Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc.
| Decision Date | 14 March 1986 |
| Citation | 510 Pa. 1,507 A.2d 1 |
| Parties | , 31 Ed. Law Rep. 882 Concepcion L. RIVERA, Administratrix of the Estate of Frederick L. Rivera, Deceased, Appellant, v. The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. a/k/a St. Charles Seminary and Our Lady of Lourdes Catholic Church, Appellees. Concepcion L. RIVERA, Administratrix of the Estate of Frederick L. Rivera, Deceased, Appellee, v. The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. a/k/a St. Charles Seminary and Our Lady of Lourdes Catholic Church. Appeal of the PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. a/k/a St. Charles Seminary. |
| Court | Pennsylvania Supreme Court |
Jeffrey M. Stopford, Charles W. Craven, Philadelphia, for appellant.
Byron L. Milner, Theodore H. Lunine, Philadelphia, for Our Lady of Lourdes.
Charles W. Craven, (at No. 157), Jeffrey M. Stopford, (at No. 158), Philadelphia, for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
This is a comparative negligence case. 1 Concepcion Rivera (plaintiff or Ms. Rivera) and the Philadelphia Theological Seminary of St. Charles Borromeo, Inc. (Seminary) cross appeal, by allowance, a Superior Court judgment reversing a judgment entered by the Philadelphia Court of Common Pleas on a jury verdict for the plaintiff and against the Seminary and Our Lady of Lourdes Catholic Church (Church). Superior Court awarded the Church and the Seminary a new trial on both liability and damage issues. We now modify Superior Court's order by reinstating the judgment entered against the Church and remanding the case to Common Pleas for a new trial limited to the issue of the Seminary's liability and, in the event of its liability, an apportionment of causal negligence between the Church and the Seminary.
This case arose as a result of the accidental drowning of a twelve-year old boy, Frederick L. Rivera, in an indoor swimming pool owned by the Philadelphia Theological Seminary of St. Charles Borromeo, Inc. Rivera, a seventh grade altar boy from Our Lady of Lourdes Catholic Church, died during an evening swim party at the Seminary. The party was organized for the altar boys by Father Anthony Flynn, a priest then assigned to that Church.
Concepcion Rivera, the decedent's mother and administratrix of his estate, instituted these wrongful death and survival actions against the Church, the Seminary and Father Flynn. They were tried before a jury. It returned a verdict in favor of the plaintiff finding the Church and Seminary 65% and 30% negligent, respectively. 2 In addition, the jury found the decedent 5% negligent. 3 The parties filed post-trial motions. The plaintiff sought judgment n.o.v. challenging the jury's determination that her son was contributorily negligent. The Seminary also sought judgment n.o.v. or, alternatively, a new trial on both the liability and damage issues. In addition, the Seminary claimed indemnification from the Church. The Church sought a judgment n.o.v. or a new trial on damages. 4 All of the above motions were denied by the Common Pleas Court, sitting en banc, and judgments were entered on the verdict.
All parties then cross-appealed to Superior Court. That court ruled that the jury could reasonably have found the decedent negligent and that, therefore, the trial court had properly denied plaintiff's motion for judgment n.o.v.
Before Superior Court, the Seminary argued that under the Act of February 2, 1966, P.L. (1965) 1860, 68 P.S. §§ 477-1-477-8 (Recreation Use Act), 5 it could be held liable for Frederick Rivera's death only if the plaintiff proved its "wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity," 68 P.S. § 477-3, and that the plaintiff failed to meet its burden of proof on this issue. Superior Court rejected this argument holding that public bathing places and swimming pools do not fall within the purview of the Recreation Use Act but are, instead, subject to regulation by the Department of Environmental Resources (DER) under the Public Bathing Law, Act of June 23, 1931, P.L. 899, as amended, 35 P.S. §§ 672-680d, 6 and under which the Seminary might be found liable for violating the agency's regulations requiring lifeguards at all times when a public pool is open for use. Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 326 Pa.Superior Ct. 509, 474 A.2d 605 (1984).
Nevertheless, Superior Court ordered a new trial on the ground that the trial judge had issued erroneous and confusing instructions to the jury regarding the theories of negligence under which the plaintiff sought recovery from the Seminary for her son's death. 7 The court awarded a new trial, generally, in favor of all parties on both liability and damage issues. 8
Finally, even though none of the parties challenged the trial court's directed verdict in favor of Father Flynn, Superior Court raised that issue sua sponte and held that the lower court's dismissal of Father Flynn was a manifest abuse of discretion.
These cross appeals followed. 9 On this appeal, Ms. Rivera contends, first, that the Church should be bound by the judgment of liability entered against it because the Church appealed to Superior Court only from the damages award and because Superior Court's award of a new trial was based on trial error which affected the Seminary alone. Second, Ms. Rivera maintains that the Seminary's new trial should be limited to relitigation of liability issues because the damages were fully and fairly litigated in the first trial. 10
The Seminary contends, first, that it cannot be held liable for the death of Frederick Rivera because the Recreation Use Act provides it with immunity from common law liability on this record. In addition, the Seminary argues that, in promulgating regulations governing public pool safety, including the regulation requiring lifeguards, DER exceeded its statutory authority under the Public Bathing Law and, consequently, the regulations are invalid. The Seminary alternatively argues that the safety regulations are inconsistent with the Recreation Use Act, which imposes no affirmative duties on landowners and are, to that extent, invalid. 11 See 68 P.S. § 477-8. 12 In addition, the Seminary argues that the issue of Father Flynn's liability should be relitigated. 13 Finally, the Seminary reiterates its claim that it would be entitled to indemnification from the Church and Father Flynn if this Court does not absolve it from all liability and a jury on remand again imposes liability on it.
In summary, the evidence was sufficient to support the jury's finding that decedent was 5% negligent, and because the Church has not preserved any other liability issues it cannot contend that it was less than 65% negligent. We are thus required to determine (1) whether the Recreation Use Act provides immunity to the Seminary, (2) whether the Public Bathing Law applies and the regulations promulgated by DER pursuant to that law are valid, (3) whether the issues of damages and of Father Flynn's liability should be relitigated, (4) whether the Seminary is entitled to a new trial on the issue of its liability, (5) if so, whether it is entitled to indemnification from the Church and Father Flynn, and (6) the scope of that trial.
The evidence presented at trial established that no one saw Frederick Rivera go below the surface or otherwise experience difficulty in the water. Two boys present during the evening in question testified that they saw the decedent at the deep end of the pool. One testified that he saw Rivera "doggie paddling" near the diving board at the deep end. The boy asked Rivera if he was "all right" and the decedent responded affirmatively. Rivera's body was noticed on the bottom of the deep end of the pool at approximately 8:15 p.m., twenty minutes after the group entered the pool area. Father Flynn was not at the pool when the body was discovered but was, instead, in a nearby locker room where he had gone to get the phone number of the pizza shop he planned to take the boys to after the swim. No other adult was supervising the boys at that time. On being apprised of the situation, Father Flynn, who is an excellent swimmer and trained in water rescue, dove into the pool and retrieved Rivera's body. His attempts to revive the boy were unsuccessful.
The evidence indicated that Rivera was a poor swimmer who, during previous outings, had been restricted from entering water deeper than his height. The evidence further established that the pool depths were clearly marked and that Rivera's body was found in the area of the pool which was twelve feet deep and so marked.
Father Flynn brought the boys to the pool without having specifically obtained permission in advance from the Seminary or having otherwise notified them of the swimming party he had planned. It was his understanding that a priest, and any group of persons the priest invited, were permitted to use the pool without obtaining prior permission from the Seminary.
Vincent Rossi, a lay teacher at Our Lady of Lourdes Catholic Church, testified that, from 1970 or 1971 to 1976, he brought groups of school children to the Seminary pool twice a week. Mr. Rossi further testified that he was not aware of any rules or regulations at all concerning the use of the pool, nor specifically of any rule requiring advance permission to either use it or prescribing hours during which the pool could be used by outside groups. Both defendants admitted that Father Flynn, a graduate of the Seminary, brought groups to the pool about 75 to 100 times during his tenure of four and one-half years at the Church and had organized similar excursions prior to his assignment with the defendant Church.
The entrance to the pool was locked when the boys, accompanied by Father Flynn and two...
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