Steele v. Inn of Vicksburg, Inc.

• Decision Date: 27 March 1997
• Docket Number: No. 94-CA-01091-SCT,94-CA-01091-SCT
• Citation: 697 So.2d 373
• Parties: Ms. Willie Lee STEELE, individually, and as Administratrix of the estate of Tremayne Steele, deceased v. INN OF VICKSBURG, INC. and Joe Pitzer.
• Court: Mississippi Supreme Court

Page 373

697 So.2d 373

Ms. Willie Lee STEELE, individually, and as Administratrix of the estate of Tremayne Steele, deceased v. INN OF VICKSBURG, INC. and Joe Pitzer.

No. 94-CA-01091-SCT.

Supreme Court of Mississippi.

March 27, 1997.

William Walker, Jr., Walker & Walker, Jackson, Marshall E. Sanders, Vicksburg, for appellant.

Samuel D. Habeeb, R.E. Parker, Jr., Varner Parker Sessums & Underwood, Vicksburg, for appellee.

Before SULLIVAN, P.J., and PITTMAN and BANKS, JJ.

SULLIVAN, Presiding Judge.

This case presents the second appeal to this Court in the wrongful death action by the surviving mother of Tremayne Steele against Inn of Vicksburg, Inc. (the Inn), a franchise of Holiday Inns, Inc., and the manager of the Inn, Joe Pitzer. Thirteen-year-old Tremayne Steele died as a result of a drowning accident in the swimming pool at the Inn on Saturday, April 25, 1987. Tremayne was staying as a guest at the Inn with his baseball coach, Jay McKee, and Mr. McKee's son Patrick. Tremayne and Mr. McKee's sons had become friends through playing sports together. Mr. McKee, Tremayne, and Patrick were attending the State Soccer Championship Tournament in Vicksburg, headquartered at the Inn, in which Patrick was participating.

Holiday Inn has a rule requiring that its swimming pool water be kept clear. Mr. Pitzer testified that he had noticed on the Friday before Tremayne's death that the water in the Inn's indoor swimming pool was cloudy due to the large number of children from the soccer tournament swimming in the pool. He had the water treated, but he knew that the water wouldn't clear up in a few hours or overnight. The Inn had a state of the art filtering system and pump which operated continuously. Edmond Gibbs was in charge of maintaining the pool and tested the water regularly to make sure that the pH, total alkalinity, calcium hardeners, and EEL reading (copper and ion levels) were all balanced. He also cleaned the pool regularly with a robot and cleaned the filter as needed. Mr. Gibbs testified that on the day that Tremayne drowned, the pool water was chemically balanced. A pool can be chemically balanced and still be cloudy, but adding chemicals to balanced water can cause skin and eye burning. The only way to clear up chemically balanced, cloudy water is to let the pool filtration system do its job. It also is ineffective to add chemicals to pool water in anticipation of a crowd, because adding chemicals when they're not needed can cause the water to become imbalanced and create cloudiness. While the Inn had the authority to close the pool because of the cloudy water on the weekend of the soccer tournament Patrick's team had won enough matches to continue playing on Sunday, so Mr. McKee decided that they should spend the night in Vicksburg. He took Tremayne back to Clinton to get overnight necessities and ask for his mother's permission to return to Vicksburg for the night. On the way back to Vicksburg, Mr. McKee stopped to buy grapes, cookies, chips and sodas. He testified that he was amazed at how many grapes Tremayne ate and was unsure how many sodas Tremayne drank.

Mr. Pitzer decided to leave it open, because he did not consider the cloudiness to be a dangerous condition. Linda Marbury testified that she and other guests noticed that the pool water was cloudy on the day that Tremayne drowned, but she had no problem with her children swimming in the cloudy water. Mr. McKee testified that he did not notice the cloudiness while he was at the pool.

Mr. McKee testified that he asked Tremayne if he could swim and that Tremayne said he could. Ms. Steele testified that Mr. McKee was aware that Tremayne wasn't supposed to swim in deep water and that Tremayne knew not to go in the deep end of the pool. She also testified that she looked to Mr. McKee to be responsible for Tremayne and to act as Tremayne's lifeguard at the hotel swimming pool. Mr. McKee himself agreed that he was supposed to be Tremayne's lifeguard, and "didn't do a very good job apparently, unsuccessful."

When Mr. McKee and Tremayne returned to the Inn from Clinton, the kids went swimming in the indoor pool. There were signs posted at the swimming pool stating that no lifeguard was on duty and to swim at your own risk. McKee and the other parents sat around the pool watching their children, visiting, and drinking beer. There were about forty to fifty people around the pool area. Tremayne was the only black child in the pool, so he was easy to spot. However, at some point, Mr. McKee looked up and realized that Tremayne and Patrick were gone. The last time that he had seen Tremayne, he was playing "Fish Out of Water" in the shallow end of the pool, and Mr. McKee testified that he had not seen Tremayne in the deep end during the two hours that they stayed at the pool. "Fish Out of Water" is a game in which a player cannot be "tagged out" as long as he stays under water.

Mr. McKee testified that he checked the pool and didn't see either child, so he went back to their hotel room and found Patrick running in the halls. He took Patrick back to the room, then went to the game room looking for Tremayne. Ms. Steele testified that McKee told her that he was gone for thirty minutes while he put Patrick to bed. When he didn't find Tremayne in the game room, Mr. McKee went back to the pool, and a few minutes later, some kids found Tremayne's body at the bottom of the pool. Amy Burrow administered CPR to Tremayne, but was unsuccessful. She testified that her efforts were hampered by the large amount of gastric contents that blocked Tremayne's airway.

Dr. Frank McPherson testified that Tremayne's autopsy report listed the probable cause of death as drowning. He asserted that playing "Fish Out of Water" could cause a child to pass out and breathe reflexively, taking water into the lungs. It could also cause a child to hypoventilate and breathe in water. Dr. McPherson also stated that in such a condition, the child could vomit, then breathe in the vomit, resulting in gastric contents in the lungs. He later clarified that it only takes between four and six minutes for a person to die from drowning.

Upon returning to the Inn from the hospital where Tremayne was taken, Mr. Pitzer and Mr. Goodwin, the maintenance chief, tested the water. The tests revealed that all chemical readings were still normal. However, Mr. Pitzer decided to close the pool out of respect for Tremayne and as a health precaution because of the vomit around the pool. Mr. Goodwin also treated the pool in case vomit or other unhealthy substances had gotten into the water. While he was adding chemicals to the pool, Mr. McKee and some other parents returned from the hospital. Mr. McKee testified that this was the first time that he noticed a cigar-shaped cloud in the pool, because the lights were turned on in the pool area and accentuated the cloud. Mr. McKee also testified that someone threw At trial, Ms. Steele's attorney alleged in closing argument that the Inn breached its duty of care toward Tremayne by failing to close the pool or warn of the dangerous condition caused by the cloudy water. He asserted that the cloudy water prevented people around the pool from seeing Tremayne while he was under water, and therefore prevented them from realizing that Tremayne was in trouble and rescuing him. The Inn's attorney argued that because it only takes between four and six minutes for a person to die from drowning that it was pure speculation to claim that resuscitation efforts would have been more successful had it not been for the cloudy water. The Inn also based its defense on the theory that Mr. McKee was solely at fault for Tremayne's drowning, because he failed to properly supervise Tremayne. The jury returned a verdict in favor of the Inn and Mr. Pitzer, and Ms. Steele appeals to this Court.

a penny into the pool, and they couldn't see the penny go to the bottom. However, he admitted that chemicals were already being added to the pool at this point, so the cigar-shaped cloud could have been caused by the added chemicals.

Standard of Review

SB11[1-3] This Court's standards of review regarding a denial of a judgment notwithstanding the verdict and a peremptory instruction are the same. Our standards of review for a denial of a judgment notwithstanding the verdict and a directed verdict are also identical. Under this standard, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have...