Hooks v. Washington Sheraton Corp.

• Decision Date: 17 January 1978
• Docket Number: No. 76-1958,76-1958
• Citation: 188 U.S.App.D.C. 71,578 F.2d 313
• Parties: Thomas HOOKS, a minor, by Harlin Hooks, his father and next friend, Harlin Hooks and Mildred Hooks v. WASHINGTON SHERATON CORPORATION, a corporation, I. T. T. Sheraton Corporation of America, a corporation, Appellants, Paddock Swimming Pool Company et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 313

578 F.2d 313

188 U.S.App.D.C. 71

Thomas HOOKS, a minor, by Harlin Hooks, his father and next friend, Harlin Hooks and Mildred Hooks v. WASHINGTON SHERATON CORPORATION, a corporation, I. T. T Sheraton Corporation of America, a corporation Appellants, Paddock Swimming Pool Company et al.

No. 76-1958.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 27, 1977.

Decided Dec. 22, 1977.

Rehearing Denied Jan. 17, 1978.

John P. Arness, Washington, D.C., with whom Allen R. Snyder, Washington, D.C., was on the brief for appellants.

Rex Carr, East St. Louis, Ill., for appellees, Hooks.

Charles E. Channing, Jr., Upper Marlboro, Md., also entered an appearance for appellants.

Morton J. Frome, Washington, D.C., also entered an appearance for appellees, Hooks.

Before McGOWAN, LEVENTHAL and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

This diversity case arose out of the injuries suffered by 18-year old Thomas Hooks when he dove from the three-meter diving board at the Sheraton Park Hotel in Washington, D.C., in June 1971. The pool was equipped with a high performance aluminum "Duraflex" board that propelled Hooks, who was not an experienced diver, into shallow water where he struck his head on the bottom. As a result Hooks is a quadriplegic. Hooks and his parents sued the operator of the pool, the Washington Sheraton Corporation (hereafter Sheraton) and its parent, ITT, alleging negligence in the construction and operation of the pool. ¹ Specifically, plaintiffs alleged that the depth of the water in the diving area of the pool did not comply with applicable District of Columbia regulations and that it was too shallow for a three-meter Duraflex diving board.

The District Court held a bifurcated trial on the issues of liability and damages. The jury found Sheraton liable to the plaintiffs and awarded $6,000,000 to Thomas Hooks and $1,000,000 to his parents. On motion by Sheraton the District Court ordered a new trial on the issue of damages unless plaintiffs filed remittiturs of the amounts exceeding $4,500,000 and $180,000 respectively. Plaintiffs filed the remittiturs.

In its appeal from the finding of liability Sheraton contends that the District Court improperly instructed the jury on the standard of care owed by hotelkeepers to their guests, and on the issue of negligence per se. Sheraton also contends that the damages awarded to Thomas Hooks are grossly excessive for three reasons: (1) the inclusion of evidence of the effect of inflation on Hooks' future expenses; (2) the exclusion of evidence of the impact of income taxes upon Hooks' future earnings; and (3) the closing argument by plaintiffs' counsel, which Sheraton says was inflammatory.

We conclude that only one of Sheraton's complaints is valid: the evidence concerning income taxes should have been received. Nevertheless, for reasons hereinafter stated, we affirm the judgment.

I. LIABILITY

Sheraton contends that the District Court improperly instructed the jury on a hotelkeeper's duty of care, that contrary to the law of the District of Columbia the instruction required Sheraton to give what Sheraton calls an "absolute warranty of safety" to its guests. Sheraton cites Bellevue v. Haslup, 80 U.S.App.D.C. 181, 182, 150 F.2d 160, 161 (1945) (Per Curiam); Picking v. Carbonaro, 178 A.2d 428, 429 (D.C.C.A.1962). Appellees argue that the doctrine of implied warranty is now the law of the District of Columbia. Whether the Bellevue decision remains the law of the District of Columbia is an issue we need not reach because read in context the instruction here is not a warranty charge.

The District Court began its instructions on the issue of negligence by properly instructing the jury that

. . . the owner of a hotel is liable for failure to use reasonable care to keep safe such parts of the premises as he may retain under his control either for his own use or for the common use of the guests or tenants of the hotel.

It is the duty of the tenants or guests to exercise ordinary care for their own safety. In other words, the owner of a hotel is not an insurer of the safety of his guests, but he does owe to them the duty to exercise reasonable care for their safety.

(Emphasis added)

The court then proceeded to instruct the jury on the general law of negligence, negligence per se, contributory negligence, and assumption of risk. The court's reference to warranty came in the context of the instruction on assumption of risk.

Before this rule (assumption of risk) is applied to defeat the plaintiff's claim, however, you must be satisfied by a preponderance of the evidence that the danger or hazard which caused the injuries of the plaintiff was open and apparent, that he was aware of it, or that in the exercise of reasonable care should have been aware of it, and that he voluntarily exposed or subjected himself to whatever hazard or danger might reasonably have been involved.

You are instructed that the owner or the operator of a hotel warrants to its patrons that the facilities of said hotel are safe for the use by its patrons, free from defects and dangerous designs, and that such facilities can be used in the use and manner for which they were intended without danger or risk of injury and that such facilities are reasonably fit and suitable for their intended use.

When a patron of such a hotel uses such facilities in the manner and method they were intended to be used, he does not assume the risk of injury and is not chargeable with contributory negligence if he sustains an injury in so doing.

(Emphasis added)

It is apparent from the language before and after the sentence relating to warranty that in this sentence the court was explaining to the jury that when using the defendant's pool in the manner for which it was intended, Thomas Hooks did not assume the risk of injury from defects or dangerous design, of which he was not aware, and that he was entitled to rely on the hotel's representation that there were no such hidden perils. We think the jury could not have understood the one sentence, delivered in the course of seven pages dealing with negligence, to mean that the hotel owed an "absolute warranty of safety" to its guests. This we think is plain in light of the clear statement at the outset, that the hotel is not an insurer and that it owes its guests a duty of reasonable care. Accordingly we reject the argument that the instruction improperly imposed upon Sheraton a duty to give its guests an absolute warranty of safety.

Sheraton also contends that the District Court erred in instructing the jury on the issue of negligence per se because Sheraton had explained that any possible violations of the applicable District of Columbia regulations were consistent with due care. At trial Hooks offered evidence from which the jury could conclude that the pool failed to meet District of Columbia regulations concerning the depth of water required to be directly under as well as extending out from the end of the three-meter diving board.

Paddock, the third party defendant, introduced evidence on the dimensions of the pool, which showed that there might have been minor violations of the regulations. ² In an effort to explain any violations, Sheraton called Mr. Brink, the chief of the District of Columbia Bureau of Air and Water Quality, to testify that the plans for the pool had been approved by his Bureau.

In H.R.H. Construction Corp. v. Conroy, 134 U.S.App.D.C. 7, 411 F.2d 722 (1969), this court drew a distinction between cases in which the defendant offers no explanation of a violation of a statute or regulation ³ and those in which the defendant introduces evidence tending to show that its failure to comply with the statute or regulation is consistent with the exercise of due care. ⁴ The instruction on negligence per se is proper only when no explanation is made. 134 U.S.App.D.C. at 9, 411 F.2d at 724. Sheraton urges us to hold that its evidence of the approval of the plans, the custom of inspection during construction, and the issuance of the operating license for the pool was enough to negative the inference of negligence per se. We disagree.

Mr. Brink testified that he personally approved the plans for the pool in 1960. He also testified that it is the custom for inspectors to check compliance during construction, and that a license to operate the pool would not have issued unless the pool had been built according to the plans. Mr. Brink did not testify from personal knowledge that the pool was so constructed, nor did anyone else. As it turned out, the pool was not so constructed. The approved plans called for a wooden diving board. In 1968 Sheraton replaced the original board with a high performance aluminum "Duraflex" board. Several experts, including the 1976 U.S. Olympic diving coach, testified that this type of board at the three-meter height is unsafe for the inexperienced divers likely to use a hotel pool. A college diving coach said that a Duraflex board "has a great deal more of elasticity and projects people higher in the air. . . . (I)f a person's balance is forward at the time (he leaves) that board, it's going to send him a lot farther out." Moreover, the aluminum board extended five inches farther into the pool than the original wooden board. This seems at first a small modification, but it is of particular importance to the question whether the pool depths violated District of Columbia regulations. The regulations require ten feet of water directly under the board and extending out from it for twelve feet. Thereafter the bottom may incline toward the surface at a rate of one foot of depth for every three feet of distance from the board. Obviously as the board extends farther over the water, the distance from the end of the board to the point where the bottom inclines toward the surface is reduced. The area where the bottom slopes up is where the injury...