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November 8, 1967

Alvin H. FRANKEL, Administrator of the Estate of Michael Acquesta, deceased,
WILLOW BROOK MARINA, INC. and Carole Kleinfelder

The opinion of the court was delivered by: LUONGO

 On July 30, 1963, Michael Acquesta, 8 1/2 years of age, drowned in a swimming pool operated by Willow Brook Marina, Inc. (Marina). Minutes before he was found unconscious on the bottom of the pool, Michael had been one of a group of four children receiving swimming instructions in a class conducted by Carole Kleinfelder (Carole), a lifeguard employed by Marina.

 This suit seeking damages under the Wrongful Death and the Survival Acts was instituted by minor decedent's administrator against Carole and Marina. The claim against Marina sought to hold it liable for Carole's conduct on principles of respondeat superior, and, in addition, charged it with independent acts of negligence. Marina cross-claimed against Carole seeking to be indemnified in the event it were to be held liable solely because of Carole's negligence.

 The claims and cross-claims presented several issues: Whether Carole was negligent; whether, in giving swimming instructions, Carole was Marina's agent or was an independent contractor; and whether Marina was guilty of independent acts of negligence. The issues were submitted to the jury by interrogatories. By its answers, the jury found that Carole was acting as Marina's agent; that she was not guilty of negligence which was a proximate cause of the accident; and that Marina was guilty of negligence, apart from Carole's conduct, which was a proximate cause of the accident. The jury assessed damages under the Wrongful Death Act in the amount of $1,308.50 (funeral expenses), and under the Survival Act in the amount of $4,691.50. On those answers, a verdict was entered in favor of plaintiff against defendant Marina, and verdicts in favor of defendant Carole were entered on plaintiff's complaint and on Marina's cross-claim.


 A fairly comprehensive recitation of the facts is necessary to an understanding of the motions and their disposition.

 In July 1963, Michael's father inquired of Mrs. Shaner, an officer of Marina, whether swimming instructions could be had at corporate defendant's pool. He was informed that the lifeguards gave swimming instructions; that the charge was $5 for 5 lessons plus $1 as an admission charge to the pool; that it was not necessary for anyone to accompany Michael to the pool for the lessons if he brought the money with him. Mrs. Shaner introduced Mr. Acquesta to Carole and told Carole that she would have Michael as a pupil in her class.

 The pool was open to the general membership from 11 a.m. to 9 p.m. daily. The two lifeguards, Carole and 17 year old Paul McMahon, were paid $1 an hour for the hours they worked while the pool was open, but they were expected to perform certain cleaning chores before the opening. When the lifeguards were hired they were told that they could supplement their pay by giving swimming lessons at the pool. The amount of the charge for the instructions was fixed by the lifeguards, but it was subject to Marina's approval. The lessons were to be given in the morning before the pool opened to the general membership.

 The pool was also used by the lifeguards in the morning pre-opening hours to teach and to supervise practice sessions of routines to be used in an aquatic show to be put on at the pool. Each morning Mrs. Shaner unlocked the gate in the fence which surrounded the pool to admit the lifeguards for the pre-opening activities which were conducted with her knowledge and approval.

 On July 29, 1963, Michael attended his first class. Because of his complete unfamiliarity with swimming, Carole classified him as a "beginner-beginner", one who should not be in or near the water unattended. Michael was frightened and nervous. On July 30, at the second lesson, Michael was still frightened and nervous and complained about not feeling well. Carole permitted him to get out of the water and sit on the apron of the pool. While the swimming class was being conducted at the shallow end of the pool, four other young people were in the pool, at the deep end, practicing for the aquatic show. When the swimming class session ended, Carole dismissed the four pupils. Two of them wanted to go to the deep end of the pool to practice diving. Carole swam to the deep end to oversee that activity. When she did, one pupil remained in the pool at the shallow end, and Michael was in the vicinity of the pool, out of the water but within the fence enclosure. In addition, the four young people who had been practicing for the aquatic show and who had been ordered out of the pool when Carole went to the deep end to watch over the two pupils diving, were in the vicinity of the pool. While all this was going on, the other lifeguard, Paul McMahon who was scheduled to go "on duty" when the pool opened at 11 a.m., was at pool side, reading. Michael's body was discovered at the bottom of the pool at approximately the 7 foot depth when Carole and the others were leaving the pool area preparatory to the pool opening to the general membership.

 Marina's Motion.

 Marina's motion for judgment n.o.v. is based on its contention that there is no evidence that it was negligent. Its alternative motion for new trial is on the ground that the clear weight of the evidence establishes that if any one was negligent, it was Carole, and the jury's finding absolving Carole of negligence deprived Marina of the right of indemnity from Carole.

 The n.o.v. motion need not detain us. The test was stated thus in Morris Brothers Lumber Co. v. Eakin, 262 ...

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