Kavanaugh v. Daniels
| Decision Date | 08 April 1977 |
| Citation | 549 S.W.2d 526 |
| Parties | Chester KAVANAUGH, the Administrator of the Estate of Donald Trent Kavanaugh, Appellant, v. Lorraine DANIELS and Zada Daniels, his wife, Appellees. |
| Court | Kentucky Court of Appeals |
P. Joseph Clarke, Jr., Danville, for appellant.
W. R. Patterson, Jr., Thomas M. Cooper, Landrum, Patterson & Dickey, Lexington, for appellees.
Before COOPER, HOWARD and WHITE, JJ.
This is an appeal from a verdict for the Defendant-Appellee rendered in the Garrard Circuit Court in action for a wrongful death of a child by drowning. Lorraine and Zada Daniels, the Appellees, owned and operated a seven and one-half acre lake in Garrard County called Lake Lorraine. For the past seven to eight years, a portion of this lake has been marked off and is used for commercial swimming. On June 3, 1973, Donald Kavanaugh, an eleven-year old boy, paid an admission fee and went swimming in the lake. Donald had been diving off the diving board and was noticed by other customers as having trouble keeping afloat. After his co-swimmers had observed him struggling, they attempted to rescue him by diving. The lifeguard on duty and the owners began to drag for the body with grappling hooks. Later the body was recovered by the Garrard County Rescue Squad. There was no rescue equipment readily available to use in attempting a shore rescue.
The issues in this case are:
(1) Do the regulations promulgated by the Kentucky Department of Health concerning swimming pools apply to lake swimming with marked-off swimming areas?
(2) Were the Court's instructions on "ordinary care" proper?
(3) Was it error for the Court to limit cross examination by use of the Red Cross Life Saving and Water Safety Manual?
This Court does not find it necessary to elaborate in great detail the content of the swimming pool regulations which relate to KRS 211; but it should be sufficient to say that the regulations contemplate a structure of concrete or plastic or some other artificial material and not a lake operation, as in the instant case. Although we are not dealing with statutory specifications, we are concerned with the regulations of an agency of the Commonwealth which have the force of law. It is a reaffirmed principle of this Court that the strict wording of a statute shall be considered to ascertain the purpose of that statute. O'Bryant v. Theobald, Ky., 421 S.W.2d 571 (1967); City of Louisville v. Helman, Ky., 253 S.W.2d 598 (1952). Therefore, we hold that these swimming pool regulations promulgated by the Kentucky Department of Health relating to KRS 211 do not apply to lake swimming operations.
The next issue concerns the instructions of the Court. In the absence of a duty imposed by a law, ordinance, or regulation, the instructions on negligence should instruct on the common law duty of the ordinary care which should be taken to have a facility in a reasonably safe condition. Penn Central Transportation Company v. Skaggs, Ky., 489 S.W.2d 26 (1973). In the instant case we hold that a proper instruction was...
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DSG Corp. v. Anderson
...to certain facts or issues." Croushorn Equipment Co., Inc. v. Moore, 441 S.W.2d 111, 115 (Ky.1969). See also Kavanaugh v. Daniels, 549 S.W.2d 526, 528 (Ky.Ct.App.1977). Thus, the "bare bones" approach does not prevent a court from giving instructions regarding material issues raised by a li......
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McKee v. Miles Laboratories, Inc.
...Heat & Power Co., 53 F.Supp. 817 (E.D.Ky.1944); George v. Alcoholic Beverage Control Bd., 421 S.W.2d 569 (Ky. 1967); Kavanaugh v. Daniels, 549 S.W.2d 526 (Ky.App.1977). However, the legislative history need not be referred to in construing a statute where the statutory language is clear. Ex......
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Adams v. Lexington-Fayette Urban County Government, No. 2007-CA-000066-MR (Ky. App. 10/10/2008)
...phrase. Although jury instructions should not give undue prominence to certain facts or issues as stated in Kavanaugh v. Daniels, 549 S.W.2d 526, 528 (Ky.App. 1977), Instruction No. 2 simply restated the central issue of Adams' case rather than over emphasize a marginal or immaterial Adams ......
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Adams v. Lexington-Fayette Urban County Government, No. 2007-CA-000066-MR (Ky. App. 2/13/2009)
...phrase. Although jury instructions should not give undue prominence to certain facts or issues as stated in Kavanaugh v. Daniels, 549 S.W.2d 526, 528 (Ky.App. 1977), Instruction No. 2 simply restated the central issue of Adams' case rather than over emphasize a marginal or immaterial Adams ......