Schulte v. Graff

481 S.W.2d 596, 1972 Mo. App. LEXIS 838
CourtMissouri Court of Appeals
DecidedApril 25, 1972
DocketNos. 34058, 34059
StatusPublished
Cited by5 cases

This text of 481 S.W.2d 596 (Schulte v. Graff) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schulte v. Graff, 481 S.W.2d 596, 1972 Mo. App. LEXIS 838 (Mo. Ct. App. 1972).

Opinion

DOWD, Judge.

This is an action to recover damages for the wrongful death by drowning of plaintiffs’ seven year old daughter, Barbara. At the trial below directed verdicts were granted by the trial judge in favor of the defendants Graff, Wietecter, and Bimes. The jury returned a verdict in favor of the plaintiffs against the defendants, Mary Becker and Jacqueline Certa in the amount of $5,000. These two defendants appeal the denial of their motions for a directed verdict and also claim error in the giving of two instructions to the jury. The plaintiffs appeal from the directed verdict in favor of the other three defendants.

The facts surrounding the death of Barbara Schulte, adduced from the testimony, are as follows. The deceased was a participant in a summer recreation program run by the St. Louis County Department of Parks and Recreation. The program included swimming lessons. These lessons were conducted by employees of the Department of Parks and Recreation at the North Shore Swimming Pool, which was owned by the defendant Graff. It was a private, membership pool. The County had worked out an arrangement with Graff [598]*598whereby each of the children would pay twenty-five cents entrance charge. Graff stated that “there was no profit in it,” and that he considered it a community service. The lessons were conducted twice a week for eight weeks for the Larimore Park Group. Barbara was a member of this group.

The North Shore Pool is about fifty feet wide by fifty feet long at the deep end. There is a rope separating the deep end from the shallow water. There is also a rope around the perimeter of the pool about five or six feet from the edge. The depth of the water ranges from about two feet at the shallow end sloping to eight to ten feet at the deep end.

For instruction purposes, the children were divided into groups or stations according to their swimming ability. Barbara was in station 1, for non-swimmers. Each station was composed of about five children and an instructor. On the last day of the program, August 10, 1967 the children were allowed to play water games, such as diving for pennies, instead of the usual lessons. For the purpose of playing these games, stations 1-3 were intermingled.

On the day of the tragedy, there were some 15 or 16 lifeguards and instructors stationed in and alongside the pool. The lifeguards and instructors were employed by St. Louis County and were certified by the American Red Cross as to their proficiency in life saving and swimming instruction. These certifications were checked by the County Parks Department. There were two lifeguard stands on either side of the deep water area, but these were customarily not used except during periods of free swimming. At some time during the game period, Barbara and her sister Julie got out of the pool and Julie went into the restroom. Julie left Barbara standing near the deep-water end of the pool, and told her to stay there until she returned and not to get in the pool. She returned about five minutes later, and saw Barbara being given mouth to mouth resuscitation.

Thus, it was some time during this five minute period that Barbara was discovered at the bottom of the pool in eight to ten feet of water by two boys who were diving from the two diving boards. After ascertaining that there was, in fact, a little girl lying at the bottom of the pool, the boys called to the nearest lifeguard, Norm Thrall, who was the son of the defendant Becker. There was testimony that it took about a minute of conversation to attract Thrall’s attention, and then convince him they were telling the truth. Thrall climbed into the lifeguard stand to take a look, since the glare from the sun prevented him from seeing all the way to the bottom from alongside the pool. He then dived in and brought Barbara up. There was testimony that approximately two or three minutes elapsed between the time Barbara was first spotted and the time she was pulled out of the pool. Mouth to mouth resuscitation was immediately begun. After about ten minutes the child’s coloring returned and she started to breathe. However, the coloring regressed before the ambulance arrived with an inhalator, approximately twenty minutes later, and Barbara subsequently was pronounced dead on arrival at City Hospital. An inhalator had been continuously used on the child all the way to the hospital. There was testimony by the plaintiff’s family doctor that an inhalator was more efficient than mouth to mouth resuscitation, and had this equipment been available immediately, it was possible that Barbara would have lived.

At the trial, the plaintiffs called each defendant as a witness and at the close of plaintiffs’ case, the motions herein appealed from were made. We will consider each defendant’s position in turn.

The defendant Wietecter was the Assistant Recreation Supervisor for the St. Louis County Department of Parks and Recreation. At the time he took up this position, June 1, 1967, the summer program [599]*599had already been set up by the Recreation Supervisor Phillips. Wietecter’s job was to exercise general supervision of the activities planned, and he had inspected the pool with the defendant Becker before the program started. He testified that he had no training in swimming procedures and was not qualified to run a swimming program, but only to administer a general recreation program. He exercised no control over the pool activities and had not hired any of the pool personnel, although they were provided by his department. He testified that the pool furnished all the safety equipment and there was no written departmental policy regarding the type of equipment required. Furthermore, his position would not enable him to set or change such a policy, even had there been one.

The defendant Bimes was the director of Larimore Playground and was employed by the County. He and his staff were not trained in water safety, but one or two of them were usually in the pool assisting the instructors. None of his staff served as lifeguards, but did assist generally in the area around the pool. He had never inquired about safety equipment, but had observed so-called shepherd’s hooks and ring buoys. He himself usually watched the pool activities, but always wore street clothes. Since Wietecter and Bimes are in similar positions, the motions of these two defendants will be considered together.

In general, a verdict may be directed for a defendant only when the facts in evidence and the legitimate inferences drawn therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Fain v. Margo Equipment Co., Mo.App., 366 S.W.2d 14; Trower v. Missouri-Kansas-Texas R. Co., 347 Mo. 900, 149 S.W.2d 792. We must therefore, view the evidence in the light most favorable to the plaintiffs. Hastings v. Coppage, Mo., 411 S.W.2d 232, 235.

The testimony of Wietecter and Bimes was part of the plaintiffs’ case. The evidence does not show that any authority or duty existed on the part of these defendants to guard the decedent while she was participating in the swimming program. On the contrary, the record clearly shows that neither defendant was qualified to assume such authority or duty, nor did the positions held by them impute any such authority or duty. There is no evidence that they did not exercise reasonable supervisory care in their respective capacities.

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Bluebook (online)
481 S.W.2d 596, 1972 Mo. App. LEXIS 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schulte-v-graff-moctapp-1972.