Williams v. City of Baton Rouge, 7035

• Decision Date: 29 May 1967
• Docket Number: No. 7035,7035
• Citation: 200 So.2d 420
• Parties: James B. WILLIAMS et al., Plaintiff-Appellees, v. CITY OF BATON ROUGE, Parish of East Baton Rouge Recreation & Park Commission et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 420

200 So.2d 420

James B. WILLIAMS et al., Plaintiff-Appellees, v. CITY OF BATON ROUGE, Parish of East Baton Rouge Recreation &amp Park Commission et al., Defendants-Appellants.

No. 7035.

Court of Appeal of Louisiana, First Circuit.

May 29, 1967.

Rehearing Denied June 30, 1967.

Sargent Pitcher, Jr., Dist. Atty., Ralph L . Roy, Asst. Dist. Atty., Ralph Brewer, Baton Rouge, for appellants.

Jimmie R. Major, Baton Rouge, for appellees.

Before LOTTINGER, REID and SARTAIN, JJ.

SARTAIN, Judge.

Plaintiffs' minor son drowned while a patron of a swimming pool operated by the East Baton Rouge Recreation and Park Commission. Suit against said Commission was authorized by Act No. 22 of 1964 Regular Session of the Louisiana Legislature. Judgment in the trial court was rendered in solido against Charles A . Green, father of the minor lifeguard, Jaural Leopold Green, and against the East Baton Rouge Recreation and Park Commission in favor of deceased's father, James B. Williams, in the sum of Two Thousand Five Hundred and No/100 Dollars and in favor of deceased's mother in the sum of Two Thousand, Five Hundred and No/100 Dollars. From an adverse judgment on the merits, defendants appealed. The plaintiffs also appeal from the awards of damages by the trial court on the ground that such awards are manifestly inadequate.

On June 13, 1963, the deceased, Charles Edward Williams, age 15, and his friend, Michael Yates, age 14, were swimming in the Brooks Park swimming pool. They arrived at the pool at approximately 1:10 p.m. and after spending approximately 45 minutes in the shallow end they decided to enter the deep part of the pool and shortly thereafter began jumping into the water, touching bottom, and pushing themselves upward to the surface. These activities took place near a ladder. The lifeguard, Jaural Leopold Green, was at his station on an elevated stand across the pool. Young Williams could not swim and his companion was a very poor swimmer. After jumping into the water and emerging five or six times, Yates observed that Williams did not surface after the last jump. He saw Williams walking on the Bottom of the pool towards shallow water and became concerned about his friend's safety. He dove back into the water and then observed Williams lying on the bottom of the pool. He got back out of the pool and attempted in vain to solicit the aid of several people on the side of the pool. They apparently thought he was jesting. Yates then went to the lifeguard, Jaural Leopold Green, who likewise did not take young Yates seriously and remained at his station. He then went to the pool office to solicit the aid and assistance of the ticket taker. This person was on the phone and did not respond to Yates' plea for help. He then returned to the pool and dove into the water again to be sure that his companion was on the bottom. He returned to the side of the pool, again requested assistance in vain from those nearby, and for the second time told the lifeguard, Green, that his friend was drowning and receiving no help, returned to the bathhouse. His second conversation with the ticket taker was overheard by the head lifeguard, Elvin Dalcourt, who at the time was supervising a wall cleaning project in the bathhouse. Dalcourt immediately ran from the bathhouse to the pool, dove in, and pulled the body of young Williams to the surface, placed him on the side of the pool, and commenced to administer artificial respiration.

The Baton Rouge Fire Department was notified and in approximately five minutes a unit arrived. All efforts to revive young Williams proved unsuccessful.

Dr. Russell Mark Coco, Assistant Coroner for the Parish of East Baton Rouge, arrived some 15 to 20 minutes after Williams was removed from the pool. It was his opinion that young Williams died from 'accidental drowning'.

A considerable portion of the testimony is concerned with the condition of the water in the pool, the availability of safety apparatus, etc. To us these issues are insignificant in comparison with the conduct of Green, an agent and employee of defendant, Park Commission. For in our opinion the findings of the district judge with respect to the negligence of Green is imminently correct and amply supported by the record. In essence the trial judge did not consider the action of young Williams, a non-swimmer, going into deep water and engaging in the type of activity as he did as constituting negligence which contributed to and proximately caused his fatality. In his written reasons for judgment the trial judge stated:

'Applying the facts to the applicable standard, the court is left with no alternative except to find that the conduct of Jaural Leopold Green, in failing to heed the cries for help of Yates, and in failing to lend the assistance for which he was employed, was negligence in unequivocal terms. It was inexcusable and unjustifiable for Green's not having acted in the performance of his duty; it is inconceivable why he failed to observe the plight of young Williams from his vantage point in the guard tower above the water. It is also more than evident that Green's reprehensible conduct was the proximate cause of the boy's death.'

Notwithstanding the fact that Charles A. Green, father of the minor-lifeguard, Jaural Leopold Green, was sued as a codefendant for the alleged negligence of the minor, neither appeared to testify or offer a defense to the allegations of negligence on the part of the latter. The sole witness testifying as to the occurrence of the events up to the entry of Elvin Dalcourt in the chain thereof as set forth above was Michael Yates, who at the time of the trial was 17 years of age. The trial judge stated that this witness 'appeared at the trial and told a very convincing story. His testimony was intelligent, exceptionally credible and not contradicted by defendants in any substantial way.' A reading of this lad's testimony fully convinces us that the trial judge's comments are most appropriate.

Defendants' primary defense is the plea of contributory negligence on the part of young Williams. They cite as authority numerous cases which clearly express the jurisprudence of this state with respect to the duty owed by a swimming pool proprietor in Louisiana. This duty is that of ordinary reasonable care for the safety of patrons, having regard for the methods and contrivances necessarily used in conducting such a place and for the conduct of invitees using the premises in the manner they are designed and intended to be used. Benoit v. Hartford Accident & Indemnity Co., La.App., 169 So.2d 925; Walker v. Rose Hill Amusement Co., La.App., 167 So. 144; Rome v. London & Lancashire Indemnity Co. of America, La.App., 169 So. 132.

Defendants further cite McGuire v. Louisiana Baptist Encampment, Inc., La.App., 199 So. 192 for authority that a young boy 15 years of age with knowledge that he could not swim and who goes into deep water is guilty of contributory negligence precluding his parents from recovery for damages against the proprietor of a swimming pool for the youth's resultant drowning.

We have carefully examined the McGuire case and conclude that the facts presented in the instant matter are clearly distinguishable. Assuming that the act of a 15 year old going into deep water with knowledge that he cannot swim is negligence, such negligence here was not a contributing and proximate cause in the instant matter because there elapsed an interval of some 12 to 15 minutes from the first moment young Yates urged the assistance of lifeguard, Green, to the time that Dalcourt pulled Williams out of the water. The failure of Green, admittely a capable lifeguard, to respond to the pleas of Yates on two occasions is to us incomprehensible and of such consequences as to completely overshadow the considerations of negligence on the part of young Williams in going into deep water.

We fully recognize that under some circumstances lifeguards on duty may become provoked and exasperated by the conduct of children committed to their supervision who feign distress or play or fake drowning. However, it is difficult for us to realize that such conduct could cause a responsible and prudent person to become so immune to the possibility of danger as to completely ignore pleas for help under the guise that all such pleas originate in jest. The immediate reaction of Dalcourt and his instantaneous response to the situation clearly reflects what an ordinary prudent individual would do under the circumstances when charged with the same responsibility.

Counsel for defendant, Charles A. Green, father of the minor-lifeguard, Jaural Leopold Green, urges that the trial court erred in casting said defendant in judgment in solido with the Recreation and Park Commission and cites numerous authorities holding that a father is not liable for acts of a minor child wherein accidental injury is caused to and inflicted upon other children. We have carefully examined the authorities cited and are of the opinion that they are not apposite to or controlling of the situation here presented. Counsel for said defendant seems to be under the erroneous opinion that for a parent to be liable his child must have engaged in the use of a dangerous instrumentality to the knowledge or imputed knowledge of the parent. The liability of the defendant father herein is based on the authority of LSA-CC Article 2318 which reads as follows:

'The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.

The same responsibility attaches to the tutors of minors.'

Thus the two conditions which invoke the authority of this Article are (1) that the person inflicting the damage be an unemancipated minor, and (2) that said minor resides with his parent.

Thus a father is responsible for the...