McKeever v. Phoenix Jewish Community Center

• Decision Date: 03 October 1962
• Docket Number: No. 6897,6897
• Citation: 374 P.2d 875,92 Ariz. 121,1 A.L.R.3d 957
• Parties: , 1 A.L.R.3d 957 James J. McKEEVER, as father of Mary Agnes McKeever, deceased, Appellant, v. PHOENIX JEWISH COMMUNITY CENTER, an Arizona corporation, Appellee.
• Court: Arizona Supreme Court

Page 875

374 P.2d 875

92 Ariz. 121, 1 A.L.R.3d 957

James J. McKEEVER, as father of Mary Agnes McKeever, deceased, Appellant, v. PHOENIX JEWISH COMMUNITY CENTER, an Arizona corporation, Appellee.

No. 6897.

Supreme Court of Arizona, In Banc.

Oct. 3, 1962.

Raineri & Cracchiolo, by J. C. Raineri, Phoenix, for appellant.

Langerman & Begam and Cavanagh & O'Connor, by Ferris W. Bellamak, Phoenix, for appellee.

UDALL, Vice Chief Justice.

The plaintiff brought this action against defendant for the alleged wrongful death of his minor daughter. The jury returned a verdict in favor of the defendant and plaintiff has appealed.

The facts disclose that James McKeever and his family were paid up members in the Phoenix Jewish Community Center and that on May 28, 1957, in exercise of membership privileges, he and his two sons, his nine year old daughter, his ten year old daughter Mary Agnes (now deceased), and a young girl friend of Mary Agenes' were using the swimming pool belonging to the Center.

Plaintiff left the small children in the shallow end of the pool (being separated from a deeper end by a rope supported by several buoys) and went to a grassed area some 100 feet away, and out of sight of the voungsters to lie down. Shortly thereafter and without regard for his caution to the children to stay in the safe zone, Mary Agnes with two young girl friends proceeded to the portion of the pool at the deep side of the safety rope. In their play the girls jumped into the deep water that was over their heads and successfully climbed back to the bank to jump again several times. It appears from the evidence that no one but Mary Agnes's nine year old sister saw these children in this game although there were roughly 40 other people and a lifeguard at the pool. The number of jumps they made or the length of time they engaged in this activity is not clear, but an order brother testified that approximately five minutes passed from the time he saw the three little girls in the shallow part of the pool until he knew of the accident. One of the children who had been jumping with Mary Agnes testified that only about five minutes passed from the time she left Mary Agnes at the scene of their jumping until she heard of the accident. During that period Mary Agnes was left alone at that part of the pool, her two friends having returned to other areas. Immediately thereafter her body was discovered on the bottom of the pool by two other swimmers.

A qualified lifeguard who was on duty during that time had just finished a routine inspection by walking around the pool and observing the general activities thereabouts. The three children jumping into the water at the deep water area did not meet his attention during that tour, possibly because they appeared to be reasonably able swimmers. Although the testimony is in conflict as to Mary Agnes' ability to swim, the other two children had that skill. Upon returning to his regular duty station at the north side of the pool the lifeguard was called to assist in the rescue of Mary Agnes at the far side where she was being brought from the water. The evidence shows that he got to the scene as soon as was humanly possible and that in taking proper charge and supervision he made every possible effort to revive the child. All necessary and required safety devices for the protection of the swimmers were on hand if needed.

The plaintiff has set forth two assignments of error regarding the court's instructions to the jury. First he contends the court erred in refusing to instruct as to the doctrine of res ipsa loquitur. He claims that under the facts in the case the court should have given his requested instruction relating to the doctrine.

The doctrine of res ipsa loquitur is simply a rule of circumstantial evidence and gives rise to an inference of responsibility for an injury. Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 P.2d 952 (1937); Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 36 P.2d 168 (1934); Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162 (1933). There is no magic attached to the utterance of the phrase. In going forward with his proof plaintiff must still prove proximate cause and show that no injury would have resulted but for some sort of negligence on the part of defendant. Stewart v. Crystal Coca-Cola Bottling Co., supra; Pickwick Stages Corp. v. Messinger, supra. See also Flora v. Bimini Water Co., 161 Cal. 495, 119 P. 661. In addition he must prove that the instrumentality causing the injury was within the exclusive control of the defendant at the time of the injury. Stewart v. Crystal Coca-Cola Bottling Co., supra; Pickwick Stages Corp. v. Messinger, supra; Speidel v. Lacer, 2 Cal.App.2d 528, 38 P.2d 477 (1934).

Plaintiff's witness Dr. Daniel J. Condon testified that a drowning could result from very little water on the back of a person's throat causing a spasm of the glottis which closes off the airway. This could occur within a matter of seconds. Consequently, several factors other than defendant's alleged negligence could conceivably be said to contribute to a child's death at a swimming pool. One such factor could be a parent leaving a young inexperienced child without immediate and direct personal supervision in an inherently dangerous body of water where drowning is not only possible but may be expected in the event of misjudgment on the part of the child. Even a chance fall by a child unnoticed from a pool's edge into the water could be the cause. Before a court would be obliged to instruct as to the doctrine of res ipsa loquitur the plaintiff must come forth with evidence that would eliminate such conjectures. Stewart v. Crystal Coca-Cola Bottling Co., supra; Sawyer v. People's Freight Lines, 42 Ariz. 145, 22 P.2d 1080 (1933). Otherwise defendant's negligence is not established as the proximate cause. The evidence in this case failed to do this.

Plaintiff must also establish the defendant's exclusive control of the instrumentality causing the injury. Stewart v. Crystal Coca-Cola Bottling Co., supra; ...