Ranke v. Fowler Real Estate Co.
| Decision Date | 18 April 1972 |
| Docket Number | No. 71--318,71--318 |
| Citation | 497 P.2d 1268,30 Colo.App. 543 |
| Parties | James C. RANKE and Florence V. Ranke, Father and Mother and Natural Parents of Edward M. Ranke, a Minor, Deceased, Plaintiffs-Appellees, v. FOWLER REAL ESTATE COMPANY, Inc., Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Collier, Hayden & Sweeney, George T. Sweeney, William G. Ross, Denver, for plaintiffs-appellees.
Paul A. Morris, Boulder, for defendant-appellant.
Plaintiffs brought a wrongful death action to recover damages for the death of their fourteen-year-old son, Edward. Trial was to a jury and plaintiffs were awarded damages of $7500. On appeal defendant seeks reversal and remand for a new trial.
On July 31, 1969, Edward was one of a group of newsboys attending a swimming pool party at Eldorado Springs sponsored by the Denver Post, Inc. The resort area and pool at Eldorado Springs is owned and operated by the defendant, Fowler Real Estate Company, Inc., and is open to the public upon payment of admission fees. Shortly after the group arrived, Edward was discovered on the bottom of the deep end of the pool by the lifeguard. Efforts to revive him failed. His parents, the plaintiffs, brought suit in the Denver District Court against Fowler Real Estate Company, Inc., (hereinafter, Fowler or defendant) and the Denver Post, Inc., (hereinafter, the Post). Motions for change of venue by both defendants were denied, and defendants cross-claimed against each other and filed answers to plaintiffs' complaint and to these cross-claims, each denying its own liability and asserting the negligence of the other. Just prior to commencement of the trial, plaintiffs' motion to dismiss the complaint as to the Post was granted, and the Post's cross-claim against Fowler was dismissed. After opening arguments by counsel, Fowler's cross-claim against the Post was also dismissed and the case proceeded as between plaintiffs and defendant Fowler.
The defendant alleges that the refusal to grant a change of venue was error. C.R.C.P. 98(c) provides that an action shall be tried in the county where any one of the defendants resides at the commencement of the action. Since the Post was served in Denver County and was a defendant when the complaint was filed and remained a party to the action until after the trial began, Denver County was a proper place of venue. There was no error in the court's refusal to grant a change of venue.
Fowler claimed that Edward was contributorily negligent in swimming at the deep end of the pool contrary to his father's orders and in eating a short time prior to swimming. The court dismissed that defense at the conclusion of all the evidence.
Contributory negligence is a question of law for the court to determine when the facts are undisputed and reasonable men can draw but one inference from them. See Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201; Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460. Although it is undisputed that Edward was a poor swimmer, that his father had ordered him not to go to the deep end of the pool, and that his body was found at the deep end, these facts are not sufficient to support an inference that Edward engaged in any negligent conduct. The jury could not reasonably infer contributory negligence from the location of the body when found in the pool, since there is no showing as to how the body got into the pool.
As to his eating, although the evidence of when Edward last ate was in dispute, it was clear that he had not eaten within the time period before swimming prescribed by the American Red Cross. Thus, these facts furnish no basis from which the jury could have inferred negligence.
The trial judge did not err in removing the issue of contributory negligence from the jury.
In submitting the issue of defendant's negligence, the court gave the following instruction:
'It is the duty of the owner of a swimming pool to use reasonable care for the safety of any invitee of the swimming pool.'
The defendant asserts that the court should have given his tendered instruction which added to the above, 'and that the owner is not to be regarded as an insuror for the life and safety of those using the premises.'
The instruction given is taken directly from Colorado Jury Instructions 12:22 and correctly sets forth the duty imposed upon defendant. The degree of care is the same as is required by Mile High Fence Co. v. Radovich, Colo., 489 P.2d 308. Defendant's additional phrase merely negatives a higher duty, which was not placed in issue by the evidence or the instructions. The applicable law was adequately set forth and the trial court did not err in refusing the requested instruction. See Montgomery Ward & Co. v. Kerns, Colo., 470 P.2d 34; Riss & Co., Inc. v. Galloway,108 Colo. 93, 114 P.2d 550.
The defendant further contends that the verdict was not supported by evidence that defendant was negligent, or if negligent that such negligence was the proximate cause of Edward's death. Although negligence is not presumed from the happening of an accident, it may be inferred from the surrounding facts and circumstances, and where two equally plausible conclusions are deducible from the circumstances, the question is for the jury. Remley v. Newton, 147 Colo. 401, 364 P.2d 581.
There was testimony to the effect that the lifeguard was inattentive to his duties. This testimony, if believed by the jury, would support a finding of negligence and a further conclusion that such negligence was a proximate cause of Edward's death. Similarly, the circumstances surrounding the death, while not conclusively establishing drowning, were such that the jury could find that Edward drowned.
As stated in Arapahoe Basin, Inc. v. Fischer, 28 Colo.App. 580, 475 P.2d 631:
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Fowler Real Estate Co., Inc. v. Ranke
...death action brought by the parents of Edward M. Ranke. The decision was by two judges with the third dissenting. Ranke v. Fowler Real Estate, 30 Colo.App. 543, 497 P.2d 1268. The fourteen-year old youth, Edward, went swimming at a pool located in Eldorado Springs, Colorado, owned and opera......