Rickwalt v. Richfield Lakes Corp.

• Decision Date: 06 September 2001
• Docket Number: Docket No. 210591.
• Citation: Rickwalt v. Richfield Lakes Corp., 246 Mich.App. 450, 633 N.W.2d 418 (Mich. App. 2001)
• Parties: Patricia RICKWALT, Personal Representative of the Estate of Willard Rickwalt, Deceased, Plaintiff-Appellee, v. RICHFIELD LAKES CORPORATION, d/b/a Smokerise Vacation Resort, Defendant-Appellant.
• Court: Court of Appeal of Michigan

633 N.W.2d 418

246 Mich. App. 450

Patricia RICKWALT, Personal Representative of the Estate of Willard Rickwalt, Deceased, Plaintiff-Appellee, v. RICHFIELD LAKES CORPORATION, d/b/a Smokerise Vacation Resort, Defendant-Appellant.

Docket No. 210591.

Court of Appeals of Michigan.

Submitted December 8, 2000, at Detroit.

Decided June 15, 2001, at 9:20 a.m.

Released for Publication September 6, 2001.

MacAloon, Feldman & Weingarden (by Donald J. MacAloon) (Bendure & Thomas by Victor S. Valenti, of counsel), Birmingham, for the plaintiff.

Henneke, McKone, Fraim & Dawes, P.C. (by Edward G. Henneke), Flint, for the defendant.

Before SAWYER, P.J., and JANSEN and GAGE, JJ.

GAGE, J.

This wrongful death action arises from the drowning death of plaintiff's decedent at defendant's vacation resort. The decedent, who was sixty-six years of age at the time of his death, went swimming with two grandchildren early one evening in August 1995. Notwithstanding that ten to fifteen individuals were present on defendant's beach, the decedent drowned, unnoticed by anyone, including defendant's on-duty lifeguards. The decedent's body was discovered just below the water surface, approximately fifteen feet from shore and almost directly in front of defendant's two lifeguards. After an eight-day trial, the jury found that defendant negligently and proximately caused plaintiff's decedent's death, and awarded plaintiff $410,000 in total damages. The trial court further awarded plaintiff $6,065.83 in taxable costs, and $71,363.97 in interest. Defendant appeals as of right. We affirm the jury's verdict, reverse in part the trial court's awards of costs and interest, and remand.

I

Defendant first contends that no factual basis supported many of the opinions offered by plaintiff's expert, Frank Pia, and that the trial court therefore erred in permitting Pia's testimony.

Absent an abuse of discretion, the qualification of a witness as an expert and the admissibility of his testimony will not be reversed on appeal. The trial court may qualify a witness as an expert if it determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. The facts and data on which the expert relies in formulating an opinion must be reliable. [Anton v. State Farm Mut. Automobile Ins. Co., 238 Mich.App. 673, 677, 607 N.W.2d 123 (1999) (citations omitted).]

See also MRE 702-705. With respect to the trial court's evidentiary rulings, an abuse of discretion exists "only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made." Berryman v. K Mart Corp., 193 Mich.App. 88, 98, 483 N.W.2d 642 (1992), quoting Gore v. Rains & Block, 189 Mich.App. 729, 737, 473 N.W.2d 813 (1991).

Pia testified that he provided consulting services involving drowning prevention and lifeguard training, as part of Water Safety Films, Inc., which also produced and distributed lifeguard training movies.¹ Beginning in 1959, Pia worked for twenty-one summers as a lifeguard watching Orchard Beach in the Bronx, New York. Pia eventually achieved the beach's chief lifeguard position, which involved training other lifeguards. According to Pia, crowds of between 150,000 to 200,000 visited Orchard Beach at a time, and beach lifeguards rescued approximately 2,000 swimmers each summer. While working at the beach, Pia conducted original research that uncovered certain predictable behavior of drowning swimmers. Pia's research, which included filming drowning swimmers at Orchard Beach, led him to conclude that drowning swimmers of all ages and sizes and genders exhibited certain behavior and movements characteristic of an instinctive drowning response, and that drownings usually resulted from lifeguards' failure to recognize this behavior or from the lifeguards' inattentiveness. Pia wrote many articles, produced films, and lectured to numerous national and international organizations, including the American Red Cross and United States Coast Guard, regarding his water safety research and lifeguard training. Pia authored three chapters of the American Red Cross' current "Lifeguarding Today" textbook, and other researchers had duplicated and verified Pia's observation of the instinctive drowning response. Pia created two new drowning victim classifications, the distressed swimmer and the active drowning victim, in addition to a preexisting category of passive drowning victim. Pia explained that (1) distressed swimmers experienced some difficulty swimming that prevented their return to safety, but still could keep their heads above water and wave or call for help, (2) actively drowning individuals were unable to support themselves in water and exhibited the instinctive drowning response; these individuals could not wave and, because of suffocation, could not cry for help; (3) passive drowning victims passed out in the water for physiological reasons and simply floated face down without indicating a struggle.

A

Defendant does not specifically contest Pia's water safety expertise, but instead essentially submits that no facts of record supported Pia's conclusion that the decedent fell into the active drowning victim category. It appears undisputed that while approximately ten to fifteen people besides defendant's two lifeguards were present on the beach near the time of the decedent's drowning, no witnesses observed the decedent go under the water or heard any indication of the decedent's distress. Defendant therefore theorized at trial that the decedent must have been a passive drowning victim, who quickly and quietly submerged below the water undetected by defendant's lifeguards. To the contrary, however, Pia believed that the decedent was an active drowning victim because the decedent's medical records indicated that the decedent nearly drowned,² not that the decedent first experienced cardiac arrest in the water. Therefore, the death certificate findings ruled out the physiological causes of passive drowning.³ Pia explained that because in his experience active drowning victims gripped by the instinctive drowning response were suffocating and consequently could not call for help, the lack of any witnesses to signs of struggle by the decedent did not necessarily signify that no struggle in fact occurred.⁴

B

Defendant also argues that the record did not support Pia's conclusion that defendant's lifeguards negligently failed to detect the decedent's drowning. Pia opined that defendant's lifeguards "should have recognized [the decedent's] instinctive drowning response and made a rescue before he submerged," but failed to observe the decedent because they were inattentive and improperly stationed. It was undisputed at trial that the decedent's drowning occurred approximately fifteen feet from shore almost directly before the lifeguards and that no one witnessed the event. Four witnesses indicated that the lifeguards were sitting on picnic tables either talking to each other or watching both the water and a group of young men playing football on the beach near the time one of the young men discovered the decedent's body just below the surface of the water. Furthermore, even the lifeguards acknowledged that only moments before discovery of the decedent's body they were distracted while watching and disciplining the group of young men playing football.

C

Defendant lastly challenges as without factual foundation Pia's conclusion that the lifeguards were not properly stationed at the time of the decedent's drowning. Pia opined that at the time of the drowning the lifeguards should have been watching the water from the lifeguard towers at the beach because their positions on picnic tables did not afford an adequate vantage point for providing zoned coverage of the swimming area. The lifeguards' supervisor similarly testified at trial that both lifeguards sitting on a picnic table could not effectively scan the swimming area and that the lifeguard towers provided a better view than the ground for scanning the water and helped to minimize distractions. Furthermore, one of the lifeguards acknowledged that an elevated view of the water facilitated the sighting of a submerged body. Although the other lifeguard denied at trial that the tower would have provided her a better view of the water, this testimony was impeached with the lifeguard's prior statement that the higher view from the tower would have eliminated the distraction of the football players' presence in front of her. While defendant emphasizes that Pia did not visit the beach where the drowning occurred, we note that Pia need not have visited or measured the accident scene as a prerequisite to offering his opinion. Any perceived deficiency associated with Pia's failure to visit and personally inspect the scene affected only the weight of his testimony, not its admissibility. Berryman, supra at 99, 483 N.W.2d 642.

In summary, Pia was a well-recognized water safety expert with twenty to thirty years of training and experience, whose opinions provided for the jury's consideration some insight regarding the nature of various types of drowning and whether defendant's lifeguards should have rescued the decedent. MRE 702, 704. After carefully reviewing the record, we find that Pia's comments, observations, and opinions were supported by his extensive training and experience, as well as facts that, although contested, were part of the evidentiary record. MRE 703. We conclude that the trial court did not abuse its discretion in admitting Pia's testimony. Anton, supra; Berryman, supra at 98, 483 N.W.2d 642.

II

Defendant next argues that the trial court erred in failing to read to the jury certain standard and nonstandard jury instructions that defendant requested and in utilizing a special verdict form embodying its erroneous rulings. We review jury...