Snider v. Bob Heinlin Concrete Const. Co.

Decision Date16 April 1987
Docket NumberNo. 82A01-8605-CV-00132,82A01-8605-CV-00132
Citation506 N.E.2d 77
PartiesDiane M. SNIDER, Guardian of the Person and Estate of Donnie Ray Snider, II, Plaintiff-Appellant v. BOB HEINLIN CONCRETE CONSTRUCTION COMPANY, Defendant-Appellee.
CourtIndiana Appellate Court

Charles C. Griffith, Leslie C. Shively, Johnson, Carroll & Griffith, Evansville, for plaintiff-appellant.

Fred S. White, Bamberger, Foreman, Oswald and Hahn, Evansville, for defendant-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant, Diane M. Snider (Snider), Guardian of the Person and Estate of Donnie Ray Snider, II, appeals the decision of the Vanderburgh Superior Court, which granted summary judgment in favor of the defendant-appellee, Bob Heinlin Concrete Construction Company (Heinlin), denying Snider's allegations of negligence.

We affirm.

STATEMENT OF THE FACTS

In 1980-81, Sam Biggerstaff, an engineer, was employed by Paul and Robert Hatfield to draw plans for the Regency Club Apartment Complex, including the The finished pool and the Biggerstaff plans, as specifically amended and authorized by the Hatfields, and built by Heinlin, can be described as follows. It was 50 feet long and 20 feet wide. At the shallow end it had steps for entry into the pool. The water depth, commencing at a point six inches below the deck, was three feet at the shallow end. From the shallow end out 14 feet to a floating rope divider, which accompanied the kit to divide the shallow from the deeper end, the depth remained at three feet. From there the bottom sloped off to mid-point reaching a depth of five feet two and one-half inches. Around the edge of the pool three or four feet down, a safety ledge of four inches or more protruded out from the side upon which weak swimmers could rest. This too was a part of the kit. The fiberglass walls were 42 inches high. Below the bottom of the fiberglass walls the bottom of the pool is concrete and shaped in a curve to join the bottom of the fiberglass walls. The bottom of the pool from the side wall slopes gradually out three feet, where the bottom becomes flat and remains flat until it reaches a point three feet from the next side wall.

swimming pool. The plans were submitted to and approved by the Administrative Building Council, and other required public bodies. The plans contained an option between the use of concrete and fiberglass walls in constructing the pool. The pool, as designed by Biggerstaff, was 50 feet long by 20 feet wide, with water depth of three feet at the shallow end and five feet, two and one-half inches at the deeper end. The walls formed a right angle to the bottom. By an oral contract (there was an unsigned written one), Heinlin, through Bob Heinlin, was employed to build it. Though following basic designs of Biggerstaff, the Hatfields, acting as contractor and manager, specifically authorized the pool to be built from a package or kit purchased from Swimcraft, which provided for fiberglass walls, instead of concrete. Heinlin was not required by the contract to provide a flow meter, automatic chemical treatment units, a deck around the pool, depth markers, pool rules, or diving or warning signs.

The pool needed a pump and filters with sufficient capacity to refilter the water every eight hours, or three times a day. Because Swimcraft did not have one of that capacity, one was purchased from B-Mark, which exceeded Biggerstaff's specification. It was the largest one B-Mark had. There was no flow meter or automatic chemical treatment system, but the pool was to be chemically treated manually. A chemical test kit came with the pool kit, but Hatfield had his own chemical test kit purchased from Firemaster. The pump and equipment were located and installed by Heinlin in a room provided by the Hatfields. The filter had a pressure gauge on it which had been installed at the factory, and Heinlin merely connected the unit. The pool had skimmers around it, which are small rectangular windows in the side of the pool four inches to six inches below the deck at the water line. The skimmers' purpose is to filter the water by use of a suction device which pulls surface water to it and takes off leaves and any other matter that is floating on the pool. A plastic drain cover is located in the deepest part of the pool and is twelve inches square. The pool had no diving board and was not to be utilized for diving. From Swimcraft, Heinlin got fiberglass wall panels, skimmers, return inlets, underwater lights, walk-in steps, hand rails and ladders; but the pump and filter came from B-Mark. Concrete and pipes were procured locally.

Heinlin's contract was to install the kit, and its job was finished after it was in place. Another contractor built the deck, and Heinlin had no instructions from the Hatfields to provide pool depth markings, warning signs, safety rails, or "no-diving" signs; Bob Heinlin assumed that these were the owner's responsibility. Heinlin had nothing to do with the chemicals. Bob Heinlin gave no instructions as to the operation of the pool, except telling Hatfield employees how to operate the pump and filter, and to backwash the system. The Hatfields concede that the pool was built according to their instructions, and that Robert Hatfield had specifically authorized all the changes from the Biggerstaff plans.

It is not shown that the Biggerstaff plans ever included rules, depth markings, or warning signs prohibiting diving. No such signs were put up at the pool by the Hatfields. There were no contour lines at the bottom of the pool, nor was there a full-time life guard. No records or logs of pool operation were kept. Complaints that the water in the pool was dirty were received in 1982 and July 1983 by the health authorities, and the problems were remedied.

On August 2, 1983, Donnie Ray Snider, II, age 21, a former high school athlete, who had swum and dived since age seven, and who had attended college for over a year, visited his girlfriend, Tammi, at her apartment at Regency. Such visitations, starting in June or July of 1983, had been regular, and Tammi and he had utilized the pool frequently. On those occasions, the last time being four or five days before August 2, 1983, he had swum and dived in the Regency pool and knew its depth and configuration. Donnie was five-foot six inches tall and weighed 145 pounds. On that date, Tammi and he went swimming at 12:30 or 1:00 p.m., and entered the pool by the steps. Before entering the pool, he could see that the water was murky, the first time he had seen it that way that summer. Ordinarily, he could see the bottom, but this time he could not. Because the pool was dirty, they quickly got out and sat on the deck. Some child had lost his snorkel, so Donnie, Tammi, and others searched the pool for it. Donnie waded all about the pool feeling the bottom with his feet, and after five minutes, he found the snorkel and retrieved it with his foot. During the search, he could feel the slope as he waded around, the water coming only to his chin in the deepest part. The floating rope was not in place. Tammi and he got out and resumed their positions on the deck. As they got ready to leave, Donnie decided to go into the pool and cool off. At a point in the deep end, near the ladder, he took two quick steps and, by his own testimony, did a "swan dive"--a dive executed by extending his arms out from the side of his shoulders intending to bring them together in front of his head just before entering the water. However, he did not get his arms in front of his head in time, and he went into the water head first. He hit something, by reason of which he sustained a severe spinal injury. It was not established whether Donnie hit the bottom, sides, or safety ledge. 1

Dr. Eric William Mood, Ph.D., Snider's expert witness, was deposed and stated that the pool was deficient in a number of ways:

(a) There were no automatic chemical feed units, which provide a disinfectant on a steady regulated basis, without which there occurs a growth of bacteria which, as significant here, makes the water murky. Record of its operation must be kept so that its effect can be monitored.

(b) There was no flow meter, which would provide information that the water was circulating once every eight hours. A drop in the reading would indicate that the filter was clogged.

(c) There was a pressure gauge, which indicates the filter is clogged and a backwashing is required, that was located on the filter in such a way that it was difficult to read (one had to stoop over to read it). Such created an inference that it was not properly monitored.

(d) There was a lack of records by pool management as to chemical use, in order to monitor the whole pool program as required by the State Board of Health.

(e) There was no adequate chemical test kit.

(f) There was a non-standard and hazardous shape to the pool bottom and the safety ledge, which was more than four inches wide, and could not be seen in murky water.

(g) There were no warning signs, no "no-diving" signs, no depth markings, no pool rules posted; and there was a defective ladder and a missing drain cover.

ISSUES

Although the parties to this appeal differ in the expression of the issues involved, the central issue is whether there is an absence of a genuine issue of material fact as to the liability of Heinlin, an independent contractor, for the injuries sustained by Donnie Ray Snider, a third party, entitling Heinlin to summary judgment as a matter of law. Because of our resolution of this case, we need not address the other issues presented.

DISCUSSION AND DECISION

In reviewing a motion for summary judgment on appeal, we must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. Flynn v. Klineman (1980), Ind.App., 403 N.E.2d 1117. We will affirm the trial court's judgment if it can be sustainable on any...

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