City of Aurora v. Weeks
| Decision Date | 24 June 1963 |
| Docket Number | No. 20039,20039 |
| Citation | 152 Colo. 509,384 P.2d 90 |
| Parties | The CITY OF AURORA, a municipal corporation, Plaintiff in Error, v. Jo Ann L. WEEKS, Defendant in Error. |
| Court | Colorado Supreme Court |
Sheldon & Nordmark, Richard C. McLean, Denver, for plaintiff in error.
George L. Zoellner, George A. Hinshaw, Aurora, for defendant in error.
This writ of error is directed to a judgment secured in a trial to the court in favor of defendant in error Jo Ann L. Weeks in the amount of $11,571.70 for injuries suffered in a swimming pool accident. We will refer to the parties as they appeared in the trial court, where plaintiff in error City of Aurora was defendant and defendant in error Weeks was plaintiff.
The record discloses that on July 4, 1958 plaintiff, who was then 31 years of age, along with members of her family, entered a swimming and diving pool compound owned and operated by defendant. They purchased tickets at approximately 1:00 P. M. and all were thereafter admitted into the swimming pool area. After remaining for a short while in the swimming pool, plaintiff and her two brothers proceeded to use the diving boards located in another pool a short distance away.
The diving pool had three boards at one end, the one in the middle being 13 feet high and the ones on either side each being about three feet above the water and about 9'4"' from their respective sides of the pool. A sign with large lettered words clearly visible on the side of the center diving board warned swimmers to dive only from the end of the board. Located in the diving pool at a depth of 34 inches to the center thereof, and beneath the surface of the water, were a number of lights for illuminating the water at night. These lights were set in metal boxes recessed into the concrete sides of the pool. Each light was covered by a glass lens 12 inches in diameter and approximately one-fourth inch thick. The one involved in this accident was four and a half feet from the rear wall of the pool and on the right side of the low diving board to the right of the center board.
Although plaintiff was able to swim she had not before attempted any diving. She was preceded into the water by her two brothers and then she went onto one of the side diving boards.
The testimony reveals that plaintiff was somewhat nervous once on the board and that she walked back and forth at least once and possibly several times. She finally jumped, feet first, from the board and came up at the side of the pool without having touched the bottom of the pool. At this point she discovered she had injured her right knee.
There was a conflict in the evidence as to just what happened prior to plaintiff's jumping off the board. Defendant's lifeguard testified that when he saw her on the board he realized she was an inexperienced diver and was being made nervous by her two brothers who were calling to her and urging her to jump. The lifeguard stated that he blew his whistle and shouted at her to be sure to go off the end of the board. Plaintiff and her two brothers, however, testified that no one urged her to jump and that none of them heard a whistle. There was also a conflict in the testimony as to where on the board plaintiff jumped from. She maintained that it was near the end of the board, but off to the side. The lifeguard stated it was from the middle of the board and clearly to the side.
The lifeguard further testified that when plaintiff jumped her legs were pulled up towards her body and her arms stretched out as if she were reaching for the side of the pool. When she hit the water he said he heard a loud cracking noise as if she had hit the side of the pool.
Plaintiff testified that she did not feel herself hit the side and only was aware that she had injured her knee as she came up out of the water. She was then helped out of the pool, first aid was given and an ambulance called. She was eventually taken to St. Luke's hospital where it was determined that she had lacerations on her right knee and a complete severance of the patillar tendon that runs from the knee cap to the leg bone, as well as lacerations extending through the ligaments and into the joint of the right knee. Two operations were required to repair her injuries.
Following the accident the diving pool was closed and a search made for the cause of the injury. It was at this time that a broken light lens was discovered in the pool wall located on the side of the pool nearest the diving board used by the plaintiff and where plaintiff had jumped into the water.
Among plaintiff's witnesses was defendant's pool manager who was called as an adverse witness. He testified that as a matter of routine the lights in the pool were checked each evening by turning them on and off several times to see if they all would light; that they had been so checked the night before this accident; that usually no other check was made unless employees were in swimming and noticed something 'out of place' or occasionally when swimming they would reach down and feel the lights; and that the bottom of the pool was vacuumed every Sunday morning and sometimes more often.
Defendant called as a witness the lifeguard who was on duty at the time of the accident. When the accident occurred he was sitting on an elevated chair on the side of the pool into which the plaintiff jumped. His chair was located half way down the length of the pool. He testified, as previously noted, to what occurred when plaintiff jumped, and in addition stated that the bottom of the pool had been cleaned the night before and he himself had checked all the lights that morning. Further testimony was given to the effect that the pool was constructed in a standard manner, according to general specifications for swimming and diving pools.
Included in the evidence presented were written interrogatories directed to defendant and answered by Ray Johnston, Clerk-Treasurer of the City, who knew about the pool construction and operation. Two of these and their answers are pertinent here. They state:
'Interrogatory No. 26: 'State what efforts the defendants took, if any, to make this particular illuminating device safe for the plaintiff.'
'The answer is: 'Normal inspection and maintenance and, when necessary, repairs.'
'Interrogatory No. 29: 'State if the cover over the illuminating device where the plaintiff was injured was such that it could be broken by contact on July 4, 1958.'
'The answer is: 'The cover could be broken by violent contact under certain conditions although it was a standard piece of equipment.''
At the conclusion of the trial the court made findings of fact and conclusions of law which read in part as follows:
'The plaintiff contends that her injury was caused because of some defect in the diving pool, whereas the City contends that she jumped in a fashion contrary to the rules of the pool, in such a fashion that...
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Uptain v. Huntington Lab, Inc.
...would turn on its head the traditional rule against presuming liability from the mere filing of a lawsuit. See City of Aurora v. Weeks, 152 Colo. 509, 384 P.2d 90 (1963). I fail to see any rational connection between the lack of litigation during the first ten years of the marketing of the ......
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...an accident does not necessitate a finding of negligence. See Pence v. Chaudet, 163 Colo. 104, 428 P.2d 705 (1967); City of Aurora v. Weeks, 152 Colo. 509, 384 P.2d 90 (1963); National Construction Co. v. Holt, 137 Colo. 208, 322 P.2d 1046 (1958). Under these circumstances, it cannot be sai......
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Day v. Johnson, 08CA1443.
...in a tort action a plaintiff must prove negligence by establishing both a duty and a breach of that duty. See City of Aurora v. Weeks, 152 Colo. 509, 515, 384 P.2d 90, 93 (1963). An instruction similar to that at issue in this case was recently reviewed by the Supreme Court of Iowa, which c......
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Day v. Johnson, Court of Appeals No.: 08CA1443 (Colo. App. 9/3/2009), Court of Appeals No.: 08CA1443.
...in a tort action a plaintiff must prove negligence by establishing both a duty and a breach of that duty. See City of Aurora v. Weeks, 152 Colo. 509, 515, 384 P.2d 90, 93 (1963). An instruction similar to that at issue in this case was recently reviewed by the Supreme Court of Iowa, which c......
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