Smith v. Ferrel

852 F.2d 1074, 1988 WL 78604
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 1, 1988
DocketNo. 87-2136
StatusPublished
Cited by16 cases

This text of 852 F.2d 1074 (Smith v. Ferrel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Ferrel, 852 F.2d 1074, 1988 WL 78604 (8th Cir. 1988).

Opinion

BENSON, Senior District Judge.

This is an appeal from a judgment of dismissal entered on a jury verdict and from post trial motions for judgment notwithstanding the verdict and for a new trial in a 28 U.S.C. § 1332 diversity action. Marcellin L. Smith, a citizen of the state of Illinois, individually and as father and next friend of Eric Smith, a minor, brought suit against Floyd Jay Ferrel and Shirley M. Ferrel, citizens of the state of Iowa, doing business as Lakeside Manor Park, a/k/a Harrah’s Lake, for damages arising out of injuries incurred by Eric in a diving accident at Harrah’s Lake.

I. BACKGROUND

The Ferrels owned and operated Har-rah’s Lake, a recreational facility in Iowa which was open to the public on an admission fee basis. The lake was man-made and covered an area of approximately one acre. It was utilized by the public for sunbathing, swimming, diving, and miscellaneous water games. On June 12, 1984, Eric Smith, 16 years of age, and two of his friends drove to the lake, paid the admission fee, parked their car, and changed into their bathing suits in preparation for an afternoon of recreation. After a brief interval of visiting, Eric followed two others in a dive from the eastern bank into a shallow area of the lake. Eric struck the bottom and suffered a severe injury to his spine, which was described as a broken neck, C3 and C4.

Appellants brought suit for damages. The ease was grounded on alleged negligence in a failure to properly supervise the lake and to warn guests that diving in the lake where Eric Smith dived was dangerous due to shallow water. The case was submitted to the jury on special interrogatories, the first of which was, “Were Floyd Jay Ferrel or Shirley M. Ferrel, doing business as Lakeside Manor Park negligent?” The jury’s answer to the interrogatory was “no.” The remaining interrogatories which related to proximate cause, comparative negligence and damages were not answered, having been mooted by the jury’s answer to the first one.

Judgment of dismissal was entered on the verdict, and thereafter appellants filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. F.R.Civ.P. 50(b) and 59. The motions were denied.1 This appeal followed. We affirm.

II. ISSUES

Appellants statement of issues may be summarized as:

1. whether the jury’s verdict is supported by substantial evidence, and
2. whether the district court’s jury instruction No. 18 constitutes reversible error.

A. Sufficiency of the Evidence

The record discloses that a motion for directed verdict was not made at the close of all the evidence and appellant therefore cannot question the sufficiency of the evidence either before the district court through a motion for judgment notwithstanding the verdict or on appeal. F.R.Civ.P. 50(b); Myers v. Norfolk Live [1076]*1076stock Market, Inc., 696 F.2d 555, 558-59 (8th Cir.1982). A liberal construction of the pleadings indicates the issue of the sufficiency of the evidence was raised on appellant’s motion for a new trial and may be considered in this court's determination as to whether the district court abused its discretion in denying the new trial motion. Harris v. Zurich Insurance Co., 527 F.2d 528, 529-30 (8th Cir.1975). We find no abuse of discretion in the denial of the motion for a new trial.

In Cerro Gordo Charity v. Fireman’s Fund Am. Life Ins., 819 F.2d 1471 (8th Cir.1987), this court set out the standards of review of a jury’s finding:

On appeal, we will overturn a jury verdict only where the evidence is susceptible to no reasonable inferences sustaining it.... Evidence is to be considered in the light most favorable to the verdict. The prevailing party is to be given the benefit of all reasonable inferences that can be drawn from the evidence, and factual disputes are to be decided in favor of the verdict.

Id. at 1485 (citations omitted).

The Iowa substantive tort law applicable to duty owed by a proprietor of a place of amusement to its customers has been stated as follows:

The law is well established that a proprietor of a place of public amusement or entertainment is held to a stricter account for injuries to patrons than the owner of private premises generally. He is not an insurer of the safety of patrons but owes to them only what, under the particular circumstances, is ordinary and reasonable care. He must guard them not only against dangers of which he had actual notice but also against those he should reasonably anticipate. Failure to carry out such duty is negligence.

Parsons v. Nat. Dairy Cattle Congress, 277 N.W.2d 620, 623-24 (Iowa 1979) (citation omitted). The Iowa court also stated that, “In almost all cases this question of due care, under the circumstances, is a question for the jury.” Id. at 624 (citation omitted).

The evidence in this case is clearly sufficient to support the verdict. Considered in the light most favorable to the prevailing party, giving the prevailing party the benefit of all reasonable inferences that could be drawn from the evidence, and assuming that all conflicts in the evidence were resolved by the jury in favor of the defendants, the jury could have found the evidence to be as follows:

On the date and time of the accident there were 50 to 75 persons in the swimming area. The eastern bank was the busiest area of the lakeshore and was a gathering place for teenagers playing games, visiting, and swimming. Diving towers were located near the middle of the lake where the water was deep. Swimmers were going in and out of the water from the shore.

The grassy area of the bank extended in a gradual slope almost to the water’s edge. The water at the edge of the lake was only six to twelve inches deep and swimmers would have to walk into the water before beginning to swim. The depth of the water ten feet out from the bank ranged from thirteen inches to nineteen inches. The shallow depth of the water was easily observed by watching the activities of the bathers. Swimmers who ran from the eastern bank to dive into the water would go into the water until it was knee deep and then do a flat dive. Eric Smith was a very good, experienced swimmer and diver. At the time he went into the lake he was preceded by two other boys, each of whom ran into the water and did a flat dive without serious consequences. There was an inflated combine-tractor type inner tube large enough to float three people lying on the grass by the edge of the water at the point where Eric made his dive. Eric, following the other two, raced down the slope at nearly full speed. As he approached the tube, he dived up into the air over the inner tube and, with his arms at his side, did a head first entry into the water close to the shore. The injury resulted.

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Smith v. Ferrel
852 F.2d 1074 (Eighth Circuit, 1988)

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Bluebook (online)
852 F.2d 1074, 1988 WL 78604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-ferrel-ca8-1988.