Opinion
Wood, Ris & Hames, P.C., Eugene S. Hames, Denver, for defendant-appellee Westmoor Beach and Blade Club, Inc.
Fischer, Wilmarth & Hasler, Timothy W. Hasler, G. William Beardslee, Fort Collins, for plaintiff-appellant.
Robert W. Hansen, Denver, for defendant-appellee Recreation Equipment Corp.
RULAND, Judge.
Plaintiff brought suit against co-defendants Westmoor Beach and Blade Club, Inc., (Westmoor) and Recreation Equipment Corporation (Recreation Equipment) to recover damages for injuries sustained while descending from a slide into Westmoor's swimming pool. At the conclusion of plaintiff's case, the trial court granted a directed verdict in favor of Recreation Equipment. The claims against Westmoor were submitted to the jury which found for Westmoor. Plaintiff appeals, assigning as error various rulings of the trial court.
The record discloses that in May of 1967, Westmoor directed its manager to explore the possibility of erecting a slide at its swimming pool. After contacting several others who had some experience with swimming pools and examining a number of recreational catalogs, the manager ordered a slide from Recreation Equipment.
The slide arrived accompanied by instructions for assembling, but without guidance as to proper placement. It then became necessary to determine an appropriate location for the slide. Westmoor's pool is circular in shape and contains an island in the middle. The water is deepest near the island. Having determined that the lip of the slide would be under water if the slide were erected on the island, the employees decided to place the slide on the perimeter of the pool positioned so that the bottom of the slide was one to one and one-half feet above the water, at a point where the water depth was approximately four feet. The water depth at the point where a swimmer entered the water depended upon the distance that swimmer traveled after exiting the slide since the water depth increased from the bottom of the slide towards the island.
Employees assembled and tested the slide before allowing pool patrons to use it. Employees, weighing up to 180 pounds, went down the slide from 200 to 250 times in various positions. During testing none of the employees hit the bottom of the pool. Pursuant to testing, rules were apparently posted on a bulletin board at the clubhouse which limited use of the slide to 'swimmers' only, sitting feet first or lying face down with hands and arms extended toward the pool. In addition, except during children's rest periods, a lifeguard was on duty to properly instruct patrons in the use of the slide.
After the slide was opened, it was used continuously for 16 days without serious accident. Then plaintiff, a two-year club member, and his family visited the pool. After swimming a short time, plaintiff (who weighed approximately 210 pounds) climbed the tower, received instruction from the lifeguard in the use of the slide, and descended without incident in the face down-arms extended position. During a period when a lifeguard was not on duty, plaintiff again decided to descend the slide. It is unclear whether patrons were properly notified not to use the slide during the lifeguard's absence. Plaintiff proceeded down the slide in the same position he had previously used. In this instance plaintiff's head struck the cement bottom of the pool, and, as a result, he suffered severe injuries.
I
Expert Testimony
During plaintiff's case in chief, Dr. Arthur Gabrielsen, was called as an expert witness. Defendants conceded Dr. Gabrielsen's qualifications as an expert in swimming, diving, and erection of swimming pool slides, but did object to allowing him to testify before the jury. The grounds for the objection were that although the witness began recording personal observations as to the proper placement of slides for safe exit of swimmers prior to the accident, actual test data obtained from use of photographic equipment supporting the witness' opinion was not obtained until approximately five years after the accident. Recreation Equipment objected on the additional ground that counsel were not notified that Dr. Gabrielsen would be called to testify as an expert until five days prior to trial. Hence, counsel asserted that there was inadequate time available to prepare any rebuttal testimony.
As an offer of proof, the trial court directed plaintiff to present testimony from Dr. Gabrielsen in camera. Following the offer of proof, the trial court ruled that the witness could not testify as to conclusions concerning construction, placement, and use of slides in swimming pools because the test data on which the witness relied for his conclusions was not available to the swimming pool industry at the time of plaintiff's accident. On the same basis, the trial court also prohibited the witness from testifying as an expert in the field of construction, placement, and use of swimming pool slides generally. However, the trial court allowed the witness to testify as an expert swimmer and diver for the purpose of giving an opinion as to the depth of water necessary at the end of Westmoor's slide for safe exit of swimmers. On this basis, the witness testified from photographs and dimensions of the slide that a minimum of nine feet of water depth was required immediately below the slide.
Plaintiff contends that the trial court's ruling which limited the expert's testimony was error. Plaintiff contends that the fact that Dr. Gabrielsen accumulatd test data after the plaintiff's accident goes to the weight of the evidence and not its admissibility.
We agree with plaintiff that the test data and expert opinion could not properly be excluded solely on the grounds that it was obtaind five years after plaintiff's accident, See Kotiadis v. Gristede Bros., Inc., 20 A.D.2d 689, 246 N.Y.S.2d 662; Crown Cork & Seal Co. v. Morton, 6 Cir.,417 F.2d 921. However, Dr. Gabrielsen was permitted as an expert swimmer and diver to give essentially the same testimony and to express the same opinion before the jury that he presented to the court in the offer of proof. Hence, the court's ruling was not prejudicial error as to plaintiff's claim against Westmoor.
Neither in the offer of proof nor in the testimony before the jury was there any evidence offered by Dr. Gabrielsen which would support the specific allegations of plaintiff's claim of negligent design against Recreation Equipment. Rather, the evidence offered related primarily to the minimum depth of water required under the type of slide involved in this case and the instructions to be given swimmers using this type of slide. Hence, Dr. Gabrielsen's testimony was not material to the claim against Recreation Equipment.
II
Assumption of the Risk
Plaintiff contends that there was insufficient evidence before the jury to justify the giving of an instruction regarding assumption of risk. We disagree.
A swimming pool operator is not an insurer of his guest's safety, City of Aurora v. Weeks, 152 Colo. 509, 384 P.2d 90, and a participant in a sports activity such as swimming is deemed to accept the dangers involved insofar as such are obvious. See Hook v. Lakeside Park Co., 142 Colo. 277, 351 P.2d 261. It is conceded in this case that plaintiff descended the slide at least once prior to his accident and that he was aware of the depth of the water in the area of the slide. Therefore, whether the danger inherent in the use of the slide was obvious or concealed to plaintiff was a question of fact that was properly placed before the jury for resolution. See Atkins v. Bisigier, 16 Cal.App.3d 414, 94 Cal.Rptr. 49.
In the alternative, plaintiff argues that the instruction given on this issue was inadequate. We disagree. The form of the instruction given was taken from Colorado Jury Instructions 9:21, and this instruction has previously been approved by this court for use in negligence cases. See Lippincott v. Colwell, 29 Colo.App. 486, 486 P.2d 26.
III
Negligence Per Se
Plaintiff contends the trial court erred in refusing to instruct the jury that Westmoor was negligent as a matter of law in failing to comply with C.R.S.1963, 66--22--1 and 66--22--2, and the Building Code for the City of Fort Collins in conjunction with installation of the slide. We disagree.
C.R.S.1963, 66--22--1, defines a swimming area, and C.R.S.1963, 66--22--2, requires that prior to the modification of a swimming area, the owner must submit the plans for the work to be done to the State Department of Public Health for review and recommendation. The City of Fort Collins has apparently adopted the Uniform Building Code, and plaintiff contends that a building permit is required before Westmoor could install its slide.
Based upon the premise that the cited statutes and the Building Code were applicable, plaintiff offered and the trial court excluded testimony of an engineer for the State Department of Public Health that he would not have approved plans for installation of the slide as it was installed by Westmoor, and testimony of the building inspector that he would not have issued a building permit.
We first note that if the City of Fort Collins had in fact adopted regulations governing swimming pool areas and appurtenances, then the state statutes would not apply. See C.R.S.1963, 66--22--8. However, we are not cited to, and the record does not contain, any city ordinances which pertain to swimming pool areas and appurtenances, and thus we consider only the applicability of C.R.S.1963, 66--22--2.
Assuming, without deciding, (a) that the slide in question is an appurtenance to a swimming pool covered by the statutes in question, (b) that the erection of the slide constitutes modification of a swimming area, and (c) that plaintiff was within a class of persons intended to be protected by this statute, See Hamilton v. Gravinsky, 28 Colo.App. 408, 474 P.2d 185, for the doctrine of negligence per se to be applicable, it is necessary to demonstrate that violation of C.R.S.1963, 66--22--2, was the proximate cause of plaintiff's injuries. Kelley v. Holmes, 28 Colo.App. 79, 470 P.2d 590.
This statutory provision requires only that plans be submitted for review and recommendation. It is conceded that, as of the date of plaintiff's injury, neither the State Health Department nor the City of Fort Collins had adopted any type of regulations governing installation of swimming pool slides. Conversely, the legislature had established definite safety standards covering various other aspects of swimming areas. See C.R.S.1963, 66--22-4.
Civil liability for violation of a statute is based upon the premise that the legislature has enacted a standard of conduct which determines what a party may or may not do under given circumstances. See Restatement (Second) of Torts s 285. In our view, a requirement that plans be submitted for review and recommendation without any statutory or administrative regulations setting forth criteria by which the plans may be deemed acceptable or unacceptable is not a sufficient standard of conduct by which the existence of negligence may reasonably be determined. Hence, A fortiori, we conclude that failure to comply with C.R.S.1963, 6--22--2, cannot be said to constitute the proximate cause of plaintiff's injuries, and the trial court did not err in refusing to give plaintiff's requested instruction.
IV
Directed Verdict for Recreation Equipment
Plaintiff asserts that the directed verdict entered by the trial court in favor of Recreation Equipment was error. We disagree.
Plaintiff's amended complaint alleged that Recreation Equipment was negligent in designing, constructing, installing, and erecting the slide as well as in failing to install the slide in a place were it could be used safely.
No evidence was offered to show negligent design or construction of the slide, and it is undisputed that the slide was erected and installed at poolside by Westmoor.
Plaintiff argues here that Recreation Equipment's negligence consisted of failure to provide instructions as to proper site location, directions that use of the slide be supervised, and directions as to safe method of descent. These issues are not raised by plaintiff's amended complaint. Therefore, the trial court correctly directed a verdict for Recreation Equipment. See Lininger v. Buchanan, 131 Colo. 5, 279 P.2d 671.
The judgment is affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.