Murray v. Ramada Inn, Inc.

• Citation: 821 F.2d 272
• Decision Date: 13 July 1987
• Docket Number: No. 86-4648,86-4648
• Parties: Clementine MURRAY and Carmen R. Wright, Guardian and Ad Litem for Adrian Lavonne Wright, Minor, Plaintiffs-Appellees, v. RAMADA INN, INC., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 272

821 F.2d 272

Clementine MURRAY and Carmen R. Wright, Guardian and Ad

Litem for Adrian Lavonne Wright, Minor, Plaintiffs-Appellees, v. RAMADA INN, INC., et al., Defendants-Appellants.

No. 86-4648.

United States Court of Appeals, Fifth Circuit.

July 13, 1987.

Brian D. Smith, Charles W. Salley, Shreveport, La., for defendants-appellants.

H. Alston Johnson, III, Baton Rouge, La., for amicus curiae--La Assoc. of Defense Counsel.

John E. McKay, Kansas City, Mo., Bennett L. Politz, Shreveport, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before GOLDBERG, HILL and JONES, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Defendants Ramada Inn, Inc., Interstate Motor Lodges of Shreveport, Inc., Barker Development and Management, Inc., and Aetna Casualty & Surety Company appeal from the judgment of the district court awarding $250,000 to the wife and child of Gregory Murray, who died of injuries received as a result of diving into a swimming pool at a Ramada Inn in Shreveport, Louisiana. As part of its defense, the defendants claimed that Murray could not recover because he knowingly dived into the shallow end of the pool in a manner he knew to be unsafe. Consequently, the defendants assert that the doctrine of assumption of the risk bars the plaintiffs' recovery. We conclude that the question of whether assumption of the risk has been subsumed into Louisiana's comparative negligence statute is an important issue that should be decided by the Louisiana Supreme Court. Accordingly, we certify this question to that court.

I.

The facts of this case are fairly simple. On July 30, 1983, Murray, along with two of his brothers, began doing shallow water diving in the swimming pool at a Ramada Inn in Shreveport, Louisiana. On Murray's third dive into the pool, he struck his head on the bottom of the pool. This caused instant paralysis. After approximately five months of medical treatment, Murray died as a result of his injuries in December 1983. A suit was filed by Murray's wife, Tina Murray, and by Adrian Wright, who was a child of Murray's born out of wedlock.

At trial, conflicting expert evidence testimony was presented by both sides on whether the swimming pool was operated in an unreasonably dangerous manner. The testimony centered on the causal relationship between the lack of a lifeguard, the lack of a sign which indicated that no diving should be done in the shallow end of the pool, and Murray's accident. There was other testimony, however, which indicated that Murray was aware of the dangers of diving into the shallow end of a pool at the time of the accident and thus assumed the risk of doing so.

The jury was presented with special written interrogatories. The jury responded that the defendants operated the swimming pool in an unreasonably dangerous manner, and that their negligence caused Murray's injuries and death. The jury also found that Murray was negligent in diving into the shallow end of the pool and concluded that the defendants and Murray were equally responsible for the accident. The jury awarded $250,000 in damages to Murray's wife and $250,000 to Murray's child. Based upon the jury's apportionment of liability, the district court entered a judgment in favor of the plaintiffs for $125,000 each.

The defendants filed an appeal, claiming that the district court made several erroneous rulings. In light of our decision to certify the relationship of comparative negligence and assumption of the risk to the Louisiana Supreme Court, we discuss only the issues relevant to our decision to certify this case and reserve the other issues raised until a later time.

II.

The critical issue in this appeal is whether assumption of the risk has been subsumed by Louisiana's comparative negligence statute, La.Civ.Code Ann. art. 2323, ¹ or whether it survives as a complete defense to a negligence claim. The district court ruled that it had been subsumed into comparative negligence and thus refused to consider the defense or instruct the jury on this.

Two separate panels of this court have noted that this issue is still unsettled under Louisiana law. Hovanec v. Harnischfeger Corp., 807 F.2d 448, 450 n. 2 (5th Cir.1987); Howell v. Gould, 800 F.2d 482, 485 (5th Cir.1986). ² Nothing has happened in Louisiana law since Hovanec was decided that would cause us to change our assessment of Louisiana law on this issue. In Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985), the Louisiana Supreme Court, in response to a certified question from this court, stated that the defenses of contributory negligence and assumption of risk do not act as a complete bar to recovery in strict products liability cases. Id. at 172-73. The court noted, however, that the question of whether other classes of cases fall within the category to which comparative fault may apply "must be decided on a case-by-case basis." Id. Although one justice wanted to apply the comparative fault approach to all tort cases, see id. at 173 (Watson, J., concurring), the majority deliberately avoided this all-inclusive approach.

In Aguillard v. Langlois, 471 So.2d 1011 (La.Ct.App.), writ denied, 476 So.2d 356 (La.1985), the court, after determining that the landowner in the case was guilty of negligence, analogized to Bell and implicitly held that assumption of the risk had been subsumed into the state's comparative negligence statute. 471 So.2d at 1015. However, in Brown v. Harlan, 468 So.2d 723 (La.Ct.App.), writ dismissed, 472 So.2d 26 (La.1985), the court held that under either a theory of negligence or strict liability, assumption of the risk acts as a complete bar to recovery. Id. at 728. Curiously, the court in Brown does not mention Bell, which came out four months earlier. While the Brown court may not have been aware of Bell, it still clearly indicates its view that assumption of the risk is a complete bar to a negligence action.

In light of the divergent views on this question by the Louisiana courts of appeals, we feel certification is appropriate. If assumption of the risk acts as a complete bar, Murray's awareness of the danger of diving into the shallow end of the pool will foreclose plaintiffs from recovering anything. If, on the other hand, assumption of the risk has been subsumed into the comparative negligence statute, then Murray's negligence will not preclude plaintiffs' recovery to the extent of the defendants' negligence. The importance of this question is demonstrated by the amicus brief filed in this case by the Louisiana Association of Defense Counsel.

III.

The defendants argue, however, that there is no need to reach the question of whether the defense of assumption of the risk is subsumed by the comparative negligence statute because the way in which the defendants operated the swimming pool did not pose an unreasonable risk of harm to Murray under the circumstances. Thus, they contend, the district court erroneously denied their motion for a directed verdict and for judgment notwithstanding the verdict. We disagree.

In reviewing the denial of the defendants' motions challenging the jury verdict, we must consider the evidence in the light most favorable to the plaintiffs. The standard by which we review the jury's verdict is set out in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc):

[I]f there is substantial evidence opposed to the motions [for directed verdict and judgment notwithstanding the verdict], that is, evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury ... [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Id. at 374. We review the evidence of defendants' fault under this standard.

The accident occurred late in the afternoon during daylight hours. No lifeguard was on duty and there was no sign posted in the vicinity of the pool warning swimmers not to dive into the shallow end; there was, however, a pool rules sign in place which contained the language "No lifeguard--Swim at own risk." During trial, Murray cross-examined Keith Clayton, an inspector for Aetna Insurance who had inspected the...