Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Stephenson, Senior Justice
MISTY ANN HAYS PHILLIPS, EXECUTOR
OF THE ESTATE OF RICHARD WILLIAM PHILLIPS,
DECEASED
OPINION BY
v. Record No. 980444 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
January 8, 1999
SOUTHEAST 4-H EDUCATIONAL CENTER, INC., ET AL.
FROM THE CIRCUIT COURT OF SUSSEX COUNTY
Robert G. O'Hara, Judge
The principal issue in this appeal is whether the trial
court erred in striking the plaintiff's evidence at the
conclusion of the plaintiff's case-in-chief. We also determine
whether the trial court erred in excluding certain evidence
proffered by the plaintiff's expert witness.
I
Misty Ann Hays Phillips, Executor of the Estate of Richard
William Phillips, deceased (the Plaintiff), filed an action
against Southeast 4-H Educational Center, Inc. (the Center),
Susan Morlino, and Nicole Gipson (collectively, the Defendants)
for the wrongful death of Richard William Phillips. The
Plaintiff alleged that Richard's death by drowning was caused by
the Defendants' negligence.
The case was tried to a jury, but, at the conclusion of the
Plaintiff's case-in-chief, the trial court struck the
Plaintiff's evidence and entered judgment for the Defendants.
We awarded the Plaintiff this appeal.
II
In reviewing the trial court's decision to strike the
Plaintiff's evidence, we will view the evidence, and all
reasonable inferences drawn therefrom, in the light most
favorable to the Plaintiff. See Mullins v. Virginia
Lutheran Homes, 253 Va. 116, 119, 479 S.E.2d 530, 532-33
(1997).
The Center operated a 25-yard swimming pool in Sussex
County. Morlino was the pool's senior lifeguard and manager,
and Gipson was a lifeguard. Both lifeguards had the required
certificates in lifesaving and cardiopulmonary resuscitation
(CPR).
Richard was 32 years old. He was about six feet four
inches tall and a strong swimmer.
Morlino, who was called by the Plaintiff as an adverse
witness, testified that, on the day before Richard drowned, she
had observed him swim underwater the length of the pool and back
several times. When Richard completed each lap, he came to the
surface of the water, took a breath of air, turned, and swam
another lap. After several laps, Richard stopped swimming.
Before coming to the water's surface, however, he had held his
2
breath and had lain on the bottom of the pool in the shallow end
for a brief period.
The following day, May 30, 1993, Morlino and Gipson were on
duty as lifeguards. Morlino again observed Richard, who was
accompanied by Richard Wayne Parkllan, swimming in the pool.
After about 30 minutes, Parkllan got out of the pool and sat on
the deck. Richard, who was then the only person in the pool,
continued to swim.
As he had done the previous day, Richard began to swim laps
underwater. He continued to swim laps for 15 to 20 minutes
while Morlino watched. After completing one of the laps,
Richard stood in the shallow end of the pool, which is three
feet deep, and then went back under the water. As Richard sat
under the water, Morlino noticed bubbles coming to the surface.
When the bubbles disappeared and Richard did not come to
the water's surface, Morlino became concerned. Within
"moments," Morlino jumped into the pool to ascertain Richard's
condition. With Parkllan's assistance, Morlino pulled Richard
out of the pool and onto the deck. Gipson telephoned for
emergency response personnel.
Richard was not breathing and had no pulse, so Morlino and
Parkllan alternated in administering CPR. Approximately 10
minutes later, they were relieved by a rescue squad member.
While CPR was being administered, Richard vomited, but he
3
remained unconscious. The rescue squad took him to a hospital
where he was pronounced dead. An autopsy revealed that the
cause of death was drowning.
The Plaintiff called Gerald M. Dworkin as an expert
witness. Dworkin was qualified as an expert in water safety and
as an emergency medical technician (EMT) with training in
defibrillation. Dworkin testified that, in his opinion, the two
lifeguards breached the acceptable standard of care in failing
to sit in the elevated lifeguard chairs, to recognize signs of
passive drowning, and to effect a timely rescue. Dworkin
further testified that it was his opinion that the Center's
management breached the acceptable standard of care in failing
to have site-specific training and to have a standard operating
procedure.
III
We first consider whether the trial court erred in
excluding a portion of Dworkin's testimony. Dworkin would have
opined that, after a victim stops breathing, his heart continues
to beat for several minutes. Dworkin would have opined further
that, if Richard had been removed from the water within 30
seconds of the onset of drowning, he would have had a heartbeat,
CPR would have been unnecessary, and artificial respiration
would have been successful. The trial court excluded this
4
testimony, concluding that this involved a medical opinion and
that Dworkin was not qualified to render such an opinion.
Whether a proffered expert opinion should be excluded is a
matter that rests within the sound discretion of a trial court.
The court's decision to exclude such testimony will not be
reversed on appeal unless the record clearly establishes that
the expert was qualified to express the opinion. Grubb v.
Hocker, 229 Va. 172, 176, 326 S.E.2d 698, 700 (1985).
Although the record shows that Dworkin was an EMT and
experienced in CPR and water safety, we cannot say that the
record clearly establishes that he was qualified to opine that
Richard would have survived had he been removed from the water
within 30 seconds of the onset of drowning. The opinion
requires technical knowledge in the field of medicine, and,
therefore, we cannot say that the trial court abused its
discretion in excluding this testimony.
IV
We now consider the principal issue in this appeal; that
is, whether the trial court erred in striking the Plaintiff's
evidence. Ordinarily, negligence and proximate cause are jury
issues. They become questions of law, however, when reasonable
minds could not differ about the conclusions to be reached.
Poliquin v. Daniels, 254 Va. 51, 57, 486 S.E.2d 530, 534 (1997).
5
Generally, the owner of a swimming pool to which the
general public is invited for a fee
must exercise ordinary care for the safety of his
patrons. He must make reasonable provisions to guard
against those accidents which common knowledge and
experience teach are likely to befall those engaged in
swimming and other aquatic sports for which he has
provided facilities, but the owner is not an insurer
of the safety of his patrons.
Blacka v. James, 205 Va. 646, 649, 139 S.E.2d 47, 50 (1964).
Depending upon the circumstances involved, an owner of a
swimming facility may have a duty "to station qualified
lifeguards at the [facility] to supervise patrons and rescue
those in peril," and, "[i]n such case, the [facility] owner is
liable for the negligence of lifeguards in the performance of
their duties." S & C Company v. Horne, 218 Va. 124, 128-29, 235
S.E.2d 456, 459 (1977). A lifeguard's duty is twofold. "First,
he has some duty to observe swimmers for signs of distress;
second, he has some duty at some point to attempt rescue of
those in distress." Id. at 129, 235 S.E.2d at 459. In the
performance of the second duty, a lifeguard must exercise the
care that an ordinarily cautious lifeguard would exercise under
similar circumstances. Id.
In the present case, Morlino, called by the Plaintiff as an
adverse witness, testified that she and Gipson were able to see
Richard from their positions on the pool's deck, that they were
watching Richard the entire time he was in the pool, and that
6
they responded promptly when they realized that Richard was in
distress. Morlino's testimony is uncontradicted; therefore, the
Plaintiff is bound by it. See Retail Property Investors, Inc.
v. Skeens, 252 Va. 36, 41, 471 S.E.2d 181, 183 (1996). The only
evidence in the present case to suggest that the Defendants were
negligent comes from the opinions of Dworkin.
The Plaintiff's theory of recovery is that Morlino and
Gipson were negligent in not recognizing Richard's
unconsciousness sooner and that, if they had, Richard could have
been saved. Dworkin testified that, when Richard was lying
motionless on the bottom of the pool and bubbles were coming to
the surface of the water, this "was a pretty good indication
that there was a problem." Dworkin further testified that
lifeguards should be active in their surveillance by practicing
the "10/20 second rule." According to Dworkin, this rule
requires a lifeguard to assess every situation for 10 seconds
before determining whether action is necessary and reassessing
that situation within 20 seconds. He opined that, because the
lifeguards "observed the bubbles, observed the lack of movement,
and actually timed this for a minute's time before they . . .
effected the rescue," they breached the 10/20-second rule and,
therefore, were negligent.
7
Viewing, as we must, Dworkin's testimony in the light most
favorable to the Plaintiff, we conclude that the Defendants'
alleged negligence is a jury issue.
But mere proof of an accident and negligence does not
establish a cause of action. There must be in
addition a causal connection between the negligence
and the . . . death complained of. Evidence tending
to show a causal connection must be sufficient to
remove the case out of the realm of speculation and
conjecture and into the realm of legitimate inference
before submitting it to a jury for its determination.
Blacka, 205 Va. at 650, 139 S.E.2d at 50. Thus, in the present
case, the Defendants' alleged negligence must have a causal
connection with Richard's drowning, and, in the absence of a
showing that the Defendants' negligence was the proximate cause
of the death, there can be no recovery.
We have carefully examined the record to find evidence
tending to show that the Defendants' alleged negligence
proximately caused Richard's death, and we find none. At oral
argument, Plaintiff's counsel was asked to pinpoint in the
record evidence of causation. Counsel directed this Court to a
portion of Dworkin's testimony wherein he testified that, if
Richard had had a pulse when he was removed from the water and
artificial respiration had been timely undertaken, then "there
[was] a good chance that [he was] going to recover." (Emphasis
added.) We can only speculate, however, when Richard's pulse
stopped, and we do not think that an undefined "good chance" of
8
recovery removes the issue of causation from the realm of
speculation and conjecture. Therefore, we hold that the trial
court did not err in striking the Plaintiff's evidence.
V
Accordingly, the trial court's judgment will be affirmed.
Affirmed.
9
Phillips v. Southeast 4-H Educational Center, Inc.
Combined Opinion