Dayberry v. City of East Helena

• Decision Date: 25 November 2003
• Docket Number: No. 01-839.,01-839.
• Citation: 2003 MT 321,80 P.3d 1218
• Court: Montana Supreme Court
• Parties: Jeremy DAYBERRY, and Debbie Lehrkamp, Plaintiffs and Appellants, v. CITY OF EAST HELENA, Defendant and Respondent.

80 P.3d 1218

2003 MT 321

Jeremy DAYBERRY, and Debbie Lehrkamp, Plaintiffs and Appellants, v. CITY OF EAST HELENA, Defendant and Respondent.

No. 01-839.

Supreme Court of Montana.

Submitted on Briefs May 23, 2002.

Decided November 25, 2003.

For Appellants: John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, Montana.

For Respondent: Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Jeremy Dayberry (Dayberry), a minor, and his mother, Debbie Lehrkamp, appeal the judgment of the First Judicial District Court, Lewis and Clark County, granting the City of Helena's (the City) motion for summary judgment.

¶ 2 We address the following issue on appeal and affirm:

¶ 3 Did the District Court err in granting the City's motion for summary judgment when Dayberry did not present expert testimony in establishing his negligence and strict liability claims?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On June 26, 1997, Dayberry went swimming at the City's municipal swimming pool. While at the pool, Jeremy dove head-first from the diving board with his hands at his sides. As a result of the dive, he struck his head at the bottom of the pool, injuring his head and neck.

¶ 5 The City's swimming pool was constructed in 1972. It has a 14-foot diving board that is 42 inches above the water line, and the swimming pool itself is nine feet deep.

¶ 6 In 1985, the Montana legislature amended its administrative rules, setting standards for design and construction of swimming pools. These rules articulate specific board lengths for various pool depths, and were made applicable to swimming pools constructed or remodeled after June 28, 1985. ¶ 7 The District Court found that Dayberry needed expert testimony regarding pool design and construction in order to establish a prima facie case of liability. Because Dayberry did not intend to call an expert witness, the District Court granted the City's motion for summary judgment.

¶ 8 Dayberry now appeals the District Court's judgment.

STANDARD OF REVIEW

¶ 9 We review a district court's grant or denial of a motion for summary judgment de novo. Cole ex rel. Revocable Trust Cole v. Cole, 2003 MT 229, ¶ 8, 317 Mont. 197,

¶ 8, 75 P.3d 1280, ¶ 8. The movant must prove that no genuine issues of material fact exist. Once the movant demonstrates this, the burden shifts to the nonmoving party to prove that a genuine issue of material fact does exist. After a district court determines that no genuine issues of material fact exist, the district court must then determine whether the movant is entitled to judgment as a matter of law. Cole, ¶ 8. We review a district court's legal conclusions for correctness. Cole, ¶ 8.

DISCUSSION

¶ 10 Did the District Court err in granting the City's motion for summary judgment when Dayberry did not present expert testimony in establishing his negligence and strict liability claims?

¶ 11 Dayberry argues that the City had a duty to warn him that the pool was too shallow for the dive he attempted. Because both the pool and the diving board did not meet current minimum safety standards, he contends that the City was under a continuing obligation to keep the pool in a "healthful and safe condition." Hence, Dayberry argues that the present case is one of simple negligence—i.e., a child diving into a swimming pool which was too shallow and which did not meet current minimum standards for pool design—and he does not need expert witness testimony to establish that the City owed a duty to Dayberry which the City allegedly breached.

¶ 12 Dayberry also maintains that because the Administrative Rules of Montana require a minimum pool depth for a specified diving board length, these minimum standards replace the need for an expert witness to establish the applicable standard of care. Dayberry argues that the City is negligent per se based on the administrative rules.

¶ 13 The City argues that in order to establish the appropriate standard of care applicable to the City, Dayberry must produce expert testimony to that effect. Specifically, the City argues that unless Dayberry produces expert testimony regarding the standard of care applicable to operators of swimming pools or the allegedly dangerous condition of the swimming pool, Dayberry cannot establish a prima facie case of negligence or strict liability. The City also argues that Dayberry's reliance on the theory of strict liability is inapplicable to this case because a swimming pool is not a product. We agree.

¶ 14 Initially, Dayberry argues that the District Court erred in making findings regarding pool design, because he did not even raise that issue. However, we note that since the issue before the District Court was whether the City's pool depth was adequate for diving, that issue rests on the pool design not being safe for diving. We hold that the District Court did not err in making findings about the pool design and its analysis.

¶ 15 Specifically, Dayberry relies on § 50-53-107, MCA, for his contention that the statutory language sufficiently establishes the duty owed to patrons of the pool. This statute states "[p]ublic swimming pools ... must be sanitary, healthful, and safe." Section 50-53-107(1), MCA.

¶ 16 The above-quoted statutory language, however, does not define a particular standard of conduct to which operators of public swimming pools must conform. Rather, it imposes a general duty on the City to keep its pool safe. In order for Dayberry to establish the standard of conduct to which the City must conform, he must present expert testimony to that effect.

¶ 17 We have held that expert testimony is required when the issue presented is sufficiently beyond the common experience of the trier of fact and the expert testimony will assist the trier of fact in determining the issue or understanding the evidence. Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 48, 289 Mont. 1, ¶ 48, 961 P.2d 75, ¶ 48 (expert testimony necessary to establish the relationship between alcohol consumption and nystagmus); Durbin v. Ross (1996), 276 Mont. 463, 470, 916 P.2d 758, 763 (expert testimony not necessary to establish a fraud claim where the Realtors were held to the same standard of care as an ordinary citizen).

¶ 18 A New Hampshire case is directly on point. In Lemay v. Burnett (1995), 139 N.H. 633, 660 A.2d 1116, the plaintiff dove into the defendant's swimming pool which was eight feet deep. As a result of the dive, the plaintiff hit his head at the bottom of the pool, injuring himself. The plaintiff notified the defendant that he did not intend to use an expert witness. The Superior Court, therefore, granted, and the Supreme Court of New Hampshire affirmed, the defendant's motion to dismiss, noting that expert testimony was needed because the issues presented were beyond the common experience and knowledge of the jury. Notably, these issues included both a duty to warn and a duty to establish the pool was unreasonably dangerous. Lemay, 139 N.H. at 634-36, 660 A.2d at 1117-18.

¶ 19 Here, a juror of ordinary training and intelligence would not know whether the City's pool depth was inadequate, thereby requiring a warning or prohibition of diving, and, hence, making the pool unreasonably dangerous. As the court in Lemay noted, we too "do not believe that the average juror could determine whether the particular combination of diving conditions found in ... [the City's] pool—that is, water depth, diving board stiffness, diving board height, etc.—led to reasonably safe diving conditions...." Lemay, 139 N.H. at 636, 660 A.2d at 1118. Expert testimony is required to assist jurors in determining whether the pool depth was unreasonably dangerous for the diving board length. Thus, we hold that the District Court did not err in reaching that conclusion.

¶ 20 Dayberry further maintains that expert testimony is not needed because the administrative rules prove that the pool did not satisfy current minimum standards.

¶ 21 However the City's pool is not subject to 16.10.1506, ARM (now 37.111.1114, ARM), because this rule, by its terms, is only applicable to pools constructed on or after June 28, 1985. Indeed, the City's pool was constructed in 1972, thereby implicating application of 16.10.1309, ARM (now 37.111.1022, ARM). This administrative rule only requires a pool with a diving board height like the City's to be 8.5 feet deep, which the City's pool satisfies. No single minimum standard exists for swimming pools regarding depth and board length, and if we were to accept that 16.10.1506, ARM, was applicable, which it is not, even that rule does not specify a minimum depth for pools with a board length of 14 feet, like the City's. Thus, on this contention as well, the District Court was correct in concluding that Dayberry must produce expert testimony concerning the standard of care applicable to operators of swimming pools and to the pool design at issue.

¶ 22 As already noted, Dayberry relies on the legal theory of strict liability, maintaining that a swimming pool is a product. However, we have previously held that a speed bump is not a product, Harrington v. LaBelle's of Colorado (1988), 235 Mont. 80, 84, 765 P.2d 732, 735, nor is a building, Papp v. Rocky Mountain Oil & Minerals (1989), 236 Mont. 330, 341, 769 P.2d 1249, 1256. In so holding, we took into account the policy considerations set forth in Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 514-15, 513 P.2d 268, 273, in determining the relevancy in a strict liability case of whether or not the product is in the stream of commerce. Because the building at issue in Papp was not in the stream of commerce and was not mass-produced or prefabricated, we held that it was not a product for strict liability purposes. Papp, 236 Mont. at 340-41, 769 P.2d at 1256.

¶ 23 Here, as with our analysis in Papp, we hold that because the City's swimming pool is not in the...