St. Hill v. Tabor

• Decision Date: 01 May 1989
• Docket Number: No. 88-C-3042,88-C-3042
• Citation: St. Hill v. Tabor, 542 So.2d 499 (La. 1989)
• Parties: Angela Gonzales, Wife of/and Winston A. ST. HILL v. Carolyn Kass TABOR a/k/a Carolyn Falgout and State Farm Fire and Casualty Company. 542 So.2d 499
• Court: Louisiana Supreme Court

Page 499

542 So.2d 499

Angela Gonzales, Wife of/and Winston A. ST. HILL v.Carolyn Kass TABOR a/k/a Carolyn Falgout and State Farm Fire and Casualty Company.

No. 88-C-3042.

542 So.2d 499

Supreme Court of Louisiana.

May 1, 1989.

Morris Reed, Edward Drury, New Orleans, for applicants.

Daryl Higgins, Windhorst, Gaudry, Talley & Ranson, Gretna, for respondent.

MARCUS, Justice.

On May 11, 1985Carolyn Falgout hosted at her home a graduation party honoring her son Steven Tabor who had received his GED degree.The invitations made by Steven called the party an "Anything Goes Pool Party."These invitations were distributed by a friend of Steven's to students at John Ehret High School, which Steven had at one time attended.In addition, other invitations were issued verbally.About 150 guests attended the party, ranging in ages from sixteen to twenty and including about twenty adult friends of the Falgouts.Several guests, including Steven Tabor and his sister, were certified life guards.However, no one in particular was assigned to act as life guard for the evening.The morning of the party, Steven and his brother-in-law cleaned the Falgout pool and added extra chlorine in anticipation of the large number of guests expected to attend and to swim.Mrs. Falgout prepared and served 500 hot dogs the evening of the party.She also provided soft drinks for the guests.Steven's father and uncle each bought a keg of beer and Steven made a batch of "jungle juice" which contained, among other ingredients, two bottles of rum.One of the guests brought "spiked watermelon" to the party.No one was asked to furnish proof of age before getting either beer or "jungle juice."However Mrs. Falgout arranged to have a police officer present to make sure that if anyone drank he did not leave the party drunk or he got a ride home rather than drive himself.In addition, the officer was to insure that general order was kept and that no fights broke out or problems arose with party crashers.

The guests began arriving at the Falgout home about 7:00 P.M.The party took place in the back yard where the swimming pool was located and where a friend of the Falgout family had set up his stereo system to provide music for the party and to act as disc jockey.The stereo was about fifty feet from the swimming pool and the music was moderately loud.The main activity of the evening centered around the swimming pool where as many as thirty guests were swimming at one time.The pool, which was twenty-two feet wide and thirty-two feet long, ranged in depth from three and a half feet to ten feet.Near the shallow end was a "sliding board" and at the deep end there was a diving board.The various depths were marked on the side of the pool, but there was no rope divider between the deep and shallow ends.The lighting surrounding the pool consisted of lights attached to the side of the house, two underwater lights and one large spot light attached to a camper van parked about fifty feet from the pool.At some point during the party, the swimmers began to engage in horseplay around the pool.This horseplay lasted anywhere from ten minutes to an hour and involved pushing, shoving, and throwing of certain guests into the pool.Some of these "victims" were fully clothed, but most were wearing swimming attire.Early in the evening the water in the pool was clear, but it became cloudy as the evening progressed due to the number of people in the pool, people being thrown in wearing street clothes, dirt and grass from the area surrounding the pool being tracked into the pool, and watermelon being thrown into the pool.By the end of the party at 11:00 P.M., the water was so cloudy that the bottom of the pool was not visible even though there was some underwater lighting.

Shawn St. Hill, sixteen years old at the time of the graduation party, planned to attend.Both of his parents were out of town that weekend and he was left by himself.This was not abnormal because Mrs. St. Hill had been living in Baltimore, Maryland, for about a year and a half due to her job and Mr. St. Hill was employed as an offshore worker which required him to spend about seven days offshore and seven days onshore.The weekend of the Falgout party both Mr. and Mrs. St. Hill were in Baltimore.Before his father left for the weekend, Shawn told him that he was planning to go to a swimming party.When his father reminded him that he did not swim, Shawn told him not to worry.The fact was that Shawn did not know how to swim, but nevertheless went to the Falgout swimming party, changed from his street clothes into swimming attire, and entered the pool.He was seen going down the "sliding board," playing in the shallow end of the pool, hanging on to the side in the deep end and participating in some of the horseplay during which he threw a friend into the pool at least twice and was himself thrown in the pool twice before he told that individual that he could not swim.At about 10:00 P.M. Steven Tabor and some of the other guests decided to hold a diving competition.After several dives, Steven did a flip and went feet first into the water and all the way to the bottom of the pool.While under the water he felt an arm and then saw Shawn submerged.Steven struggled to the surface holding Shawn and called for help.Several people aided him in pulling Shawn out of the water.CPR was immediately begun and an ambulance was called and arrived within minutes.Nevertheless, efforts to revive Shawn both poolside and in the hospital were futile.

An investigation into Shawn's drowning death shed little light on the cause of the drowning.No one remembered seeing him immediately before the drowning nor could the investigating officer determine how he came to be in the deep end of the pool.As evidenced by the fact that his heart did respond to electrical shock administered when he was brought into the hospital, Shawn probably had been submerged only a few minutes prior to being pulled from the pool.An autopsy revealed that he had been alive when he entered the water and that his death was by drowning.The autopsy further showed that his blood alcohol level was 0.028 percent, well below the level of 0.10 percent at which a person is legally deemed intoxicated.An analysis of the vitreous or eye fluid revealed a 0.055 percent level of drinking alcohol.

Mr. and Mrs. St. Hill, parents of Shawn, brought suit against Mrs. Falgout, State Farm Fire and Casualty Company(her primary insurer) and Aetna Casualty and Surety Company(her excess insurer).Defendants answered generally denying the allegations of plaintiffs' petition and affirmatively asserting that the accident was caused by the negligence of Shawn.Prior to trial, State Farm settled plaintiffs' claims against it and Mrs. Falgout for $100,000 (policy limits) with the reservation of plaintiffs' rights against Aetna.Judgment was rendered dismissing the suit against State Farm and Mrs. Falgout "up to $100,000."

After trial, the jury found that Mrs. Falgout was not negligent and the court entered a judgment in favor of defendants, Mrs. Falgout and Aetna, and against plaintiffs, dismissing plaintiffs' suit at their cost.Plaintiffs appealed.The court of appeal affirmed with one judge dissenting.¹Upon plaintiffs' application, we granted certiorari to review the correctness of that decision.²

The standard of conduct...