Appeals from Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 181 January Term, 1977.
Byron L. Milner, Philadelphia, for Our Lady, appellant (at No. 310) and appellee (at Nos. 311 and 476).
Jeffrey M. Stopford, Philadelphia, for Rivera, appellant, (at No. 476) and appellee (at Nos. 310 and 311).
Charles W. Craven, Philadelphia, for Phila. Theological Seminary, appellant (at No. 311) and appellee (at No. 310 and 476).
Spaeth, Wieand and Hoffman, JJ.
[ 326 Pa. Super. Page 515]
Frederick Rivera, age 12, drowned while swimming in an indoor pool owned by The Philadelphia Theological Seminary of St. Charles Borromeo, Inc. (the Seminary). He was one of fourteen altar boys from Our Lady of Lourdes Catholic Church (the Church) who had been invited by the Reverend Anthony Flynn, a priest, to participate in an evening swimming party. Father Flynn took the boys to the pool at the Seminary without requesting permission from the Seminary and without prior notice to the Seminary that he intended to use the pool for a swimming party. There was evidence of use by others on prior occasions, however, and Father Flynn was of the understanding that a priest could use the pool at any time and could bring groups of persons with him to use the pool. Moreover, Father Flynn had attended the Seminary and was familiar with the means by which entrance could be achieved even when the pool appeared to be closed. When the boys arrived at the pool at 7:50 p.m., on the evening of December 17, 1976, the main entrance to the pool had been closed and locked. Neither attendants nor lifeguards were present. Father Flynn gained entrance to the building which housed the pool by going through a labyrinth of halls. He then opened a fire door through which the boys entered. Father Flynn, an excellent swimmer and trained in water rescue, intended to provide supervision while the boys were in the water. During the course of the boys' activities, he left the pool area and entered the locker room to use the telephone to order
[ 326 Pa. Super. Page 516]
pizza for the boys. While he was absent, Rivera was found at the bottom of the pool at the deep end. When Father Flynn learned that a body was lying on the bottom of the pool, he dove into the water and retrieved the body. His efforts to revive Rivera, unfortunately, were unsuccessful. The decedent's mother and administratrix, Concepcion Rivera, commenced wrongful death and survival actions, which were tried before a jury. At trial, the evidence did not disclose the precise cause of the drowning. The trial court directed a verdict in favor of Father Flynn. A jury awarded damages to the plaintiff and apportioned negligence as follows: Rivera -- 5%; the Church -- 65%; and the Seminary -- 30%. Post trial motions were denied, and judgments were entered on the verdict. Cross appeals were filed. Ms. Rivera challenges the jury's finding that her deceased son had been negligent. The Seminary argues that it can be liable only if plaintiff proved it had been guilty of "malicious" conduct and that plaintiff's proof failed to show such conduct. Finally, both the Seminary and the Church challenge various trial rulings and jury instructions by the trial court. We agree that a new trial must be granted.
"It is well settled that a judgment n.o.v. will be entered only in a clear case, and that any doubts will be resolved in favor of the verdict [winner]." Stewart v. Chernicky, 439 Pa. 43, 53, 266 A.2d 259, 265 (1970). The question of the negligence of plaintiff's decedent was for the jury if reasonable persons could disagree about whether his conduct had contributed to the injury. See: Smith v. Port Authority Transit, 257 Pa. Super. 66, 71-72, 390 A.2d 249, 251 (1978). "A child is held to that measure of care that other [children] of like age, experience, capacity and development would ordinarily exercise under similar circumstances." Dunn v. Teti, 280 Pa. Super. 399, 402, 421 A.2d 782, 784 (1980). It has been held, however, that a thirteen and one-half year old boy, who has been in and around water, should realize the risk involved in swimming in deep water, for the perils contained in a body of water are obvious to children at an early age. Jennings v. Glen Alden Coal Co., 369 Pa. 532, 536,
[ 326 Pa. Super. Page 51787]
A.2d 206, 208 (1952). See also and compare: Hunt v. Graham, 15 Pa. Super. 42 (1900).
In the instant case, the decedent had been a twelve year old, seventh grade student of above average intelligence. There was some evidence that he could not swim. Other evidence was to the effect that he could swim, but not well, and that on prior occasions he had been careful not to venture into deep water. One of the boys testified that he had seen the decedent "doggie paddling" in the deep end of the pool on the night of the drowning and had asked him if he was alright; other boys also had seen the decedent in the deep water. It was obvious which end of the pool was deep, they said. Under these circumstances, the trial court concluded, and we agree, that a jury could have found that the decedent was causally negligent in failing to avoid an obvious hazard. Ms. Rivera's motion for judgment n.o.v. was properly denied.
The Seminary also contends that judgment n.o.v. should have been entered in its favor. It relies upon the Recreation Use of Land and Water Act of February 2, 1966, P.L. 1860, 68 P.S. § 477-1 et seq. The stated purpose of this Act is "to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." 68 P.S. § 477-1. An owner of recreational land, as defined in the statute, "owes no duty of care to keep the premises safe for entry or use by others for recreational purposes." 68 P.S. § 477-3. An owner who "directly or indirectly invites or permits without charge any person to use such property for recreational purposes" does not incur liability for injury to such persons except "[f]or wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity." 68 P.S. §§ 477-4 and 477-6. The Seminary contends that the Act relieved it from a duty to use reasonable care and, in the absence of malicious conduct, rendered it immune from liability to those persons who used its pool without charge. Ms. Rivera, on the other hand, argues that the statute was
[ 326 Pa. Super. Page 518]
intended to apply only to lands in rural Pennsylvania and not to lands in urban centers such as Philadelphia. These contentions require that we examine more closely the history and import of this legislation.
The Pennsylvania statute was patterned after the model act proposed in 1965 by the Council of State Governments. See Suggested State Legislation, Vol. XXIV, Public Recreation on Private Lands: Limitation on Liability, pgs. 150-152 (1965).
The impetus behind the model legislation was "to encourage availability of private lands by limiting the liability of owners." The Council asserted that "in those instances where private owners are willing to make their land available to members of the general public without charge . . . every reasonable encouragement should be given." 24 Suggested State Legislation, supra at 150.
McCarver v. Manson Park and Recreation District, 92 Wash.2d 370, 374, 597 P.2d 1362, 1364 (1979). See also: Watson v. City of Omaha, 209 Neb. 835, 838-40, 312 N.W.2d 256, 258 (1981).
The Pennsylvania Recreation Use Act repealed and replaced the Act of September 27, 1961, P.L. 1696, which had limited the "liability of landowners of agricultural lands or woodlands for personal injuries while hunting or fishing . . . ." (emphasis added). In the definitional section of the new statute, land is defined as "land, roads, water, watercourses, private ways, and buildings, structures and machinery or equipment when attached to the realty." 18 P.S. § 477-2(1). In this manner, the Recreation Use Act of 1966 eliminated all geographical and recreational use limitations.
It is a rule of statutory construction that "[a] change in the language of a statute ordinarily indicates a change in legislative intent." Scanlon v. Commonwealth, Dept. of Transportation, 502 Pa. Super. 577, 585, 467 A.2d 1108, 1112 (1983), quoting Masland v. Bachman, 473 Pa. 280, 289, 374 A.2d 517, 521 (1977) (footnote omitted). Accord: Haughey v. Dillon, 379 Pa. 1, 6, 108 A.2d 69, 72 (1954); Commonwealth v. Lowe Coal Co., 296 Pa. 359, 365, 145 A.
[ 326 Pa. Super. Page 519916]
, 918 (1929); Deremer v. Workmen's Compensation Appeal Board, 61 Pa. Commw. 415, 420, 433 A.2d 926, 928 (1981). If the legislature had desired to restrict the applicability of the Act to land in rural and semi-rural areas, it is reasonable to assume that it would have retained the "agricultural land or woodlands" language of the former statute or inserted similar limiting language in the new Act. The fact that it did not do so is strong ...