Grimes v. Hettinger

• Decision Date: 27 January 1978
• Citation: 566 S.W.2d 769
• Parties: Robert F. GRIMES, Administrator of Laura McCoy Grimes, a Deceased minor, and Robert F. Grimes and Helen Grimes, surviving parents of Laura McCoy Grimes a Deceased minor, Appellants, v. Gordon HETTINGER, Appellee.
• Court: Kentucky Court of Appeals

Page 769

566 S.W.2d 769

Robert F. GRIMES, Administrator of Laura McCoy Grimes, a Deceased minor, and Robert F. Grimes and Helen Grimes, surviving parents of Laura McCoy Grimes a Deceased minor Appellants, v. Gordon HETTINGER, Appellee.

Court of Appeals of Kentucky.

Jan. 27, 1978.

Rehearing Denied March 31, 1978.

Discretionary Review Denied June 27, 1978.

Bill V. Seiller, Ewen, MacKenzie & Peden, P. S. C., Louisville, for appellants.

Thomas M. Crawford, Louisville, for appellee.

Before HOGGE, PARK and REYNOLDS, JJ.

PARK, Judge.

This appeal raises the question of the liability of the owner of a private residential swimming pool for the death of a minor social guest. The appellants are the parents and personal representative of Laura McCoy Grimes, who died in a swimming pool adjacent to the residence of defendant-appellee, Gordon Hettinger. The appellants appeal from a summary judgment granted by the trial court dismissing the complaint.

FACTS

The underlying facts are not in dispute. Laura Grimes was invited to a combined slumber party and swimming party at the Hettinger home by Mr. and Mrs. Hettinger's daughter, Linda. Including both Laura and Linda, eleven girls attended the party. The girls arrived at the Hettinger home on Friday evening, May 23, 1975. On Friday evening, the girls spent several hours swimming in the pool without incident. The record establishes that Laura was an intelligent twelve year old girl who was a proficient swimmer and diver with substantial training and experience. Laura had the opportunity to become thoroughly familiar with the layout of the Hettinger swimming pool on Friday evening.

The girls resumed swimming in the pool around eight o'clock Saturday morning. Mrs. Hettinger was not present, having taken one of the younger Hettinger boys to a tee-ball game. As Mr. Hettinger had a business appointment shortly after 9:00 A.M., he awakened his son, Terry, who was fourteen years of age, and gave him instructions to watch the girls. Before leaving, Mrs. Hettinger awakened her daughter Kathy, who was almost sixteen years old. Both parents told Kathy to watch the girls. Before leaving for his business appointment, Mr. Hettinger either told the girls to Approximately five minutes after Mr. Hettinger left the residence, Kathy told the girls to leave the pool. When the girls had left the pool, they reported that Laura was missing. Kathy, Terry, and most of the other girls looked for Laura inside the Hettinger residence. The search of the house had continued for five minutes when two of the girls dove into the pool and found Laura's body on the bottom in the deepest portion of the pool near the drain. The two girls brought Laura to the surface and were assisted by Kathy and Terry Hettinger in bringing Laura out of the pool. There were no signs of breathing or heartbeat. The local rescue squad was notified immediately. A neighbor was summoned who administered mouth-to-mouth resuscitation. However, all efforts to revive Laura were futile. No autopsy was performed. However, Mrs. Grimes noted a bump on Laura's forehead at the hairline. There was also some indication that Laura had superficial scratches in the area of her nose.

leave the pool or told them to leave the pool when requested to do so by Kathy.

ISSUES

Respecting Mr. Hettinger's liability for Laura's death, three questions are raised: (1) whether a dangerous condition of the swimming pool was a substantial factor in causing Laura's death; (2) whether activities conducted in and around the swimming pool were a substantial factor in causing her death; and (3) whether there was a duty to rescue Laura.

CONDITION OF THE POOL

Whether Mr. Hettinger was under a duty to Laura because of the condition of the swimming pool depends upon two factors. First, did a condition exist which Mr. Hettinger realized, or should have realized, would involve an unreasonable risk of death or serious bodily harm to Laura? Second, would a child of Laura's age and experience reasonably be expected to understand and appreciate the risk of any dangerous conditions in the swimming pool? It is immaterial whether Laura was an invitee or merely a licensee. Gross v. Bloom, Ky., 411 S.W.2d 326, 20 A.L.R.3d 1123 (1967); Louisville Trust Company v. Nutting, Ky., 437 S.W.2d 484 (1968); Johnson v. Simpson County Seed & Implement Co., Ky., 438 S.W.2d 340 (1969). In these three cases, the court adopted the rule set forth in the Restatement (Second) of Torts § 339, with respect to artificial conditions dangerous to trespassing children. The protection afforded trespassing children under section 339 is also extended to children who are licensees and invitees. Restatement (Second) of Torts § 343B.

Taking into consideration Laura's age and her swimming experience and skill, the existence of a swimming pool would not itself impose any duty on Mr. Hettinger to warn or protect Laura. Swimming pools do not present a special danger involving an unreasonable risk of death or serious bodily harm, and the hazards of water are generally appreciated even by children of tender years. See Hanners v. City of Ashland, Ky., 331 S.W.2d 729, 730 (1959). We are not dealing with a child who is too young to appreciate the dangers inherent in a swimming pool or other body of water. Laura was an experienced swimmer fully capable of understanding the risks involved in swimming. See Restatement (Second) of Torts § 339, Comment j, illustrations 6 & 7. ¹ The appellants suggest that the Hettinger swimming pool presented an unreasonable The appellants claim that there is a genuine issue whether the water was too shallow for safety at the end of the slide. The only evidence in the record with respect to the slide is contained in the deposition of Mr. Hettinger who actually installed the swimming pool and accessories. He testified that the end of the sliding board was located "just past the shallow end into five foot of water." There is nothing in the record to suggest that the placement of the slide involved any unreasonable risk or danger. According to Mr. Hettinger, the manufacturer stated the slide was safe so long as there was three feet of water or more. The appellants cite the dissenting opinion of a member of the Consumer Product Safety Commission rendered December 9, 1975, long after the accident. However, this dissenting opinion does no more than argue that sliding boards should not be located in shallow water. There is nothing in the record indicating that five feet of water was too shallow for the Hettinger sliding board or that there was any danger which Laura could not be expected to appreciate. Mr. Hettinger was under no duty to warn Laura concerning the sliding board.

risk of danger because of the presence of a sliding board and because of the cloudy condition of the water on the date of Laura's death.

With respect to the clarity of the water in the pool, Mr. Hettinger testified that he vacuumed the pool and added chlorine to the water Thursday evening before the party. According to Hettinger's deposition, the addition of chlorine tends to have a cloudy effect on the water for approximately twenty-four hours. For a time Friday evening, there was a wind and rain storm. Some leaves were blown into the pool, and the rain also tended to have a cloudy effect on the water in the pool. Because Laura's body was not seen until the girls dived into the pool to look for her, the appellants argue that an issue was raised that the water was dangerously unclear. There was substantial evidence in the record that did indicate that there was nothing unusual about the clarity of the water in the pool and that a person swimming along the bottom of the pool could be seen by a person standing at the side of the pool.

Assuming that the clarity of the water did constitute a dangerous condition, this condition was as evident to Laura as it was to Mr. Hettinger. He was under no duty to warn Laura of a condition which was readily apparent. If ordinary care would have required Mr. Hettinger to bar the girls from swimming in the pool, then it would have been contributory negligence on the part of Laura to swim in the pool. The record establishes that she was fully aware of the danger inherent in swimming and diving in unclear water. On the other hand, if it was not contributory negligence for Laura to swim in the pool, there was no negligence on the part of Mr. Hettinger in permitting the girls to swim in the pool on Saturday morning. See Jones v. Winn-Dixie of Louisville, Ky., 458 S.W.2d 767, 770 (1970); Shelanie v. National Fireworks Assn., Ky., 487 S.W.2d 921 (1972); Meyer v. Smith, Ky., 428 S.W.2d 612 (1968).

For the foregoing reasons, we conclude that no triable issue was raised by the record relating to the condition of the swimming pool.

ACTIVITIES IN POOL

The second basis for liability of Hettinger relates to the activities in and around the swimming pool. Even though the condition of the pool itself did not present a danger which Laura would not have understood or appreciated, the activities of ten other twelve year old girls swimming and diving in the pool may have presented additional risks which would not have been present had Laura been swimming alone. In Hardin v. Harris, Ky., 507 S.W.2d 172, 174-75 (1974), the court held that the possesser of land had a duty to exercise ordinary care in conducting his activities to avoid injury to children on the premises. In this case, we are not concerned with Mr. Hettinger's activities in and around the swimming pool. The question to be determined is the nature and extent of any duty on the part of Mr. Hettinger to supervise the activities of Laura and the other ten girls.

The appellants argue that Mr. Hettinger, "as the adult in charge," was under a duty to observe those rules of water safety reasonably observed by prudent persons in control of a swimming pool including reasonable opportunities to rescue a swimmer in distress. The appellants...