Smith v. American Flyers, Inc., 47031

• Decision Date: 20 May 1975
• Docket Number: No. 1,No. 47031,47031,1
• Citation: 1975 OK CIV APP 32,540 P.2d 1212
• Parties: James N. SMITH, Appellant, v. AMERICAN FLYERS, INC., Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1212

540 P.2d 1212

James N. SMITH, Appellant, v. AMERICAN FLYERS, INC., Appellee.

No. 47031.

Court of Appeals of Oklahoma, Division No. 1.

May 20, 1975.

Rehearing Denied July 8, 1975.

Certiorari Denied Sept. 16, 1975.

Released for Publication by Order of Court of Appeals Sept. 18, 1975.

Wallace, Bickford & Pasley by Harry L. Bickford, Ardmore, for appellant.

Rhodes, Hieronymus, Holloway & Wilson by Page Dobson and Gary C. Bachman, Oklahoma City, for appellee.

BOX, Judge:

An appeal by James N. Smith, plaintiff in the trial court, from summary judgment entered in favor of appellee and defendant below, American Flyers, Inc. For the sake of clarity we refer to the parties by their trial court designation.

At the time of the tragic accident for which plaintiff brought this action, he was a 28 year old student pilot enrolled in a flight school operated by the defendant, American Flyers, Inc. Defendant operated a swimming pool on the premises of the school and held it open to the general public for an admission fee. On July 20, 1967, plaintiff and two friends met at the swimming pool and began playing with three large airplane tire innertubes floating loose at the deep end of the pool, which belonged to defendant.

The three friends played with the innertubes at the deep end of the pool some fifteen or twenty minutes before the accident occurred. At times they were floating on the innertubes and at other times jumping on them from either side of the pool or tossing them back and forth. Plaintiff and another student also each ventured a dive through the center of an innertube. It was apparently not the first time that swimmers had done so, as plaintiff testified that he had seen others chance such a dive, successfully, on prior occasions.

But the second time plaintiff attempted such a dive was different. His friend, Charles mitchell, was holding the innertube as he had done on plaintiff's previous dive. As plaintiff entered the opening in the center of the innertube he struck his head on the side of the tube. The unfortunate outcome of this accident was that plaintiff was almost completely paralyzed. He subsequently brought this suit, claiming numerous acts of negligence on the part of the defendant. The trial court, after reviewing the depositions, exhibits, and briefs provided by the parties, granted summary judgment in favor of the defendant. For the reasons appearing below the judgment will be affirmed.

We pause to note that we have reviewed the merits of the trial court's action in granting summary judgment in light of the heavy burden, especially pronounced in negligence suits, resting on the moving party. Before a court may properly grant such a motion it must clearly appear that the movant is entitled to a judgment as a matter of law, viewing the supporting material in the light most favorable to his opponent. Northrup v. Montgomery Ward & Co., 529 P.2d 489. Unquestionably, if reasonable men exercising fair and impartial judgment could differ, summary judgment is unwarranted. It is well established, nevertheless, that if the defendant shows the lack of substantial controversy as to one fact material to plaintiff's cause of action which is favorable to defendant, summary judgment is proper even in a negligence action. Runyon v. Reid, Okl., 510 P.2d 943.

The trial court's remarks for the record indicates that his decision to grant summary judgment was based primarily on the lack of causal connection between the alleged negligence of the defendant and plaintiff's injury. While we agree that an obvious issue in this case is the problem of causation, both in the sense of causation in fact and proximate cause, we believe that plaintiff's evidence fails to demonstrate the existence of a necessary antecedent to resolution of that issue--a duty of care owed to the plaintiff. As the Supreme Court noted in Nicholson v. Tacker, Okl., 512 P.2d 156, at p. 158:

'It is an established rule of law that there can be no actionable negligence where the defendant has breached no duty owed to the plaintiff. Just because the defendant has created a risk which harmed the plaintiff that does not mean that, in the absence of some duty to the plaintiff, the defendant will be held liable.'

We believe that the trial judge also recognized the lack of duty owed to plaintiff and that this was an alternative ground of his decision.

The gravamen of plaintiff's right to relief is that the defendant, through its agents and servants, failed to perform certain affirmative acts which it was under a duty to do in order to protect plaintiff from the injury which he consequently received.

Plaintiff relies on two sources for the duty of care allegedly owed him by the defendant: (1) the duty imposed by various statutes and regulations pertaining to the safety of public bathing places; and (2) the well recognized duty of a landowner to an invitee.

For his statutory right to relief plaintiff relies on the following statutes in the public health code: (1) 63 O.S.1971, § 1--1015(b), which requires that public bathing places be maintained in a sanitary and safe condition; (2) 63 O.S.1971, § 1--1016, which requires that the equipment of public bathing places be such as to 'minimize accidents and to provide for the health and safety of the patrons'; and (3) 63 O.S.1971, § 1--1014 which authorizes the State Board of Health to promulgate reasonable regulations 'pertaining to the design, construction, safety, sanitation, and sanitary operation of public bathing places.'

Plaintiff also relies on numerous sections of 'The Oklahoma Public Bathing Place Interpretive Code,' a code of regulations promulgated by the State Board of Health. He urges that we consider these regulations as having the force and effect of a statute for purposes of proving 'negligence per se,' relying on Jack Cooper Transport Co. v. Griffin, Okl., 356 P.2d 748.

The Restatement of the Law of Torts 2d, § 286 provides:

'The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

'(a) to protect a class of persons which includes the one whose interest is invaded, and

'(b) to protect the particular interest which is invaded, and

'(c) to protect that interest against the kind of harm which has resulted, and

'(d) to protect that interest against the particular hazard from which the harm results.'

See also 57 Am.Jur.2d Negligence § 238; and Prosser, Law of Torts § 36, which note that the weight of authority is in accord with the Restatement on this point.

In light of these prerequisites to using the statutes or regulations as a standard of conduct, we fail to see how the above statutes are applicable in this case. The statutes no doubt have as their purpose the protection of...