Haft v. Lone Palm Hotel

• Decision Date: 29 December 1970
• Citation: 3 Cal.3d 756,478 P.2d 465,91 Cal.Rptr. 745
• Parties: , 478 P.2d 465 Ethel HAFT et al., Plaintiffs and Appellants, v. LONE PALM HOTEL et al., Defendants and Respondents. L.A. 29728.
• Court: California Supreme Court

Page 745

91 Cal.Rptr. 745

3 Cal.3d 756, 478 P.2d 465

Ethel HAFT et al., Plaintiffs and Appellants, v. LONE PALM HOTEL et al., Defendants and Respondents.

L.A. 29728.

Supreme Court of California,

In Bank.

Dec. 29, 1970.

Louis W. Lawson and Sam Dana, Los Angeles, for plaintiffs and appellants.

Robert E. Cartwright, San Francisco, Edward I. Pollock, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Thomas T. Anderson, Indio, Joseph W. Cotchett, San Mateo and Leonard Sacks, Pico Rivera, amici curiae, for plaintiffs and appellants.

Dryden, Harrington & Swartz, Los Angeles, Vernon G. Foster, Torrance, Ellis J. Horvitz and Phyllis M. Hix, Los Angeles, for defendants and respondents.

TOBRINER, Justice.

Plaintiffs Mrs. Ethel Haft and her daughter Roberta Haft appeal from a defense judgment, entered upon a jury verdict, in this wrongful death action, brought in connection with the drowning deaths of Mr. Morris M. Haft and Mark Haft, father and son, in defendants' ¹ motel pool. Plaintiffs raise numerous contentions challenging the trial court's (1) refusal to take several matters from the jury, (2) refusal to give a requested instruction, and (3) exclusion of various evidentiary matters. As we explain below, we have concluded that under the facts presented at trial, plaintiffs, in demonstrating defendants' failure to provide a lifeguard at the pool as required by statute, sustained their initial burden of proof and that defendants then bore the burden of showing that this statutory violation was not a cause of the deaths. Although defendants failed to meet this burden at the initial trial, we have determined that inasmuch as the parties' respective burdens were not clearly defined at that time, the judgment should be reversed and the cause be remanded for a new trial.

1. The Facts.

On June 26, 1961 Mr. and Mrs. Haft, and their five-year-old son Mark, traveled to Palm Springs and stayed at the Lone Palm Hotel, operated by defendants. The Lone Palm Hotel is a 90-unit motel, with rooms on both sides of a six-lane through street, Indian Avenue. The motel office, a restaurant and a swimming pool are located on the east side of Indian Avenue; on the west side there are rooms, a swimming pool and a wading pool. The Hafts were given a room on the west side and it was in the west pool that father and son drowned.

In the morning of the day following the Hafts' arrival, the weather was typically hot for June in Palm Springs, with the temperature around 115 degrees. Mrs. Haft left to go shopping early that morning as Mr. Haft and Mark prepared to take advantage of the motel's inviting pool facilities. At trial, Mrs. Haft testified that although she could not say that her husband and son were 'real swimmers' they both could dog-paddle and tread water well enough to get around the pool; this evaluation of the decedents' swimming abilities was confirmed by Mrs. Haft's sister and brother-in-law, who had spent numerous vacations with the Hafts on prior occasions and thus were familiar with the decedents' swimming skills. Mr. Ollson, a guest at the Lone Palm on the day of the drownings, testified for the defense, however, that after hearing of the tragedy Mrs. Haft had exclaimed: 'My husband, my son, I told them not to swim--' and that Mrs. Haft had also admitted that 'they couldn't swim,' 'they couldn't put their faces under water.'

No one witnessed the actual drownings of the two Hafts. Ollson testified that on the morning of the tragedy, he first noticed the two in the wading pool and later observed them in the regular pool; he testified that he saw no other persons in the vicinity of the pools that entire morning. (The summer is off-season in Palm Springs and the motel was apparently not at all crowded.) When the Hafts were in the main pool, Ollson testified that Mr. Haft was lying on two rubber floating rafts, with Mark astride his stomach; the two were laughing and playing. At the time Ollson first observed the Hafts in the main pool, as he walked by the pool on his way to his motel room, father and son were in the shallow end; when Ollson later viewed the two from his motel room they appeared to be near the deeper end of the pool. This was apparently the last time Mr. Haft and Mark were observed alive.

More than a half hour thereafter Ollson left his room and returned to the pool area, where he observed two bodies submerged in the deep end of the pool. At first Ollson entered the pool but, being unable to swim, found he could not reach the bodies; he then ran to his room to telephone for help. Ultimately an ambulance attendant went into the pool and retrieved the bodies.

Although no direct evidence revealed the manner in which the drownings occurred, the evidence did establish, without conflict, that while defendants had furnished the lounging space, wading pool and swimming pool essential for their guests' recreation, the motel had failed to provide Any of the major safety measures required by law for pools available for the use of the public. ² Thus the record shows that, with defendants' knowledge, no lifeguard was present at the pool and no sign advising guests of this fact was posted. ³ (See Health & Saf.Code, § 24101.4.) No markings on the edge of the pool stated the various depths of the water or indicated the break in the slope between the deep and shallow portions of the pool (see Cal. Admin.Code, tit. 17, § 7788). No sign warned that children were not to use the pool without an adult in attendance (see Cal. Admin.Code, tit. 17, § 7829). No telephone numbers of the nearest ambulance, hospital, fire or police rescue services, physician and pool operator were posted in the pool area (see Id.). No diagrammatic illustrations of artificial respiration procedures were posted, nor were there any instructions provided to indicate that, in emergencies, manual or mouth-to-mouth resuscitation should be begun and continued until the arrival of a physician or mechanical resuscitator (see Id.). No 12-foot-long life poles were available (see Id.). ⁴ In short, when measured against state safety standards, it would be difficult to find a pool that was more dangerous than the attractive facility which the Lone Palm offered its guests, and in which Mr. Haft and Mark drowned. ⁵

In failing to satisfy all of these mandatory safety requirements, which were clearly designed to protect the class of persons of which the victims were members, defendants of course were unquestionably negligent as a matter of law. (Porter v. Montgomery Ward & Co. (1957) 48 Cal.2d 846, 849, 313 P.2d 854; Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 416, 218 P.2d 17; Prosser, Torts (3d ed. 1964) p. 202.) Plaintiffs requested the trial judge to direct the verdict for plaintiffs on the issue of liability or, alternatively, to instruct the jury that defendants were negligent as a matter of law and that the negligence was a proximate cause of the deaths. ⁶ Plaintiffs also asked for an instruction that, under the evidence presented at trial, Mark was not contributorily negligent as a matter of law.

Defendants contended, in response, that the facts did not establish the requisite causation as a matter of law, and also maintained that, under the evidence, the jury should be permitted to find that the wrongful death action as to either or both decedents was barred by contributory negligence. The trial judge, apparently agreeing with the defendants, declined to take either the issue of negligence and proximate causation or the issue of the minor's contributory negligence from the jury. The jury returned a verdict for all defendants on both causes of action.

Plaintiffs raise several contentions on this appeal. Initially, they assert that the trial judge erred in declining to find that defendants' most serious statutory violation--the failure to provide lifeguard services or to erect a sign so notifying their guests--constituted a proximate cause of the deaths as a matter of law. Second, plaintiffs strongly urge that absolutely no evidence supports a finding that Mark Haft, a five-year-seven-month-old child in the care of his father, was contributorily negligent, and that the court thus committed error in permitting the jury so to find. Third, plaintiffs challenge the trial court's exclusion of certain inspection reports which they argue were clearly relevant to the issue of defendants' alleged 'wilful and wanton misconduct.' ⁷

We proceed to discuss each of these contentions in turn.

2. Under the facts in the instant case plaintiffs, in proving defendants' violation of the statutory lifeguard requirement, sustained their initial burden of proof on the issue of causation; the burden then shifted to defendants to show that their violation was not a proximate cause of the deaths.

Although the proof of the numerous statutory and regulatory safety violations established defendants' negligence as a matter of law, this proof of negligence alone, of course, did not automatically establish liability; plaintiffs still bore the initial burden of showing that defendants' negligence was a proximate cause of the deaths. (E.g., Gonzalez v. Derrington (1961) 56 Cal.2d 130, 133, 14 Cal.Rptr. 1, 363 P.2d 1; Johnson v. Oakland etc. R. (1900) 127 Cal. 608, 609, 60 P. 170.) Of course the breach of a statutory duty itself will often suffice to give rise to an inference from which a jury may find that a given injury was the actual and proximate result of the violation. (See, e.g., Lucas v. Hesperia Golf & Country Club (1967) 255 Cal.App.2d 241, 252, 63 Cal.Rptr. 189; Lindsey v. DeVaux (1942) 50 Cal.App.2d 445, 454--455, 123 P.2d 144; Rovegno v. San Jose Knights of Columbus Hall Assn. (1930) 108 Cal.App. 591, 595, 291 P. 848.) The jury returned a verdict for defendants, however, and defendants now argue that in the light of this verdict, we must infer that the jury concluded that plaintiffs failed to establish the...