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CONCEPCION L. RIVERA v. PHILADELPHIA THEOLOGICAL SEMINARY ST. CHARLES BORROMEO (03/14/86)

SUPREME COURT OF PENNSYLVANIA


decided: March 14, 1986.

CONCEPCION L. RIVERA, ADMINISTRATRIX OF THE ESTATE OF FREDERICK L. RIVERA, DECEASED, APPELLANT,
v.
THE PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. A/K/A ST. CHARLES SEMINARY AND OUR LADY OF LOURDES CATHOLIC CHURCH, APPELLEES. CONCEPCION L. RIVERA, ADMINISTRATRIX OF THE ESTATE OF FREDERICK L. RIVERA, DECEASED, APPELLEE, V. THE PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. A/K/A ST. CHARLES SEMINARY AND OUR LADY OF LOURDES CATHOLIC CHURCH. APPEAL OF THE PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. A/K/A ST. CHARLES SEMINARY

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

COUNSEL

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.

Author: Hutchinson

[ 510 Pa. Page 5]

OPINION OF THE COURT

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.

I.

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

[ 510 Pa. Page 6]

    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

[ 510 Pa. Page 7]

    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

[ 510 Pa. Page 8]

    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

[ 510 Pa. Page 9]

    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)

[ 510 Pa. Page 10]

    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.

II.

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

[ 510 Pa. Page 11]

    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

[ 510 Pa. Page 12]

    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.

III.

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

[ 510 Pa. Page 13]

    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 historical, archaeological, scenic, or scientific sites." 68 P.S. § 477-2.

In enacting the above statute, Pennsylvania's General Assembly adopted, essentially without change, a model act presented to the states by the Council of State Governments through their annual publication, Suggested State Legislation. The Recreation Use Act was presented to, and passed by, both houses of the Legislature without comment. The

[ 510 Pa. Page 14]

    purpose of proposing the model legislation was, however, explained in the following commentary accompanying the text of the model act:

Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available. Where the owners of private land suitable for recreational use make it available on a business basis, there may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises. However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.

In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.

The suggested act which follows is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner. In the case of lands leased to states or their political subdivisions for recreational purposes, the legislation expressly provides that the owner will have no remaining liability to recreationists, except as such liability may be incorporated in an agreement, or unless the owner is compensated

[ 510 Pa. Page 15]

    for the use of the land in addition to consideration for the lease.

The Council of State Governments, Public Recreation on Private Lands: Limitations on Liability, XXIV Suggested State Legislation 150, 150 (1965).

The Recreation Use Act is therefore designed to encourage the opening up of large, private land holdings for outdoor recreational use by the general public by limiting the liability of the landowner. Considering that purpose, we believe the Legislature intended to limit the meaning of the words "buildings, structures and machinery or equipment when attached to the realty" in Section 2 of the Act, 68 P.S. § 477-2, to ancillary structures attached to open space lands made available for recreation and not to enclosed recreational facilities in urban regions. Grammatically, this construction is indicated by the dual presence of the conjunctive "and" in the list, both before "buildings" as well as after "structures." The position of the limiting clause "when attached to the realty" at the end of the sentence is another such indication. All of these factors make it appropriate to treat the list beginning with the word "buildings" as a restrictive modifer of "land, roads, water, watercourses." Id.*fn17

[ 510 Pa. Page 16]

The intention of the Legislature to limit the applicability of the Recreation Use Act to outdoor recreation on largely unimproved land is evident not only from the Act's stated purpose but also from the nature of the activities it listed as recreational purposes within the meaning of the statute. Specifically, with the exception of "swimming," which may be either an indoor or outdoor sport, the recreational activities enumerated in the statute are all pursued outdoors.

[ 510 Pa. Page 17]

Moreover, while forty-six states, in addition to Pennsylvania, have enacted recreational use statutes,*fn18 we have been unable to find a single case in any of those jurisdictions in which an indoor recreational activity was held to fall within the purview of a recreational use act. In fact, most jurisdictions confronted with the question of whether a recreational use statute governs the liability of owners of even outdoor pools have ruled that it does not. See, e.g., Gibson v. Keith, 492 A.2d 241, 244 (Del.1985) (construing a statute identical to Pennsylvania's Recreation Use Statute and determining that it is "not applicable to urban or residential areas improved with swimming pools, tennis courts and the like"); Erickson v. Century Management Company et al., 154 Ga.App. 508, 268 S.E.2d 779 (1980) (statute does not encompass motel swimming pool but, instead, applies to larger bodies of water such as lakes and seashores even though "swimming" is listed in the statute among recreational purposes); Boileau v. DeCecco, 125 N.J.Super. 263, 310 A.2d 497 (1973), aff'd per curiam, 65 N.J. 234, 323 A.2d 449 (1974) (the legislature did not intend to grant tort immunity to owners of swimming pools in residential areas even though the statute includes "swimming" in its definition of sport and recreational activities). But cf. Blair v. Page 17} United States, 433 F.Supp. 217 (D.Nev.1977) (Nevada Sightseer Statute precludes liability for drowning in an outdoor pool constructed by private persons on land in a desolate area under the care and operation of the Bureau of Land Management).

Consequently, neither the language nor the purposes of the Recreation Use Act require a construction which applies its immunity to the Seminary's indoor pool. Instead, they induce us not to so construe it. Accordingly, we hold that the Seminary is not immune from tort liability under the provisions of Pennsylvania's Recreation Use Act.

IV.

In accord with this construction, Superior Court stated that "[t]o interpret the Recreational Use Act to apply to swimming pools so as to eliminate the need to exercise reasonable care in the operation and maintenance of pools regulated by authority of the Public Bathing Law, supra, would be unreasonable and absurd." Rivera, 326 Pa. Superior Ct. at 520, 474 A.2d at 611. Consequently, that court concluded that:

The operation of swimming pools is regulated by the Public Bathing Law and the regulations adopted thereunder; and one who fails to exercise due care in making the same safe for use can be made to respond in damages to one who has been injured as a result of negligence.

Id., 326 Pa. Superior Ct. at 521, 474 A.2d at 611.

The Seminary also challenges the holding that the Public Bathing Law applies, contending that it addresses only water cleanliness and that DER, in promulgating certain regulations, including that requiring lifeguards, exceeded the authority delegated to the agency under the statute.

The Public Bathing Law regulates "any place open to the public for amateur and professional swimming or recreative bathing, whether or not a fee is charged for admission . . . ." 35 P.S. § 673. Operators of such public bathing places are required to obtain a permit from DER, 35 P.S. § 676, and to keep the water clean and sanitary at all times. 35 P.S.

[ 510 Pa. Page 18]

§ 675. Violation of the statute's provisions constitutes a summary offense. 35 P.S. § 680d.

In 1971, DER issued regulations pursuant to the Public Bathing Law setting forth permit requirements and water quality and hygiene and safety standards for public bathing places. See 25 Pa.Code §§ 193.1-193.94. In 1974, the Department issued regulations requiring public bathing places "to reduce to a practical minimum the danger of injury to persons from drowning, falls, collisions, fires, nuisances, or hazard of any kind," 25 Pa.Code § 193.41, and to have "[o]ne or more competent lifeguards in adequate number . . . on duty . . . at all times the public bathing place is open to use . . . ." 25 Pa.Code § 193.42.

We do not quarrel with the Seminary's argument that administrative agencies may exercise only the powers and authority conferred on them either expressly, or by necessary implication, by the Legislature. Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 513, 454 A.2d 1, 4 (1982); Commonwealth v. J. & A. Moeschlin, Inc., 314 Pa. 34, 170 A. 119 (1934); Day v. Public Service Commission, 312 Pa. 381, 167 A. 565 (1933). "'The power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist. Such tribunals are extra judicial. They should act within the strict and exact limits defined.'" Pennsylvania Human Relations Commission v. St. Joe Minerals Corporation, 476 Pa. 302, 310, 382 A.2d 731, 735-36 (1978) (quoting Green v. Milk Control Commission, 340 Pa. 1, 3, 16 A.2d 9, 9 (1940)). Substantive rulemaking by administrative agencies is proper provided that the statutory delegation of power can reasonably be construed as authorizing it. Hospital Association of Pennsylvania v. MacLeod, 487 Pa. 516, 521, 410 A.2d 731, 733 (1980). These principles are well established.

Because the Public Bathing Law addresses only water quality and hygiene in public bathing places and does not address any other types of hazards to health and safety, the Seminary goes on to argue that the law cannot reasonably

[ 510 Pa. Page 19]

    be construed as conferring authority on DER to promulgate the regulations governing safety, generally, set forth in 25 Pa.Code §§ 193.41-193.45. However, on this record, the content of the current regulations makes it unnecessary for us to reach the question of DER's authority over safety matters.

Even if we were to conclude that DER exceeded its statutory authority in issuing regulations requiring lifeguards and other general safety precautions in public bathing places, the outcome in this case would not be affected because the regulations at issue do no more than illustrate in general common sense terms those precautions the standard of due care requires of owners of public bathing establishments under the common law. See, e.g., Cummings v. Nazareth Borough, 427 Pa. 14, 18, 233 A.2d 874, 877 (1967) ("[w]herever people publicly congregate to swim, dive and divert themselves in the water, a lifeguard is a compelling necessity"). Therefore, any error by the trial judge in instructing the jury that liability for Frederick Rivera's death could be predicated on violations of DER's regulations is harmless. On this record, nothing more is required than a correct instruction on the common law requirement of due care, as applied to swimming pools. Reference to the regulatory requirements is redundant and unnecessary.

V.

Nevertheless, Superior Court correctly awarded the Seminary a new trial because the trial judge's instructions regarding the duty owed the public by the Seminary under the Public Bathing Law were contradictory and generally confusing. Specifically, the trial court instructed the jury, in pertinent part, as follows:

The Seminary swimming pool was a public swimming pool governed by the Pennsylvania Public Bathing Law. Under the Public Bathing Law, the Seminary had a duty to equip, operate and maintain its pool so as to reduce to a practical minimum the danger of injury to persons from

[ 510 Pa. Page 20]

    drowning, falls, collisions, fires, nuisances, and other hazards of any kind.

There is also a provision with respect to lifeguards: one or more competent lifeguards in adequate number shall be on duty at the water side at all times the public bathing place is open to use by bathers and shall not be assigned other tasks which will divert their attention from the safety of the bathers.

Lifeguards must be capable swimmers and so forth.

I don't believe it is argued that, in the circumstances of this case, the Seminary was required to have a lifeguard present.

The argument, as I understand it, is that they had regulations, which is P-1, which you will have, and they were formulated back in 1967, but were not posted and apparently not known to the present Seminary authorities and/or Father Flynn.

But the position, I believe, is that there had to either be a lifeguard there, provided by the Seminary, if they knew or had reason to believe that children would be using the pool, or people would be using the pool, and/or, two, that they had a duty to supervise the use of the pool, particularly in the sense of requiring that there be a competent person or persons in charge of the outings such as these altar boys had that evening.

It has been pointed out that Father Flynn met all the qualifications of the Act of Assembly from the standpoint of experience. He had the necessary certification both in, I think, life saving and safety. But, then, there is a question of not only whether this was adequate supervision, but whether or not Father Flynn adequately performed his responsibilities as the one in charge of these children.

N.T. 707-08. We agree with Superior Court that the above instructions "were incomprehensible and of little or no value in assisting the jury to determine the nature of the duty owed to the decedent by the Seminary," Rivera, 326

[ 510 Pa. Page 21]

Pa. Superior Ct. at 525, 474 A.2d at 613,*fn19 and with its conclusion that, consequently, the Seminary must be granted a new trial. See Hamil v. Bashline, 481 Pa. 256, 275, 392 A.2d 1280, 1289-90 (1978); Smith v. Clark, 411 Pa. 142, 147, 190 A.2d 441, 443 (1963).*fn20

VI.

The grant of a new trial ordinarily "means a new trial generally; it restores a case to the status it had before the trial took place and is fully open to be tried de novo as to all parties and all issues." Mains v. Moore, 189 Pa. Superior Ct. 430, 434, 150 A.2d 549, 551 (1959). See Pennsylvania Co. for Insurances on Lives v. Lynch, 308 Pa. 23, 28, 162 A. 157, 158-59 (1932). In addition, a court may, sua sponte, order a new trial as to all parties, including those who have not appealed the judgment against them. Bergen v. Lit Bros., 354 Pa. 535, 47 A.2d 671, (1946). However, under the circumstances of this case, we believe Superior Court erred in fully opening up the case to a new trial.

We note, preliminarily, that Superior Court erred in sua sponte reversing the directed verdict in favor of Father Flynn since none of the parties challenged his dismissal on appeal to that court. In our adversarial system, the parties' judgment on these matters must be respected and a failure to make timely objection waives the issue. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Moreover, in the instant case, it is not necessary to reinstate Father Flynn as a party defendant in order to fairly resolve the outstanding issues among the other parties.

[ 510 Pa. Page 22]

When one defendant's tort liability is vicariously based on respondeat superior, the other parties are not initially required to pursue their rights of recovery, contribution or indemnification from the servant whose operative negligence led to the plaintiff's injury by joining that servant. See Betcher v. McChesney, 255 Pa. 394, 100 A. 124 (1917). It should not matter whether the decision to forego those rights is made at the outset of the case, or during its pendency. Therefore, we reverse Superior Court on this issue and reinstate the trial court's order dismissing Father Flynn from this case.

During the course of these proceedings the Church and Seminary challenged the damage award in several respects. Specifically, they argued, first, that the trial court erred in admitting evidence of fringe benefits as an item of damages and, second, that this Court should re-examine its decisions which hold that "[i]ncome tax as it relates to damages should be mentioned neither in argument nor in jury instructions." Gradel v. Inouye, 491 Pa. 534, 547, 421 A.2d 674, 680 (1980).

We believe the trial court correctly resolved the fringe benefits issue against the Seminary and Church. See Rivera v. The Philadelphia Seminary of St. Charles Borromeo, 7 Phila. 358, 382-84 (1977). In addition, we see no reason to re-evaluate our case law which holds that income tax consequences are not considered "'in fixing damages for the determination of decedent's earning capacity.'" Gradel v. Inouye, 491 Pa. at 547, 421 A.2d at 680 (quoting Girard Trust Corn Exchange Bank v. Philadelphia Transportation Co., 410 Pa. 530, 538, 190 A.2d 293, 298 (1963)).

In conclusion, we find no error in the proof or calculation of the damages to which Mrs. Rivera is entitled warranting a new trial. The issues relating to plaintiff's damages were fully and fairly litigated. Since that is so, we see no need to retry the liability of the Church to the plaintiff. As stated, the Church did not preserve the issue of its proportionate liability. The trial judge's erroneous

[ 510 Pa. Page 23]

    instructions resulted in prejudice only to the Seminary. Under these circumstances the appellant should not be deprived of her verdict against the Church simply because the Seminary has been awarded a new trial. The Church, therefore, is not prejudiced by our permitting plaintiff to recover her judgment from it. The Church's minimum proportionate percentage of liability and the amount of plaintiff's damages award reduced by decedent's 5% comparative negligence have been finally determined. The Church has not preserved the right to question the jury's attribution to it of 65% of the total negligence or 68.4% relative to the Seminary. The Church retains the right to pursue contribution from the Seminary provided the new trial results in a determination that the Seminary was in some degree causally negligent. However, that degree cannot exceed 30% of the total, or 31.6% vis a vis the Church.*fn21

Our determination that this appellant is entitled to retain her verdict is consistent with our cases which hold that:

[H]aving secured a verdict against one of two alleged tortfeasors, a plaintiff should not be denied his verdict

[ 510 Pa. Page 24]

    because the court is of the opinion that the verdict should also have been against the co-defendants who were exculpated: Trerotola v. Philadelphia, 346 Pa. 222, 226, 227, 29 A.2d 788; Felo v. Kroger Grocery & Baking Co., 347 Pa. 142, 145, 31 A.2d 552; Frank v. W.S. Losier & Co., Inc., 361 Pa. 272, 277, 64 A.2d 829; Ratcliff v. Myers, 382 Pa. 196, 202, 113 A.2d 558. See: 6A Stand.Pa.Prac. 161. This is especially true where the action is severable as well as joint: Bailey v. C. Lewis Lavine, Inc., 302 Pa. 273, 278, 153 A. 422. See: 39 Am.Jur. 49, New Trial § 25.

McArthur v. Balas, 402 Pa. 116, 122-23, 166 A.2d 640, 643 (1961).

'Where the cause of action is joint and several, a trial court may enter judgment on a joint verdict against one defendant and grant a new trial as to the other . . . . It is not easy to perceive . . . why the plaintiff should be compelled to lose her judgment against a portion [of the defendants] because it appears that the others are entitled to a new trial.'

Trerotola v. Philadelphia, 346 Pa. 222, 227, 29 A.2d 788, 790 (1943) (quoting Bailey v. C. Lewis Lavine, Inc., 302 Pa. 273, 277-78, 153 A. 422, 423 (1931)). See also Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974); Ratcliff v. Myers, 382 Pa. 196, 113 A.2d 558 (1955).*fn22 The reasoning of this line of cases, all of which involved a party defendant who was improperly exonerated in the original trial, applies with even greater force to cases, such as the one presently before us, in which both defendants, including the one who

[ 510 Pa. Page 25]

    has been awarded a new trial, were found liable in the original trial. The fact that the instant action is governed by a comparative negligence statute should not change these results.*fn23 See, e.g., Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985) (although each of three defendants was found by jury to be liable to some extent, jury's apportionment of liability was against the weight of the evidence; grant of new trial was properly limited to apportionment of negligence against the defendants and retrial of plaintiff's verdict was not necessary). If a new trial must be granted as to all parties and all issues under the circumstances of this case, then in every case involving multiple defendants, no issue pertaining to any one defendant could be resolved unless and until there was an error-free trial as to all defendants. Such a result is not in the interest of justice and judicial economy.

The Seminary is the only party defendant which continues to contest the judgment apportioning a percentage of liability to it on the basis of comparative negligence. Superior Court accepted its contention and properly found prejudicial error in the trial court's instructions on the Seminary's liability. We perceive no injustice in requiring a new trial solely for the purpose of determining the Seminary's proportionate responsibility to the Church, if any. We believe that a new trial for this purpose effectuates a just and fair result for all parties involved and will, at the same time, encourage, not inhibit, the prompt resolution of claims.

[ 510 Pa. Page 26]

VII.

Finally, the Seminary seeks indemnification from the Church.*fn24 Superior Court did not address this issue, having remanded for a new trial.

There is no indemnity contract in this case. An implied contract to indemnify cannot come into existence until the Seminary has been found liable to plaintiff and has discharged the obligation which arises out of that liability. The Seminary's right to indemnification, if any, must be determined in the new trial. It can be based only upon a determination that as between the Seminary and the Church, the Church was primarily responsible for discharging the obligation to pay plaintiff's judgment. See Burbage v. Boiler Engineering & Supply Co., Inc., 433 Pa. 319, 249 A.2d 563 (1969).

In summary, we hold that the Recreation Use Act does not apply in the circumstances of this case, and the Seminary, therefore, is not immune from liability. The Public Bathing Law does apply; however, because it was not necessary to reach the question of DER's authority over safety matters, the jury, if any, at the new trial should be instructed as to the standard of due care required of owners of public bathing establishments under the common law. At the new trial between the Seminary and the Church, the Church, which has been properly found liable to the plaintiff, will have the burden of proving the Seminary's causal negligence, if any. The plaintiff may participate in the new trial if she so chooses to protect any interest she may have in preserving a right to collect her judgment from the Seminary.

Superior Court's order remanding the record to Common Pleas for a new trial as to all parties on all issues is modified by limiting the new trial to the Seminary's proportionate liability, if any, in the damage judgment Common Pleas has entered on the jury verdict for plaintiff and the Seminary's right to indemnity from the Church for any payment it may be required to make.

[ 510 Pa. Page 27]

The judgment of Common Pleas as to the proportionate liability of plaintiff and the Church, and as to the amount of damages allowed to plaintiff, is reinstated.

Disposition

The judgment of Common Pleas as to the proportionate liability of plaintiff and the Church, and as to the amount of damages allowed to plaintiff, is reinstated.

NIX, Chief Justice, dissenting.

I respectfully dissent from the majority's position and conclude that the Recreation Use of Land and Water Act, Act of February 2, 1966, P.L. 1860, § 1 et seq., 68 P.S. § 477-1 et seq., is applicable to the instant action involving the St. Charles Seminary.

The majority reaches a contrary result by concluding, "[b]oth 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." In my judgment the clear language of the Act, the legislative history, as well as the Act's stated purpose clearly indicates otherwise.

The focal point of any statutory interpretation must be the language of the statute itself. 1 Pa.C.S. § 1939. "When the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). See also In re Fox's Estate, 494 Pa. 584, 431 A.2d 1008 (1981); Hellertown Mfg. Co. v. Commonwealth, 480 Pa. 358, 390 A.2d 732 (1978).

Section one of the Act states that its legislative purpose is to encourage owners of land to make available to the public certain areas for recreational purposes. 68 P.S. § 477-1.*fn1

[ 510 Pa. Page 28]

It further states that such owners would incur limited liability towards persons entering thereon for such purposes. Id. The operative words of the statute are defined in section two, 68 P.S. § 477-2, which reads as follows:

§ 477-2. Definitions

As used in this act:

(1) "Land" means land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty.

(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.

(3) "Recreational purpose" 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 skiiing, water sports and viewing or enjoying historical, archaeological, scenic, or scientific sites.

(4) "Charge" means the admission price or fee asked in return for invitation or permission to enter or go upon the land.

Both the majority opinion*fn2 and appellee maintain that the Seminary, an urban building, does not fall within the scope

[ 510 Pa. Page 29]

    of the Act. The Superior Court took the contrary view and concluded that an urban building could fall within the scope of the Act. However, they reasoned that since a swimming pool is not expressly included under the terms of the Act it did not fall within the scope of the Act's provisions.*fn3 My reading of the language of the Act suggests that these views are in error.

The Seminary as owner, possesses a fee simple interest in its building. In that building there is a structure, a swimming pool, to which the Seminary invited free of "charge" members of the general public*fn4 to engage in the recreational activity of swimming.

As the Superior Court aptly noted:

There is nothing unreasonable about applying the limited liability decreed by the legislature in a uniform manner to lands, whether urban, suburban or rural, which are made available for recreational use without charge. The broad language adopted by the legislature suggests most strongly that the legislature deemed the need for recreational lands in urban centers to be as great as the need therefor in rural areas of the State.

Rivera v. Philadelphia Theological Seminary, 326 Pa. Super. 509, 521-522, 474 A.2d 605, 611 (1984).

The above excerpt reflects the view expressed by J. Barrett in his analysis of a more restrictive statute than our Act. The Barrett reasoning is even more impressive where

[ 510 Pa. Page 30]

    our legislature has intentionally provided wider coverage than traditionally accorded in this area.

J. Barrett, Good Sports and Bad Lands: The Application of Washington's Recreation Use Statute Limiting Landowner Liability, 53 Wash.L.Rev. 1, 4-5 (1977).

An attempt to create an artificial exclusion to limit the owners of private property who would choose to open their lands for recreational purposes merely because the property is situated in an urban area, undercuts legislation such as the Act and frustrates the salutory purposes sought to be achieved.

Thus, because the Seminary is a building located in an urban area, it does not follow that the Seminary is not covered by the Act. Nowhere is it expressly stated in the Act that the recreational use must occur outdoors. I therefore believe it improper to create such a limitation by judicial fiat.

Moreover, contrary to the conclusion reached by the Superior Court, it is not necessary that the Act specifically enumerate swimming pool in order for that structure to be included within the scope of the Act. It is clear that the legislature intended to use the term "structure" in accordance

[ 510 Pa. Page 31]

    with its normal and accepted usage. 1 Pa.C.S. § 1903(a). If "structures" was intended to convey a special meaning for the purposes of this Act, it would have been included in the definitional section, 68 P.S. § 477-2, supra, where that limited meaning could have been specified. The Act lists swimming as one of the recreational purposes. 68 P.S. § 477-2(3). A swimming pool is a location where that activity frequently occurs. It is difficult to accept that the legislature intended to exclude this use from the language used in the Act. In interpreting statutes, we are obligated to avoid strained results. 1 Pa.C.S. § 1922(1). I thus conclude that the Act, by its clear terms, is applicable to the St. Charles Seminary.

In so concluding I must reject the result reached by the Superior Court that the regulations promulgated by the Department of Environmental Resources (DER) under the Public Bathing Law, Act of June 23, 1931, P.C. 899, as amended, 35 P.S. §§ 672-680d, supersede the Recreation Use of Land and Water Act. The majority raises the possibility that the DER regulations passed in 1974, 25 Pa.Code § 193.1 et seq., may be invalid because they exceed the scope of the enabling statute, the Public Bathing Law, supra. However, the majority does not resolve this issue but resorts instead to the common law. I believe that here the administrative agency not only went beyond the scope of statute itself, but also intruded upon an area in which there is express legislation. I am thus constrained to conclude that the regulations are not controlling in the instant case. Regulations passed by an administrative agency cannot supersede or repeal a statute passed by the legislature. Public policy is to be articulated by the legislature and not the agencies. See Western Pennsylvania Water Co. v. Pennsylvania Public Utility Commission, 471 Pa. 347, 370 A.2d 337, 339-40 (1977); Drexelbrook Associates v. Public Utility Commission, 418 Pa. 430, 212 A.2d 237 (1965). Hence, the DER regulations of 1974 cannot supersede the Recreation Use of Land and Water

[ 510 Pa. Page 32]

Act of 1966 which itself repealed all inconsistent acts or parts of acts. 68 P.S. § 477-8.

Even if resort to legislative intent is required, we also must reach the conclusion that the Recreation Use of Land and Water Act is controlling. The Recreation Use of Land and Water Act of 1966 repealed and replaced the Act of September 27, 1961, P.L. 1696, which limited the "liability of landowners of agricultural lands or woodlands" for "personal injuries while hunting or fishing." The new 1966 statute broadened its coverage to include "land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty." 68 P.S. § 477-2(1). The 1966 Act also enlarged upon the activities encompassed in the term "recreational purpose." See 68 P.S. § 477-2(3). The 1966 Act thus eliminated the prior geographical and recreational use limitations. It is a rule of statutory construction that a change in the language of a statute reflects a corresponding change in legislative intent. Masland v. Bachman, 473 Pa. 280, 289, 374 A.2d 517, 521 (1977); Haughey v. Dillon, 379 Pa. 1, 6, 108 A.2d 69, 72 (1954); Commonwealth v. Lowe Coal Co., 296 Pa. 359, 365, 145 A. 916, 918 (1929). By removing the former restrictive language, the legislature gave a clear signal that it intended to broaden the scope of immunity created under the Act.

Since the evidence presented at trial did not show that the St. Charles Seminary engaged in any willful or malicious conduct, 68 P.S. § 477-6,*fn5 I would hold that judgment n.o.v. should have been entered in favor of the Seminary.

[ 510 Pa. Page 33]

Accordingly, I would remand for a new trial to reassess the comparative negligence of the remaining parties, the decedent and Our Lady of Lourdes Catholic Church.*fn6

McDERMOTT, Justice, dissenting.

I join the Chief Justice in his reasons for dissent. As the majority notes, the Act granting immunity when land and facilities are offered free for charitable, recreational and instructional purposes was passed by the legislature without comment. The majority then offers the comments of the drafters of the model Recreation Use Act as a basis for their holding. The essence of that commentary and general purpose is in the following:

In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.

The Council of State Governments, Public Recreation on Private Lands: Limitations of Liability, XXIV Suggested State Legislation 150, 150 (1965).

The majority however, eschewing the clear intent of the General Assembly, ignores the obvious fact that the legislature,

[ 510 Pa. Page 34]

    without comment, in plain words and intention, did not mean to exclude those who cannot walk out their back door through leafy lanes to shining lakes, from the charity of those who offer indoor swimming pools in the hot and dusty city. The argument that they are excluded because they are easily supervised is ludicrous.

There is unexpected danger inherent in all recreational activities, whether it be the wild danger of the outback or a slip on a marble floor. The whole concept of immunity is the presence of danger. To say that a pond, lake, quarry, brook or swimming pool across a city line is immune when offered free to the public, but the same in an urban area is not, however comparable in size and danger, because it has a roof, is simply whimsical. The legislature balanced danger against a benefit to a great number of people; allowing a use of facilities with immunity from liability, great and small, so that many could have, what the possible consequences for an injury to one, would make improvident to give to any.


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