Dameron v. City of Scottsburg, Ind.

Decision Date18 December 1998
Docket NumberNo. NA97-110-C H/G.,NA97-110-C H/G.
Citation36 F.Supp.2d 821
PartiesKimberly D. DAMERON and Lowell R. Gasaway, Plaintiffs, v. CITY OF SCOTTSBURG, INDIANA, and First Christian Church, Inc., of Scottsburg, Indiana, Defendants.
CourtU.S. District Court — Southern District of Indiana

Donald R. Forrest, Scott & Forrest, New Albany, IN.

Joseph B. Roberts, III, Roberts & Rhodes, Gastonia, NC.

Richard T. Mullineaux, Kightlinger & Gray, New Albany, IN.

James S. Stephenson, Stephenson Daly Morow & Kurnik, Indianapolis, IN.

ENTRY ON DEFENDANT CITY OF SCOTTSBURG'S MOTION FOR SUMMARY JUDGMENT

HAMILTON, District Judge.

On June 30, 1995, six-year-old Briana Gasaway drowned in the Scottsburg City swimming pool. She drowned while visiting the pool with a day care program run by the First Christian Church, Inc. of Scottsburg, Indiana. Briana's parents, Kimberly D. Dameron and Lowell R. Gasaway, have sued both the City of Scottsburg and the First Christian Church for the wrongful death of their daughter.

Defendant City of Scottsburg has moved for total summary judgment on the theory that the City owed no special or private duty to the plaintiffs or to Briana to prevent Briana's drowning or to provide rescue services. The City also moves for partial summary judgment on several issues, contending that the undisputed facts show: (1) the City was not negligent in its pool design because the City provided a wading pool for children and non-swimmers; (2) the Church's day care personnel's failure to require Briana to use the wading pool constituted an intervening cause of her drowning; (3) Lowell Gasaway's claim is barred because he did not file his own timely notice of tort claim as required by the Indiana Tort Claims Act; and (4) the Indiana Tort Claims Act limits plaintiffs' recovery from the City to a total of $300,000 for the death of Briana, rather than $300,000 per parent.

As explained below, the City is not entitled to summary judgment on the theory that it owed no special duty to Briana or her parents. In addition, genuine issues of fact will require a trial on the issues of negligent design of the pool and an intervening cause of Briana's death with respect to the pool design. The City is entitled to summary judgment, however, on plaintiff Gasaway's claim because he failed to provide notice required under the Indiana Tort Claims Act. That conclusion renders moot the City's final theory based on the Tort Claims Act recovery limitation. The City's motion for summary judgment therefore is granted in part and denied in part.

Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing parties must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Not all factual disagreements are material. Factual disagreements that are irrelevant or immaterial under the applicable substantive law do not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under Local Rule 56.1, the parties opposing the motion must identify specific and material factual disputes. The non-moving parties "may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; [they] must go beyond the pleadings and support [their] contentions with proper documentary evidence." Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir.1997); Collier v. Budd Co., 66 F.3d 886, 892 & n. 8 (7th Cir.1995) (evidence must be admissible at trial).

In reviewing the parties' submissions, the court must consider the evidence in the light reasonably most favorable to the non-moving parties. The issue is whether a rational trier of fact could reasonably find for the parties opposing the motion with respect to the particular issue. Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 512 (7th Cir.1996). The court is not required to draw every conceivable inference in the opposing parties' favor, but only those that are reasonable. Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 857 (7th Cir.1997). The court should neither "look the other way" to ignore genuine issues of material fact nor "strain to find" material factual issues where there are none. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1363-64 (7th Cir.1988). Summary judgment is not a substitute for a jury's determinations about the credibility of testimony or the reasonableness of actions and decisions. At the same time, summary judgment is not a disfavored shortcut, but an essential part of the Federal Rules of Civil Procedure. Summary judgment is not discretionary; when a party is entitled to judgment as a matter of law, summary judgment must be granted.

Undisputed Facts

Based on this standard, the following facts are either undisputed or reflect the evidence in the light reasonably most favorable to plaintiffs Dameron and Gasaway. Briana was born on August 13, 1988. Her parents, Kimberly D. Dameron and Lowell R. Gasaway, were divorced in 1994 in North Carolina. Dameron was awarded legal custody of Briana; Gasaway had visitation rights. On June 29, 1995, Briana began her two-week summer visitation with Gasaway and came to Indiana to visit family. That evening, Lowell Gasaway's sister, Eveling Gasaway, asked him to let her take Briana swimming with the day care center at First Christian Church, Inc., where she was employed. After Eveling assured Lowell Gasaway that there would be "lifeguards at the pool," that "counselors [would] be there," and that Briana would be "watched constantly," Gasaway gave his permission for Eveling to take Briana swimming the next day. Lowell Gasaway Dep. 48, 154. Eveling then obtained permission from Jan Beltz, the director of the Church, to bring Briana to the City pool the next day as a guest. Beltz Dep. 36; Eveling Gasaway Dep. 44.

At the beginning of the 1995 pool season, Beltz had made arrangements with Larry Bower, the City's park director, for the Church day care to hold private pool parties on Fridays at the City pool. The Church's pool time lasted from 10:30 a.m. to 12:00 p.m. before the pool opened to the general public at 1:00 p.m. Bower required the Church day care to use the city lifeguards, one for each twenty children. The Church paid the City $13.00 per session, which the pool personnel turned in to city hall. The City then paid the lifeguards for the hours they worked each week. Bower Dep. 18-20. The Church paid for the session on June 30, 1995. Beltz testified that she would not have allowed the children to go to the pool if the City had not provided lifeguards: "Because the lifeguards are there to provide the duty of watching the children when they're in the pool. They're trained for the lifesaving. I mean, that is what they're trained for, when the children are in the water." Beltz Dep. 44.

On the morning of June 30, 1995, 29 children from the day care program, including Briana, arrived at the pool. Their ages ranged from six to eight or nine years old. The children were accompanied by five day care staff members. As a day care guest, Briana was allowed to participate fully in the group's activities. Briana's parents described her as a "marginal" or "non-swimmer." Dameron Dep. 63-67, 72-75; Lowell Gasaway Dep. 56-57, 62-64.

The pool managers had failed to provide lifeguards for the day care pool party on June 30th. Head lifeguard Jason King, who was not scheduled to work that day, was on his way to the bank to cash his paycheck when he saw the day care children walking to the pool. On his way back from the bank, he saw the children waiting at the pool. He opened the pool enclosure and called for lifeguards to come in because the Church had paid for the Friday session. At King's request, Jason Corbin, a lifeguard and the assistant pool manager, and Corey McNeely, a first year lifeguard, agreed to come in and work. Both Corbin and McNeely were lifeguards certified by the Red Cross.

The City pool is T-shaped. The water depths in the shallow part range from 3½ feet to 5 feet, and the diving well is 12 feet deep. There was no safety line or rope separating the shallower part of the pool from the deeper part. There were elevated lifeguard chairs at the northwest corner of the deep well, at the east and west ends of the shallow well, and in the middle of the north side of the shallow well. On the morning of June 30, 1995, lifeguard Corbin was located at the deep well of the pool. Rather than using the elevated lifeguard chair, he stood next to the chair. Lifeguard McNeely was located at the shallow end of the pool. McNeely also failed to use the lifeguard chair. Instead, he sat on a bench that was approximately nine feet from the pool, McNeely Dep. 25-26, 35, Ex. 1. Also, McNeely testified that during at least part of the relevant time, he was lying on his stomach on the bench. Id. at 25-26.

That morning Eveling Gasaway spent time in the shallow part of the pool with Briana. She observed Briana swimming and ensured that she was comfortable in the water....

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