conclusion independent of that reached by the trial court.

4. Recreation Liability Act. The Nebraska Recreation Liability Act, Neb.Rev.Stat. §§ 37-1001 et seq. (Reissue 1988), does not apply to independent indoor recreational facilities, including indoor swimming pools.

5. Negligence. An actor is contributorily negligent if (1) he or she fails to protect himself or herself from injury; (2) his or her conduct concurs and cooperates with the defendant's actionable negligence; and (3) his or her conduct contributes to his or her injuries as a proximate cause.

6. Directed Verdict. In order to sustain a motion for a directed verdict or for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

7. Directed Verdict. In considering the evidence for the purpose of a motion for a directed verdict or for judgment notwithstanding the verdict, the party against whom a motion is made is entitled to have the benefit of every inference which can reasonably be drawn from the evidence; if there is any evidence in favor of the party against whom the motion is made, the case may not be decided as a matter of law.

8. Negligence: Liability: Words and Phrases. The doctrine of assumption of risk involves a choice made more or less deliberately and negatives liability without reference to the fact that the party seeking recovery may have acted with due care, whereas the defense of contributory negligence implies the failure of the party seeking recovery to exercise due care.

9. Negligence. Where one knowing and comprehending the danger voluntarily exposes himself or herself to it, although not negligent in so doing, he or she is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom.

10. Jury Instructions: Appeal and Error. On appeal, the Supreme Court examines instructions given to determine whether they are a correct statement of the law.

11. Jury Instructions: Appeal and Error. It is not error on the part of the trial court to refuse to give a requested instruction if the substance of the request is in the instruction actually given.

12. Jury Instructions: Proof: Appeal and Error. In order to establish as error the trial court's refusal to give a tendered instruction, the party complaining is under a threefold burden to show that he or she was prejudiced by the court's refusal, that the tendered instruction is a correct statement of the law, and that the instruction is applicable to the evidence in the case.

13. Trial: Witnesses: Evidence. A witness without qualifications may not be permitted to offer an opinion regarding a matter requiring scientific, technical, or other specialized knowledge.

14. Trial: Witnesses: Evidence. Testimony of a witness in the form of opinion which is pure speculation should not be received in evidence.

Debra R. Nickels and James R. Welsh, of Welsh & Sibbernsen, Omaha, for appellant and cross-appellee.

John R. Douglas, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee and cross-appellant.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Plaintiff, special administrator of the estate of Michael R. Cassio, Cassio's sister, appeals from the order of the district court granting defendant Creighton University's motion for a new trial. This followed a jury verdict in favor of the plaintiff in a wrongful death action in the amount of $118,940. Creighton cross-appeals from the rulings of the district court overruling its motions for directed verdict and judgment notwithstanding the verdict.

Plaintiff simply assigns as error the action of the trial court which granted Creighton a new trial. On cross-appeal Creighton contends the trial court erred in not sustaining its motions for a directed verdict or for a judgment notwithstanding the verdict because (1) the evidence established as a matter of law that the plaintiff's action was barred by the Nebraska Recreation Liability Act, Neb.Rev.Stat. §§ 37- Cassio, plaintiff's decedent, was a 31-year-old bachelor who had been in the U.S. Air Force for the past 10 years. His mother lives in New Jersey, and Cassio would visit home as his duties would permit, would call or write home usually once a month, and would send his mother $100 every month. Considering the mother's life expectancy of 15.04 years, and calculated at a 6-percent interest rate, this monthly payment would have a present worth of $11,673.59. In addition, Cassio's hospital bill amounted to $1,217.14, and the funeral bill was $2,927.

1001 et seq. (Reissue 1988); (2) the evidence conclusively established that Cassio was guilty of contributory negligence more than [233 Neb. 162] slight sufficient to bar recovery; and (3) the evidence established as a matter of law that Cassio was guilty of assumption of the risk.

On May 14, 1984, Cassio went swimming in Creighton's pool located in the Kiewit Center. He put on scuba gear which consisted of a compressed air tank, a mask, a mouthpiece and regulator, a buoyancy compensator, a weight belt, and fins. He swam laps with his scuba gear on for 30 to 45 minutes. After that, he moved to the deep end of the pool and began doing breathing exercises, repeatedly submerging and coming up again.

Only one lifeguard, Catherine Dalipe, was on duty while Cassio was in the pool. Apparently, she had taken and passed a course at Creighton in advanced lifesaving. She had been sitting on the elevated guard stand when Cassio first came into the pool, but later moved down to a deck chair beside the pool.

At about 4:45 p.m. Dalipe's supervisor, Mike Hardigan, came in, and they talked for about 10 minutes. While they were talking, their attention was directed to the deep end of the pool by Kevin Croft, who had been working out with weights in the vicinity of the pool. He had seen a girl, whose identity is unknown, walk past the deep end of the pool, look down, and then step back and stick her hand to her mouth. She walked over to Dalipe and Hardigan, and they got up and started running. At that time, Croft jumped over the fence between the pool and the weight lifting area. When Croft got to the pool, Dalipe was diving in. According to Croft, Cassio was lying on his back on the bottom of the pool with his tank and weight belt off his body, but his buoyancy compensator was still strapped on. Dalipe tried to lift Cassio off the bottom, but could not because he was too heavy. She came back up and said she was hurt. Dalipe testified that Cassio was still wearing his scuba gear. Croft then dove in and brought Cassio up and got him out of the pool with Hardigan's assistance. Croft noticed a pink champagne-like froth coming out of Cassio's mouth, and Cassio's face was cyanotic. CPR was attempted, paramedics arrived, and Cassio was taken to the hospital, where he was pronounced dead.

Plaintiff's petition alleged several acts of negligence on the part of Creighton University relating to the operation of its pool. Creighton in turn answered by alleging that the action was barred by the Nebraska Recreation Liability Act and that Cassio was guilty of contributory negligence and assumption of risk in diving without a partner. At the close of plaintiff's case, leave was granted plaintiff to strike the specific acts of negligence originally alleged and to simply state that Creighton was negligent in "failing to properly life guard its swimming pool while Michael Cassio was in this pool on 5/14/84."

At trial the plaintiff offered in evidence Omaha ordinances which stated that two lifeguards were required to be present at pools the size of Creighton's and which also required a pool of Creighton's classification to be under the immediate supervision of a certified operator. Evidence was also introduced indicating Creighton's violation of the ordinances by having only one lifeguard on duty and no certified operator. Creighton specifically stated that it had no objection to the reception into evidence of those ordinances and regulations.

Following the verdict in favor of the plaintiff, Creighton filed a motion for judgment notwithstanding the verdict or alternatively for a new trial. In its motion for a Subsequent to Creighton's motion for judgment notwithstanding the verdict or for a new trial, plaintiff moved, pursuant to Neb.Rev.Stat. § 25-852 (Reissue 1985), to amend the petition to conform to the evidence.

new trial Creighton contended, among other things, that the trial court erred in admitting evidence of violation of the ordinances because violation of the ordinances had not been specifically pleaded; in allowing a lay witness with no medical training to give his opinion, over objection, as to the cause of death; and in refusing to submit as part of the jury instruction on present cash value the present worth table and examples contained in NJI 4.13, although specifically requested to do so by Creighton.

The trial court sustained Creighton's motion for a new trial, finding that "the pleading of a city...