Rhodes v. U.S. W. Coast Taekwondo Ass'n, Inc.

• Decision Date: 16 September 2015
• Docket Number: A154975.,110101387
• Citation: 273 Or.App. 670,359 P.3d 1196
• Parties: Kimberlee RHODES, guardian ad litem for Victoria L. Rhodes, a Minor, Plaintiff–Appellant, v. U.S. WEST COAST TAEKWONDO ASSOCIATION, INC., an Oregon corporation, et al., Defendants, and Tigard–Tualatin School District, Defendant–Respondent.
• Court: Oregon Court of Appeals

273 Or.App. 670

359 P.3d 1196

Kimberlee RHODES, guardian ad litem for Victoria L. Rhodes, a Minor, Plaintiff–Appellant

v. U.S. WEST COAST TAEKWONDO ASSOCIATION, INC., an Oregon corporation, et al., DefendantsandTigard–Tualatin School District, Defendant–Respondent.

110101387

A154975.

Court of Appeals of Oregon.

Argued and Submitted Jan. 14, 2015.

Decided Sept. 16, 2015.

James S. Coon, Portland, argued the cause for appellant. With him on the briefs was Swanson Thomas, Coon & Newton.

Matthew J. Kalmanson, Portland, argued the cause for respondent. With him on the briefs was Hart Wagner LLP.

Before DeVORE, Presiding Judge, and HADLOCK, Judge, and GARRETT, Judge.

Opinion

GARRETT, J.

This is a negligence action brought on behalf of a six-year-old girl who was injured in a public swimming pool. Plaintiff, the child's guardian ad litem, sued multiple defendants, including the Tigard–Tualatin Aquatic District, which operated the pool, and the Tigard–Tualatin School District, which was the previous operator of the pool until it transferred the operation to the aquatic district 50 days before the accident. The issues on appeal concern plaintiff's attempt to impose liability on the school district. The trial court granted the school district's motion for summary judgment, concluding that plaintiff had failed to articulate a theory of negligence whereby it was reasonably foreseeable that the school district's conduct as the pool operator would create a risk of injury after the pool operation was transferred to a new entity.

On appeal, plaintiff assigns error to that ruling. Plaintiff also assigns error to the trial court's denial of plaintiff's motion to amend her complaint following the grant of summary judgment. For the reasons that follow, we conclude that plaintiff's complaint, construed in the light most favorable to plaintiff, adequately pleaded that the school district was negligent in its operation of the swimming pool up through the date of the transfer to the aquatic district, and that, under the circumstances of that transfer, it was reasonably foreseeable that the risks created by the school district's negligence would remain for a period of time under the aquatic district's management. We then conclude that the trial court erred in ruling—based, perhaps, on an overly narrow construction of plaintiff's allegations—that the risks of injury as a result of any negligence by the school district were unforeseeable as a matter of law because of the transfer of the pool operation to the aquatic district. We further reject the arguments made by the school district on appeal that the transfer of the pool operation to the aquatic district necessarily cut off the school district's liability for its own negligence. Accordingly, we reverse the judgment and remand for further proceedings.

BACKGROUND

We begin with an overview of the summary judgment record, “viewing the facts and all reasonable inferences that may be drawn from them in the light most favorable to plaintiff, as the nonmoving party.” Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 332, 83 P.3d 322 (2004).

On August 20, 2010, plaintiff brought her daughter, Victoria, to a summer program run by the U.S. West Coast Taekwondo Association (Taekwondo Association). Activities that afternoon included swimming at the pool located at Tigard High School. While the program participants were at the pool, Victoria was found motionless underwater. When medical workers arrived at the scene, Victoria did not have a pulse and was not breathing. She survived but suffered permanent injuries.

On the date of injury, the pool was operated by the newly established aquatic district, which had acquired control of the pool 50 days earlier from the school district.¹ Four employees were on duty, including three lifeguards. The aquatic district had leased the facility pursuant to a “Pool Facilities Lease and Operations Intergovernmental Agreement” (“lease” or “intergovernmental agreement”) from the school district. The lease provided that, as of July 1, 2010, the aquatic district was responsible for operating and maintaining the pool and for the pool's employees. Its responsibilities included hiring and managing personnel to staff the pool, meeting facility inspection requirements, ensuring that lifeguards and other supervisory employees have required certifications, and employing a pool manager to supervise pool operations. The lease required the aquatic district to offer employment to any former pool employees of the school district. The pool's aquatic director and the four employees who were on duty at the time of the incident had been previously employed by the school district.

The lease also provided that the aquatic district

“shall establish rules and regulations, including safety and sanitary standards, for use of the Facility, consistent with state regulations. These rules and regulations shall be followed at all times by persons using the Facility, including [school district] employees and participants.”

The aquatic district adopted its set of safety policies on August 11, 2010, 41 days after the lease became effective and nine days before Victoria's accident.

Plaintiff brought negligence claims against the Taekwondo Association and the aquatic district, alleging that they failed to keep a “proper look-out” over Victoria in the pool or failed to train staff to do so. Plaintiff later added the school district as a defendant, alleging that the school district failed to properly train its former staff (who became employees of the aquatic district) to keep a proper look-out in the pool. Following the school district's ORCP 21 motion to make more definite and certain, plaintiff filed her second amended complaint, the operative pleading for purposes of this appeal.

The second amended complaint alleged that the school district “operated the [pool] until July 2010, trained the persons who were staffers at the pool on the date of [the injury], and put in place certain procedures that remained in effect on the date of [the] incident.” In eight specifications of negligence, plaintiff alleged that the school district and aquatic district were negligent,

“a. In failing to require lifeguards to use the pool's elevated lifeguard chairs for patron surveillance;

“b. In failing to set procedures for staff and visiting groups on what to do when a youthful patron cannot be seen or is missing;

“c. In failing to create, establish and train staff on an emergency action plan to follow when a group uses the pool;

“d. In failing to require immediate lifeguard intervention when a patron is submerged and motionless in the pool for more than 30 seconds;

“e. In failing to create, establish and put into place procedures on how to use the sign in sheet or patron admission procedure to obtain an accurate patron count so lifeguards would know how many patrons were using the pool;

“f. In failing to create and establish procedures to require lifeguards to conduct swim tests of group members before they get into the pool, set and communicate procedures to group leaders, and set and enforce in-pool rules on where non-swimmers are allowed to go in the water so as to keep non-swimmers safe;

“g. In failing to maintain current lifeguard certification for the facility's aquatic director;

“h. In failing to have a policy of actively prohibiting pool users from engaging in breath holding contests because of the dangers of hyperventilation and loss of consciousness.”

As to the school district, paragraph 13 of the second amended complaint alleged as follows:

“It was reasonably foreseeable that [the school district's] actions * * * would create an unreasonable risk of harm to pool patrons like [Victoria] after the transfer of operation of the pool to [the aquatic district] because such deficiencies may not be identified and remedied in time to avoid the injury which occurred in this case.”

The school district moved for summary judgment, arguing that it could not be held liable for Victoria's injury as a matter of law, for two reasons. First, the school district characterized plaintiff's claim as alleging “employment-related negligence” and argued that it owed “no duty” as a matter of law because it no longer employed the persons who were alleged to have been negligent. Second, the school district argued that the injury to Victoria was not a foreseeable consequence of the school district's alleged negligence because the alleged negligence by the aquatic district, the operator of the pool at the time, was a superseding cause of the injury. As an alternative basis for summary judgment, the school district argued that plaintiff had failed to give timely tort claim notice as required by ORS 30.275.

In response to the motion, plaintiff argued that her negligence theory was not based on the school district's status as a former employer; rather, it was that the school district “passed over this whole operation, including those dangerous defects” in policies and management, and that it was “reasonably foreseeable that an unsafe pool policy or procedure will persist for some period after the transfer of control from one pool operator to another.”

In its “Opinion on Summary Judgment” dated June 19, 2013, the trial court was not persuaded by either party in full. The court apparently rejected the school district's first argument, which framed the issues in terms of “duty” or “no duty.” The court reasoned that, although the aquatic district owed a “special duty to plaintiff to make the premises reasonably safe” by virtue of its status as the pool operator, plaintiff's theory against the school district was not predicated on any particular status held, or duty owed, by the school district. Rather, the court viewed plaintiff's claim against the school district as implicating the basic foreseeability principle set out in Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987). As to that issue, the court did not adopt the school...