Woolsey v. Holiday Health Clubs and Fitness Centers, Inc., 90CA1356

• Decision Date: 24 October 1991
• Docket Number: No. 90CA1356,90CA1356
• Citation: 820 P.2d 1201
• Parties: Edith WOOLSEY, Plaintiff-Appellant, v. HOLIDAY HEALTH CLUBS AND FITNESS CENTERS, INC. Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 1201

820 P.2d 1201

Edith WOOLSEY, Plaintiff-Appellant, v. HOLIDAY HEALTH CLUBS AND FITNESS CENTERS, INC. Defendant-Appellee.

No. 90CA1356.

Colorado Court of Appeals Div. III.

Oct. 24, 1991.

Epstein & Lawrence, P.C., Scott W. Lawrence, Denver, for plaintiff-appellant.

Hall & Evans, Alan Epstein, Denver, for defendant-appellee.

Opinion by Judge DUBOFSKY.

In this wrongful death action, plaintiff, Edith Woolsey, appeals from a jury verdict in favor of defendant, Holiday Health Clubs and Fitness Centers, Inc. By special verdicts, the jury found that defendant was not negligent and did not cause the plaintiff's losses. We affirm.

On March 12, 1985, plaintiff's husband, a longtime member of defendant's health club, was found partially submerged and unconscious in one of the club's whirlpools. Because of oxygen deprivation, Mr. Woolsey suffered a significant brain injury, and he died approximately a year later from complications arising from the initial injury.

Plaintiff thereafter brought this wrongful death negligence action against defendant. She alleged that defendant was negligent in failing to supervise the whirlpool area and in failing to warn of the risks and hazards associated with the use of a whirlpool.

I.

Plaintiff contends that the trial court erred in refusing to instruct the jury that defendant owed a legal duty to decedent to supervise the whirlpool area and to warn of the hazards of whirlpool use. Plaintiff claims that, because the jury was not so instructed, the jury was free to determine that no duty was owed to the plaintiff. Thus, she argues, by failing properly to instruct the jury on the duty issue, the court erroneously permitted the jury to determine what was a question of law for the court. We perceive no error.

In a negligence action, it is the responsibility of the court, not the jury, to determine the existence and scope of a duty owed to an injured party. See University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987); White v. Pines Enterprises, 728 P.2d 759 (Colo.App.1986).

The factors to be considered by the court in determining if a duty exists include the foreseeability and likelihood of harm, the magnitude of the burden placed on defendant to guard against injury, the consequences of placing that burden on defendant, and the social utility of defendant's conduct. See Lyons v. Nasby, 770 P.2d 1250 (Colo.1989); University of Denver v. Whitlock, supra.

Here, the court refused plaintiff's instruction that defendant had a legal duty to supervise the whirlpool area and to warn about risks and hazards associated with the use of a whirlpool. We conclude that it was not error for the trial court to refuse plaintiff's tendered instruction. Furthermore, we determine that, under the circumstances of this case, it was not error for the trial court to fail to modify defendant's instruction and give a more generalized one which merely indicated defendant had a legal duty to act reasonably toward decedent.

Here, the court submitted several different jury instructions which correctly stated the law and adequately covered the duty concept.

One instruction, based on CJI-Civ.3d 9:1 (1988), indicated that in order for the plaintiff to recover from defendant, the jury would have to find that the defendant was negligent and that its negligence caused the plaintiff's damages. That instruction further stated that if the jury found these propositions were proved by the evidence, i.e., negligence, causation, damages, then the verdict must be for the plaintiff unless decedent was contributorily negligent, in which case the verdict must be apportioned in relationship to the negligence of the defendant and decedent.

Another instruction, based on CJI-Civ.3d 9:4 (1988), defined negligence as meaning a failure to do an act which a reasonably careful person would do or the doing of an act which a reasonably careful person would not do. Reasonable care was then defined as that degree of care which a reasonably careful person would use under the same or similar circumstances. See CJI-Civ.3d 9:6 (1988).

Another instruction indicated that the practices of trade industries did not establish a standard of care for a health club, but rather the jury should determine what a reasonable health club would have done under similar circumstances.

These instructions, when read together, tell the jury that, if it determined defendant acted negligently and this negligence caused the decedent's death, then it must appropriately compensate the plaintiff. These instructions, in effect, inform the jury that defendant had a legal duty to act reasonably toward the decedent. The instruction directing the jury that it must return a verdict for plaintiff if negligence, causation, and damages are proven is equivalent in effect to an instruction that there exists a legal duty of reasonable care by defendant to decedent and that, if defendant's negligence caused damages to the plaintiff, then the jury must compensate the plaintiff. Accordingly, the jury...