Olympia Spa v. Johnson

• Decision Date: 12 May 1989
• Citation: 547 So.2d 80
• Parties: OLYMPIA SPA, et al. v. Wilbur G. JOHNSON, executor of the Estate of Margaret F. Johnson, deceased. 87-110.
• Court: Alabama Supreme Court

Page 80

547 So.2d 80

OLYMPIA SPA, et al. v. Wilbur G. JOHNSON, executor of the Estate of Margaret F. Johnson, deceased.

87-110.

Supreme Court of Alabama.

May 12, 1989.

Champ Lyons, Jr., of Coale, Helmsing, Lyons & Sims, and Davis Carr of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellants.

Robert T. Cunningham, Jr., Richard Bounds, and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellee.

SHORES, Justice.

Wilbur G. Johnson, as executor of the estate of Margaret F. Johnson, commenced this wrongful death action in the Circuit Court of Mobile County, under § 6-5-410, Code of Alabama (1975), for the death of his 75-year-old wife in a steam room on the premises of Olympia Spa in Dothan, Alabama. Mr. Johnson filed this action against Olympia Spa, David Polur, Brenda McCall, and Honeywell, Inc., on November 13, 1984. Jack Nicklaus Club Management, Inc., was later added as a party defendant.

The complaint contained three causes of action. The first charged the defendants with negligent failure to maintain the steam room; failure to properly supervise the steam room; failure to monitor persons entering the steam room; failure to maintain the thermostats in the steam room; failure to warn persons entering the steam room of danger; and failure to monitor the temperatures of the steam room. The second tracked the allegations of the first cause of action and changed the theory of recovery from negligence to wanton misconduct. The third applied only to defendant Honeywell, Inc., and was brought under the Alabama Extended Manufacturer's Liability Doctrine. The defendants raised the defenses of contributory negligence and assumption of risk.

The motion of defendants Olympia Spa, David Polur, and Brenda McCall for a directed verdict filed at the close of plaintiff's evidence was granted as to Count Two (wanton misconduct), but denied as to Count One. The jury returned a verdict in favor of the plaintiff, and against defendants Olympia Spa, David Polur, and Brenda McCall for the sum of $3 million. The jury ruled in favor of defendants Jack Nicklaus Club Management, Inc., and Honeywell, Inc.

Olympia Spa, Polur, and McCall filed motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial or for a remittitur. These motions were denied, and they appealed.

Mr. and Mrs. Johnson joined the Olympia Spa in Dothan in February 1984. Mrs. Johnson sought therapy in the mineral pool for her arthritis and because she had had knee surgery. The Johnsons were regulars at the spa, usually visiting there two or three times a week and following a customary routine of bathing in the mineral pool.

On August 22, 1984, the Johnsons and their son Frank arrived at the spa around 5:30 p.m. They went into the mineral pool and stayed as long as ten minutes. They then separated. Mr. Johnson and Frank left the men's dressing room to wait for Mrs. Johnson. After 10 or 15 minutes Frank Johnson asked the young woman on duty to check on Mrs. Johnson. On the first check of the steam room the thickness of the steam prevented her seeing inside it. On the second check, she discovered Mrs. Johnson in the steam room lying on the floor with her arm under her head. Her skin was red and starting to peel off the upper portion of her body. One piece that peeled off of the top of her hand still had her fingernails on it. She was trembling and mumbling. The paramedics were called. She died.

An autopsy was performed on Mrs. Johnson by Dr. Gary Dean Cumberland, a forensic pathologist. He noted thermal (burn) injuries to her head and face area as well as to her chest and upper arm region. There were second and third degree burns over 30% of her body. Dr. Cumberland determined that she died because of these burns and the effect of heat upon her body. Mrs. Johnson tested negative for alcohol and drugs.

Dr. Cumberland found a bruise on the back side of Mrs. Johnson's head, which, he said, was consistent with a fall to the rear, and a bruise on the front part of her left knee, which, he said, was consistent with a fall forward, but he was unable to say whether the bruises were obtained before or after the burn injuries occurred. He said her death was caused by the burns she received from excessive steam, although her exact location in the steam room when she was burned is unknown.

The testimony established that human skin begins to burn when exposed to a temperature of 120? Fahrenheit. This is the lower level of safety. In order to sustain a third degree burn, human skin would have to be exposed to 130? Fahrenheit for a period of two minutes. At a temperature of 150? Fahrenheit, human skin will burn within a second or two. The spa supervisor testified that she had not had any complaints from "experienced users" of the steam room that it was too hot. However, a former exployee testified that he had received complaints about excessive heat in the steam rooms and had reported this to the maintenance department. An expert for Honeywell testified that tests revealed that the two thermometers used in the steam room were out of calibration. One was 25? off and the other was 40? off. These were the thermostats that were placed in the steam room to keep it at 110? Fahrenheit.

Mrs. Johnson had previously had problems with vertigo. She had visited her doctor one week before her death for a regular check-up. She was not at that time experiencing difficulty with vertigo, and her doctor testified that she was doing "remarkably well." He told her that there was no need for her to return for six months.

Defendants contend that her burns were the result of a fall. However, even if she did fall directly in front of the steam vent, the testimony was that she could not have burned to death if the temperature had been maintained below 120? Fahrenheit. Defendants further contend that she was warned by Brenda McCall, an employee of the Spa, not to go into the steam room. Ms. McCall was sure there could have been other visitors to the spa that she warned about the steam room, but she was unable to identify any by name.

The appellants raise five issues for review.

I.

The first issue is whether the trial court erred in admitting into evidence five photographs of the upper portion of the burned body of Mrs. Johnson. The appellants charge that these are "gruesome photographs" and that the prejudicial effect of the photographs far outweighed any probative value. The appellees point out that this is a wrongful death case and argue that the photographs were properly admitted because they depict the location and severity of the death-causing injuries.

The general rule for the admission of photographs is as follows:

"A photograph is relevant and admissible in order to explain and apply the evidence when it helps the jury to better understand the persons, objects, locale or conditions which are in issue." Maffett v. Roberts, 388 So.2d 972 (Ala.1980), citing Moon v. Nolen, 294 Ala. 454, 318 So.2d 690, 693 (1975).

However, it remains within the sound discretion of the trial court to rule as to a particular photograph. The trial judge is vested with discretion not only in his determination as to the preliminary proofs offered to identify the photograph or to prove that the photograph is an accurate representation of the objects it purports to portray, but also in his determination of whether the picture will aid the jury or tend to confuse or prejudice it. Moon v. Nolen, supra. The discretion of the trial court is not reversible in the absence of an abuse of that discretion. Godwin v. Jerkins, 282 Ala. 11, 208 So.2d 210 (1968); Moon v. Nolen, supra; Maffett v. Roberts, supra.; C. Gamble, McElroy's Alabama Evidence, § 123.01(1), (4) (3d ed.1977).

We have examined the record and the photographs. We find no abuse of discretion by the trial court in admitting the photographs.

II.

The defendants next claim that the design of the steam room was allowed to be injected into the trial and that the judge refused to give a needed curative charge. Plaintiff claimed negligent maintenance in his complaint. Defendants argue that plaintiff attempted to prove design defect at trial, thus creating a variance between pleading and proof. Defendants rely upon two New York cases, Bradley v. State, 132 A.D.2d 816, 517 N.Y.S.2d 818 (1987), and Hugelmaier v. Town of Sweden, 130 A.D.2d 962, 516 N.Y.S.2d 378 (1987), as standing for the proposition that proof of defective design in a case where the plaintiff claims negligent maintenance alone creates a material variance between pleading and proof and thus can constitute reversible error.

An examination of the record reflects that this did not happen in this case. The plaintiff did not attempt to prove negligent design, and the judge was vigilant in keeping the issue of design out of the case. During the testimony of Dr. Cumberland, the forensic pathologist, he was asked numerous questions regarding the cause and manner of Mrs. Johnson's death. The following question was asked during direct examination:

"Q. All right, sir.

"If you vent the steam, and it does exceed a hundred and twenty degrees, if you vent it at the top of the room, instead of the bottom of the room then there's no way anybody on the floor, if it's maintained at a hundred and ten degrees is going to be burned; is there?"

Defendants objected to this question, claiming it raised the issue of design, which was not indicated by the pleadings. Lengthy argument of counsel followed outside the presence of the jury. Counsel for plaintiff explained his question as follows:

"MR. CUNNINGHAM: And we would state for the record, we've not asked the doctor about whether somebody should or should not move the vent, but the question was if the steam were vented at the top instead of where it was vented then, could you still be burned.

"Now they are using, as a defense, both of them, the proposition, well, she fell in front of the vent...