No. 157 EASTERN DISTRICT APPEAL DOCKET, 1984. Appeal from Order of Superior Court of Pennsylvania Entered March 23, 1984 at Nos. 310, 311 and 476 Philadelphia, 1982. No. 158 EASTERN DISTRICT APPEAL DOCKET, 1984. Appeal from Judgment of Superior Court of Pennsylvania at Nos. 310, 311 and 476, Philadelphia, 1982, Reversing judgment of Philadelphia Court of Common Pleas, Trial Division, at No. 181, January Term, 1977
Jeffrey M. Stopford, Charles W. Craven, Philadelphia, for appellant.
Byron L. Milner, Theodore H. Lunine, Philadelphia, for Our Lady of Lourdes.
Charles W. Craven, (at No. 157), Jeffrey M. Stopford, (at No. 158), Philadelphia, for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a Dissenting Opinion in which McDermott and Zappala, JJ., join. McDermott, J., files a Dissenting Opinion in which Nix, C.j., and Zappala, J., join.
This is a comparative negligence case.*fn1 Concepcion Rivera (plaintiff or Ms. Rivera) and the Philadelphia Theological Seminary of St. Charles Borromeo, Inc. (Seminary) cross appeal, by allowance, a Superior Court judgment reversing a judgment entered by the Philadelphia Court of Common Pleas on a jury verdict for the plaintiff and against the Seminary and Our Lady of Lourdes Catholic Church (Church). Superior Court awarded the Church and the Seminary a new trial on both liability and damage issues. We now modify Superior Court's order by reinstating the judgment entered against the Church and remanding the case to Common Pleas for a new trial limited to the issue of the Seminary's liability and, in the event of its liability, an apportionment of causal negligence between the Church and the Seminary.
This case arose as a result of the accidental drowning of a twelve-year old boy, Frederick L. Rivera, in an indoor swimming pool owned by the Philadelphia Theological Seminary of St. Charles Borromeo, Inc. Rivera, a seventh grade altar boy from Our Lady of Lourdes Catholic Church, died during an evening swim party at the Seminary. The party was organized for the altar boys by Father Anthony Flynn, a priest then assigned to that Church.
Concepcion Rivera, the decedent's mother and administratrix of his estate, instituted these wrongful death and survival actions against the Church, the Seminary and Father Flynn. They were tried before a jury. It returned a
verdict in favor of the plaintiff finding the Church and Seminary 65% and 30% negligent, respectively.*fn2 In addition, the jury found the decedent 5% negligent.*fn3 The parties filed post-trial motions. The plaintiff sought judgment n.o.v. challenging the jury's determination that her son was contributorily negligent. The Seminary also sought judgment n.o.v. or, alternatively, a new trial on both the liability and damage issues. In addition, the Seminary claimed indemnification from the Church. The Church sought a judgment n.o.v. or a new trial on damages.*fn4 All of the above motions were denied by the Common Pleas Court, sitting en banc, and judgments were entered on the verdict.
All parties then cross-appealed to Superior Court. That court ruled that the jury could reasonably have found the decedent negligent and that, therefore, the trial court had properly denied plaintiff's motion for judgment n.o.v.
Before Superior Court, the Seminary argued that under the Act of February 2, 1966, P.L. (1965) 1860, 68 P.S. §§ 477-1-477-8 (Recreation Use Act),*fn5 it could be held liable
for Frederick Rivera's death only if the plaintiff proved its "wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity," 68 P.S. § 477-3, and that the plaintiff failed to meet its burden of proof on this issue. Superior Court rejected this argument holding that public bathing places and swimming pools do not fall within the purview of the Recreation Use Act but are, instead, subject to regulation by the Department of Environmental Resources (DER) under the Public Bathing Law, Act of June 23, 1931, P.L. 899, as amended, 35 P.S. §§ 672-680d,*fn6 and under which the Seminary might be found liable for violating the agency's regulations requiring lifeguards at all times when a public pool is open for use. Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 326 Pa. Superior Ct. 509, 474 A.2d 605 (1984).
Nevertheless, Superior Court ordered a new trial on the ground that the trial judge had issued erroneous and confusing instructions to the jury regarding the theories of negligence under which the plaintiff sought recovery from the Seminary for her son's death.*fn7 The court awarded a
new trial, generally, in favor of all parties on both liability and damage issues.*fn8
Finally, even though none of the parties challenged the trial court's directed verdict in favor of Father Flynn, Superior Court raised that issue sua sponte and held that the lower court's dismissal of Father Flynn was a manifest abuse of discretion.
These cross appeals followed.*fn9 On this appeal, Ms. Rivera contends, first, that the Church should be bound by the judgment of liability entered against it because the Church appealed to Superior Court only from the damages award and because Superior Court's award of a new trial was based on trial error which affected the Seminary alone. Second, Ms. Rivera maintains that the Seminary's new trial
should be limited to relitigation of liability issues because the damages were fully and fairly litigated in the first trial.*fn10
The Seminary contends, first, that it cannot be held liable for the death of Frederick Rivera because the Recreation Use Act provides it with immunity from common law liability on this record. In addition, the Seminary argues that, in promulgating regulations governing public pool safety, including the regulation requiring lifeguards, DER exceeded its statutory authority under the Public Bathing Law and, consequently, the regulations are invalid. The Seminary alternatively argues that the safety regulations are inconsistent with the Recreation Use Act, which imposes no affirmative duties on landowners and are, to that extent, invalid.*fn11 See 68 P.S. § 477-8.*fn12 In addition, the Seminary argues that the issue of Father Flynn's liability should be relitigated.*fn13 Finally, the Seminary reiterates its claim that it would be entitled to indemnification from the Church and Father Flynn if this Court does not absolve it from all liability and a jury on remand again imposes liability on it.
In summary, the evidence was sufficient to support the jury's finding that decedent was 5% negligent, and because the Church has not preserved any other liability issues it cannot contend that it was less than 65% negligent. We are thus required to determine (1) whether the Recreation Use Act provides immunity to the Seminary, (2) whether the Public Bathing Law applies and the regulations promulgated by DER pursuant to that law are valid, (3)
whether the issues of damages and of Father Flynn's liability should be relitigated, (4) whether the Seminary is entitled to a new trial on the issue of its liability, (5) if so, whether it is entitled to indemnification from the Church and Father Flynn, and (6) the scope of that trial.
The evidence presented at trial established that no one saw Frederick Rivera go below the surface or otherwise experience difficulty in the water. Two boys present during the evening in question testified that they saw the decedent at the deep end of the pool. One testified that he saw Rivera "doggie paddling" near the diving board at the deep end. The boy asked Rivera if he was "all right" and the decedent responded affirmatively. Rivera's body was noticed on the bottom of the deep end of the pool at approximately 8:15 p.m., twenty minutes after the group entered the pool area. Father Flynn was not at the pool when the body was discovered but was, instead, in a nearby locker room where he had gone to get the phone number of the pizza shop he planned to take the boys to after the swim. No other adult was supervising the boys at that time. On being apprised of the situation, Father Flynn, who is an excellent swimmer and trained in water rescue, dove into the pool and retrieved Rivera's body. His attempts to revive the boy were unsuccessful.
The evidence indicated that Rivera was a poor swimmer who, during previous outings, had been restricted from entering water deeper than his height. The evidence further established that the pool depths were clearly marked and that Rivera's body was found in the area of the pool which was twelve feet deep and so marked.
Father Flynn brought the boys to the pool without having specifically obtained permission in advance from the Seminary or having otherwise notified them of the swimming party he had planned. It was his understanding that a priest, and any group of persons the priest invited, were
permitted to use the pool without obtaining prior permission from the Seminary.
Vincent Rossi, a lay teacher at Our Lady of Lourdes Catholic Church, testified that, from 1970 or 1971 to 1976, he brought groups of school children to the Seminary pool twice a week. Mr. Rossi further testified that he was not aware of any rules or regulations at all concerning the use of the pool, nor specifically of any rule requiring advance permission to either use it or prescribing hours during which the pool could be used by outside groups. Both defendants admitted that Father Flynn, a graduate of the Seminary, brought groups to the pool about 75 to 100 times during his tenure of four and one-half years at the Church and had organized similar excursions prior to his assignment with the defendant Church.
The entrance to the pool was locked when the boys, accompanied by Father Flynn and two parents, arrived at the Seminary at approximately 7:50 p.m. on the day in question. No Seminary personnel of any kind were present. Father Flynn, the boys and the father of one of the boys gained access to the building housing the pool by entering the Seminary's main entrance and then making their way through a labyrinth of halls. The group gained access to the pool itself through a fire door.*fn14
Monsignor Burns, Rector of the Seminary at the time the drowning occurred, testified that people who wished to use the Seminary's pool, ordinarily, would telephone or write him for permission. He would, in turn, relay such requests to Father Hagan who, at that time, was responsible for scheduling the use of the pool by outside groups. Monsignor Burns further testified that the Seminary did not charge a fee for the use of its pool nor did it provide lifeguard service to outside groups.
Monsignor Burns also stated that in 1967 a memorandum was sent to all priests in the Archdiocese setting forth the
regulations governing the use of the Seminary's swimming pool. That memorandum, introduced at trial as Exhibit P-1, contained the following rule:
All groups visiting the Seminary pool must be accompanied by a priest or seminarian who will be responsible for their conduct while they are on the seminary premises. The priest or seminarian must remain with his group the whole time they are at the pool. No exceptions can be made to this rule.
N.T. 487 (emphasis in original). The memorandum, additionally, provided that there had to be one adult supervisor for every seven boys. Monsignor Burns testified that these rules were still in effect in 1976 but conceded that the rule governing adult supervision was not posted poolside and that the Seminary did not have a pool safety committee nor did it issue any further information regarding pool safety. Monsignor Burns further testified that the Dean of Students was responsible for enforcing the rules announced in the 1967 memorandum. However, Father Hagan, who held that position at the time Frederick Rivera died, testified that he had not actually seen the memorandum until it was shown to him at trial.
We turn first to the Seminary's contention that its liability for young Rivera's death is precluded under the provisions of the Recreation Use Act. Specifically, the Seminary would have us construe the Act to immunize any owner of a swimming pool from liability so long as no admission fee is charged for its use. Both public policy and the legislative history of the Recreation Use Act show that it was not intended to, and should not, apply to immunize the Seminary from liability for negligence in the maintenance of its indoor swimming pool. The policy implications of such a result are so far-reaching and out of harmony, generally, with the modern trend in tort law*fn15 that we
cannot ascribe an intent to immunize owners of indoor pools from tort liability for foreseeable harm without a stronger indication of such intent than we can discern in this statute.
The stated purpose of the Recreation Use 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,*fn16 "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, 68 P.S. § 477-4, except "[f]or wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity." 68 P.S. § 477-6.
"Recreational purpose," under the Act, "includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports and viewing or enjoying ...