Estate of Schwabe v. Custer's Inn Associates, LLP

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No. 99-353

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 325

303 Mont. 15

15 P. 3d 903

DAVID H. SCHWABE, as Personal Representative

of the Estate of MARK DAVID SCHWABE, Deceased,

Plaintiff and Appellant,

v.

CUSTER'S INN ASSOCIATES, LLP, and

DBSI REALTY CORPORATION,

Defendants and Respondents.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Custer,

The Honorable Gary L. Day, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert L. Stephens, Jr., Billings, Montana; Richard J. Carstensen, Billings, Montana

For Respondents:

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J. Robert Planalp, Landoe, Brown, Planalp, Braaksma & Reida, Bozeman, Montana

Submitted on Briefs: January 13, 2000
Decided: December 12, 2000

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 David H. Schwabe, as personal representative of the estate of Mark David Schwabe (hereinafter the
Estate), appeals the summary judgment entered in favor of Custer's Inn Associates, LLP, and DBSI
Realty Corporation (hereinafter collectively referred to as Custer's Inn), by the Sixteenth Judicial District
Court, Custer County. The court determined that no material facts remained in dispute concerning the
element of causation in the Estate's wrongful death action claim of negligence per se, entitling the
Custer's Inn to judgment as a matter of law, and the Estate appealed.

¶2 We affirm.

¶3 The Estate raises four issues

1. Whether summary judgment in favor of Custer's Inn was proper based upon the District
Court's ruling that common law negligence had not been pled.

2. Whether the District Court erred by not allowing the Estate to amend its complaint to
specifically include a common law negligence theory.

3. Whether the District Court erred in granting summary judgment based solely on the violation
of the statute requiring CPR personnel to be on site without regard to other administrative safety
rules.

4. Whether the Estate was entitled to prior notice and opportunity for hearing before summary
judgment was granted to Custer's Inn?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 This wrongful death action resulted from a tragic event that occurred on April 14, 1994, when 22-
year-old Mark Schwabe drowned while swimming in Custer's Inn's indoor swimming pool in Miles
City, Montana. He was discovered at the bottom of the deep end of the pool by his co-worker, Brian

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Boeckel, who removed Schwabe and summoned help. The two men's stay at Custer's Inn was job
related; both were employed by a Billings company and had been working that morning in Sidney,
Montana.

¶5 Schwabe left their motel room that afternoon shortly after 2:00 p.m. to go swimming at the motel's
pool. Boeckel remained in the room making business phone calls. Boeckel left the room to join Schwabe
at the pool sometime between 30 and 40 minutes later. At first, he was unable to locate Schwabe, and
called for and looked for him around the pool area and in the bathrooms adjacent to the pool. He
observed Schwabe's clothing, shoes, glasses, and a towel located near the pool. He then discovered
Schwabe face down at the bottom of the deep end, which was between seven and nine feet deep.

¶6 Boeckel grabbed a nearby "shepherd's crook," a rescue device located near the pool, and managed to
pull Schwabe from the water onto the edge of the pool. At that time Boeckel observed that Schwabe's
face was blue. Boeckel did not observe any physical signs that Schwabe was alive. Boeckel rushed to the
front desk and a motel employee summoned emergency assistance at 2:48 p.m. Also at that time, the
front desk clerk attempted to connect the 9-1-1 line to a pool-side phone so that a 9-1-1 dispatcher could
give Boeckel instructions on how to perform CPR. The clerk was unable to make this connection. No
employee of Custer's Inn on duty that day was certified in CPR.

¶7 Emergency personnel arrived at 2:51 p.m., attempted to resuscitate Schwabe, who showed no pulse or
signs of breathing. Monitors showed no signs of any life-sustaining heart activity. Schwabe was taken to
an emergency room in Miles City by ambulance, and arrived at 2:59 p.m. There, emergency room
personnel continued to attempt resuscitation. No life-sustaining signs were detected. Mark Schwabe was
pronounced dead at the hospital at 3:35 p.m.

¶8 Precisely how Mark Schwabe initially got into distress in the pool, how he drowned, and how long he
was at the bottom of the pool remain unclear. The record is replete with speculation as to how and where
he entered the pool and whether he actually swam, dove into, or merely walked into the deep end from
the three-foot-deep shallow end. Testimony and expert opinions based on the medical record evidence
indicate that he had eaten prior to swimming, he had poor eyesight and had removed his glasses prior to
entering the pool, and that he was not a good swimmer. It is undisputed that the medical evidence
demonstrates that he suffered no injury to his head or neck from diving into the pool. Expert testimony
also indicated that a person can drown in approximately three to five minutes, and that irreversible brain
damage occurs within ten minutes or less of underwater submersion. Evidence also indicates that
Schwabe's body temperature was similar to the pool temperature.

¶9 David Schwabe, in his capacity as personal representative for the estate of Mark Schwabe, filed suit
on July 19, 1996, claiming that both Defendants were negligent per se in failing to comply with statutory
and administrative laws and regulations governing public swimming pool safety. The Estate alleged that
Custer's Inn's violations were a substantial contributing cause to Mark Schwabe's death. The complaint
was first filed in federal court, and was then transferred to state district court on October 29, 1996. The
complaint included the following allegations:

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5. That the defendants, each of them, were negligent in failing to comply with the rules and
regulations for the maintenance of swimming pools as set forth by the Montana Department of
Health and Environmental Sciences, Food and Consumer Safety Bureau.

6. That the regulations of the Montana Department of Health and Environmental Sciences, Food
and Consumer Safety Bureau were designed to protect members of the public and patrons
utilizing the CUSTER INN facilities.

7. That the violations of the safety regulations by the defendants were a substantial contributing
cause to the death of the decedent, and the defendants are negligent per se.

¶10 Although throughout discovery it pursued its negligence per se claim, the Estate would later
claim that it had also sufficiently pled general negligence under allegation number five. The
original complaint did not set out separate counts or claims or causes of action.

¶11 On December 7, 1998, the District Court denied the Estate's motion for partial summary judgment
on the issue of liability, concluding that "this case abounds with questions of material fact." The court
likewise denied Custer's Inn's motion for summary judgment, concluding that "this case appears to have
numerous issues of material facts."

¶12 The Estate's motion for summary judgment was not entirely focussed on its negligence per se
theory, however. The Estate also pursued a strict or "absolute" liability theory by arguing that violation
of the governing public pool laws and regulations established causation and liability as a matter of law.
The Estate's brief included an argument section entitled "LIABILITY BASED UPON NEGLIGENCE
PER SE AND NEGLIGENCE AS A MATTER OF LAW." The Estate did not discuss the elements of
ordinary or common law negligence. In arguing its negligence per se theory, the Estate contended that
Custer's Inn, by operating an unsafe pool in violation of state laws and regulations, was responsible for
any damages that occurred by permitting Mark Schwabe to use the pool--which it argued was a public
nuisance, as a matter of law. A cause for nuisance was not pled by the Estate. The Estate argued that
Custer's Inn's conduct--in operating an unsafe pool and then not preventing the use of it by Mark
Schwabe--was the proximate cause of the claimed damages.

¶13 On December 15, 1998, the District Court denied the Estate's motion to amend its original complaint
to expressly include a general, common law negligence claim. The court concluded that the motion was
not timely made, noting that the October 9, 1998 filing missed an October 2, 1998 deadline. The court
observed that even if it did not strictly observe the deadline, "the motion is inappropriate at this time
because it is filed a little over two (2) years following the filing of the original complaint" and was filed
after summary judgment motions were filed by both parties, upon which the court had previously ruled.
"Allowing the amendment of the complaint at this time would necessarily affect the substantial
discovery that has taken place in this case."

¶14 The court also ruled that unless the Estate could demonstrate that the general negligence theory had

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been explored during discovery, it could not be deemed "sufficiently pled" in the complaint. The court
entered an order on February 17, 1999, and determined that the Estate had failed to offer such proof, and
therefore could not establish the sufficiency of its pleadings with respect to an ordinary common law
negligence claim.

¶15 At a pretrial conference, on April 4, 1999, the District Court discussed the replacement of one of the
Estate's proposed expert witnesses, who would testify regarding the causation between the lack of a CPR-
trained employee at Custer's Inn and Mark Schwabe's drowning. The court specifically asked whether
the Estate would have an expert who would be able to testify, essentially, that but for the lack of a CPR-
trained employee at the motel, Mark Schwabe could have been resuscitated, and would not have died.
Counsel for the Estate stated that "[n]o one will go that far, Judge." Counsel for the Defendants then
informed the court that they would have a medical expert testify that no amount of CPR would have
saved Schwabe's life. Hearing this, the court stated:

I denied the Defendant's motion for summary judgment last December . . . . I have looked and I
have the right to revisit that. And I think I am going to grant the Defendant's motion for summary
judgment [and] vacate the trial date . . . . One of the reasons that I denied Defendant's motion for
summary judgment is because I felt that there were factual issues. The fact issues had to do with
if those regulations were in effect and did govern the use of this pool . . . how did that effect
causation? And I can find no way that causation could be proven here except through the CPR.

¶16 The court issued its written summary judgment on May 18, 1999. The court concluded that Schwabe
had failed to offer any proof that the conduct of Custer's Inn had caused Mark Schwabe's death. The
court stated that it had "discovered that the Plaintiff has no expert who can testify with a reasonable
degree of medical certainty that if the Defendants had had CPR-trained staff on duty that Mark Schwabe
would have survived." Custer's Inn had filed an affidavit of a medical expert providing that at the time
Mark Schwabe was removed from the pool, he was beyond resuscitation. Specifically, Dr. Thomas L.
Bennet averred that Mark Schwabe had been in the water for a prolonged period of time, and that the
Cardiac Run Report indicated that Mark Schwabe was "dead when the EMTs arrived." This expert
opinion was deemed "unrebutted" by the District Court.

¶17 Therefore, the court concluded that there were no facts in the record upon which an expert could
rely in concluding that "any violation or combination of violations of the Montana Health and Safety
Rules caused Mark Schwabe's death."

¶18 The Estate appeals the court's summary judgment in favor of the Defendants.

STANDARD OF REVIEW

¶19 This Court reviews an order granting summary judgment de novo, using the same Rule 56, M.R.Civ.
P., criteria applied by the district court. See Calcaterra v. Montana Resources, 1998 MT 187, ¶ 9, 289

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Mont. 424, ¶ 9, 962 P.2d 590, ¶ 9. This Court looks to the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits to determine the existence or nonexistence of a
genuine issue of material fact. See Erker v. Kester, 1999 MT 231, ¶ 17, 296 Mont. 123, ¶ 17, 988 P.2d
1221, ¶ 17.

¶20 Summary judgment is an extreme remedy which should be granted only when there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See
Rule 56(c), M.R.Civ.P., Calcaterra, ¶ 9. The party seeking summary judgment, therefore, has the burden
of demonstrating a complete absence of any genuine factual issues. Calcaterra, ¶ 9. The party seeking
summary judgment also must overcome the burden that all reasonable inferences that might be drawn
from the offered evidence will be drawn in favor of the party opposing summary judgment. Erker, ¶ 17.

¶21 Where the moving party is able to demonstrate that no genuine issue as to any material fact remains
in dispute, however, the burden shifts to the party opposing the motion. Calcaterra, ¶ 9. This burden
shift requires that the opposing party present material and substantial evidence, rather than merely
conclusory or speculative statements, to raise a genuine issue of material fact. Erker, ¶ 17.

DISCUSSION

¶22 The District Court concluded that even if Custer's Inn violated any combination of pool safety
statutes or regulations at issue, the Estate nevertheless failed to establish that this alleged negligence per
se caused the drowning death of Mark Schwabe. Thus, because causation was no longer in dispute--due
to the unrebutted evidence and expert opinions set forth by Custer's Inn--the court determined that
summary judgment in Custer's Inn's favor was appropriate.

¶23 In VanLuchene v. State (1990), 244 Mont. 397, 401, 797 P.2d 932, 935, we recited the five criteria
that a plaintiff must prove in a negligence per se case in order to prevail. Those criteria are as follows: 1)
the defendant violated the particular statute; 2) the statute was enacted to protect a specific class of
persons; 3) the plaintiff is a member of that class; 4) the plaintiff's injury is of the sort the statute was
enacted to prevent; and 5) the statute was intended to regulate members of defendant's class. See also
Nehring v. LaCounte (1986), 219 Mont. 462, 468, 712 P.2d 1329, 1333.

¶24 Ordinary or common law negligence requires proof of four elements: 1) existence of a duty; 2)
breach of the duty; 3) causation; and 4) damages. See White v. Murdock (1994), 265 Mont. 386, 389,
877 P.2d 474, 476. If a plaintiff is unable to establish any one element, the negligence claim fails. See
White, 265 Mont. at 389-90, 877 P.2d at 476; Dvorak v. Matador Serv., Inc. (1986), 223 Mont. 98, 107,
727 P.2d 1306, 1311 (citations omitted).

¶25 One key distinction between negligence per se and ordinary negligence is that once a violation of a
statute is proven, and the standards under VanLuchene are met, a defendant is negligent, as a matter of
law. This contrasts to ordinary or common law negligence where the element of duty is a question of
law, but the element of breach is generally a question of fact suitable for resolution by the fact finder at

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trial, and is therefore far less susceptible to determination as a matter of law. See generally Estate of
Strever v. Cline (1996), 278 Mont. 165, 175, 924 P.2d 666, 672. The breach of a statutory duty, under a
negligence per se claim, may also carry the added advantage of foreclosing common law defenses. See
Steiner v. Department of Highways (1994), 269 Mont. 270, 278, 887 P.2d 1228, 1233 (quoting Polld v.
Todd (1966), 148 Mont. 171, 179-80, 418 P.2d 869, 873) (scaffolding safety laws foreclose the common-
law defenses of assumption of the risk, contributory negligence, and negligence of a fellow servant).

¶26 Custer's Inn argues that where the two theories converge, however, is on the element of causation.
The Estate has argued that "there is no specific requirement that you show a specific cause related to a
specific violation." We agree with Custer's Inn.

¶27 Under either theory of negligence, if the defendant's conduct did not cause the alleged damages, the
plaintiff's claim must fail as a matter of law. Thus, as this Court has often stated, liability does not
become fixed upon a showing of negligence per se; rather, "there must be a determination of whether the
violation was the proximate cause of the alleged injuries." See, e.g., Steiner, 269 Mont. at 278, 887 P.2d
at 1234; Martel v. Montana Power Co. (1988), 231 Mont. 96, 103, 752 P.2d 140, 145 (stating that jury
instruction must provide that a violation of law is of no consequence unless it contributed as a proximate
cause to an injury found by the jury to have been suffered by the plaintiff).

¶28 Accordingly, Custer's Inn asserts that whether the District Court erred by denying the Estate's
motion to amend is immaterial at this point, and further suggests that even if the court's summary
judgment is scrutinized under the Estate's common law theory, the result would be the same. Again, we
agree with Custer's Inn.

¶29 The element of causation was the basis for the court's entry of summary judgment in favor of
Custer's Inn. Pursuant to our de novo review, we conclude that even if the Estate's original complaint
had sufficiently set forth a cause for ordinary negligence, or, alternatively, that the Estate should have
been permitted to amend its complaint to include this claim, if the Estate nevertheless failed to establish
any material fact dispute that the conduct of the Defendants' was the proximate cause of Mark Schwabe's
drowning death, summary judgment was properly entered by the District Court.

¶30 Thus, we need not address issues number 1 and 2, and those portions of other issues in which the
denial of the Estate's motion to amend is a factor. We proceed to the third issue raised by the Estate.

Issue 3.

Did the District Court err in granting summary judgment based solely upon the statutory
violation relating to CPR personnel, disregarding other violations of administrative and statutory
safety rules?

¶31Under this issue, our review is narrowed to whether any material facts pertaining to the issue of
causation remain in dispute. To this end, we first observe that the Estate has misconstrued the District

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Court's conclusion regarding CPR-trained personnel and other potential violations of statutory and
administrative safety rules.

¶32 The court's conclusion regarding causation was expansive: "there are no facts in the record upon
which an expert could rely in concluding that any violation or combination of violations of the Montana
Health and Safety Rules caused Mark Schwabe's death." (Emphasis added). The court's specific
reference to the CPR-trained personnel rule violation (pursuant to § 50-53-107(2), MCA, and Rule
(1)
16.1524(4), ARM) was in response to the Estate's failure to produce an expert witness who would
testify "with a reasonable degree of medical certainty that if the Defendants had had CPR-trained staff
on duty that Mark Schwabe would have survived." A review of the pretrial conference transcript clearly
reveals that the court determined that the Estate had failed to set forth any other legitimate causation
theory at that point.

¶33 Next, Custer's Inn asserts that even if this Court assumes that the Defendants breached either a
statutory or common law duty to operate a safe public pool facility, any or all such breaches cannot be
construed as the proximate cause of Mark Schwabe's death. Custer's Inn argues, for example, that on-
premises CPR-trained staff as required by law would have permitted resuscitation to commence at 2:48
p.m. rather than 2:51 p.m. when EMT personnel arrived. Custer's Inn argues that based on the
overwhelming medical evidence, Mark Schwabe was beyond resuscitation at 2:48 p.m.--an opinion
offered in its medical expert's affidavit and provided in an expert's disclosure statement report. Custer's
Inn also argues that other suggested factors raised by the Estate on appeal, such as pool water
temperature, the lack of adequate pool depth markings, the lack of an adequate floating shallow-end
deep-end division rope, inadequate lighting, and the lack of a working pool-side emergency phone, have
never been substantiated with any evidence whatsoever as contributing proximate causes throughout the
course of discovery leading up to the District Court's entry of summary judgment.

¶34 Nevertheless, pursuant to our de novo review, we are obliged to draw all reasonable inferences from
the offered evidence in favor of the party opposing summary judgment. See Erker v. Kester, 1999 MT
231, ¶ 17, 296 Mont. 123, ¶ 17, 988 P.2d 1221, ¶ 17. Further, we recognize that the element of
causation, like breach, is usually a question of fact in negligence actions and is thus not ordinarily
susceptible to summary judgment. See Craig v. Schell, 1999 MT 40, ¶ 12, 293 Mont. 323, ¶ 12, 975 P.2d
820, ¶ 12. Even so, we are mindful that a material fact issue concerning causation in a negligence case
may be determined as a matter of law, as Custer's Inn suggests, where reasonable minds could reach but
one conclusion as to whether a breach of a duty caused an accident. See Craig, ¶ 12. Further, the
causation element is ordinarily satisfied if the alleged damage suffered by a plaintiff wouldn 't have
occurred but for the defendant's conduct. See Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342,
371, 916 P.2d 122, 139 (quoting Prosser & Keeton on Torts § 41 (5th ed. 1984)).

¶35 Our review of the Estate's arguments here, as well as its summary judgment brief and the record
before the District Court, indicates that due to an apparent lack of direct causal evidence, it wishes to
superimpose a strict liability or perhaps a res ipsa loquitur theory onto its negligence per se claim--
meaning, causation may be inferred or need not be proven because Custer's Inn's pool facility was, as a

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matter of law, "dangerous" or a "public nuisance." See § 50-53-108, MCA.

¶36 We conclude that this argument, under a theory of negligence per se, or ordinary negligence, is far
too tenuous to establish causation under the test announced in Busta. As stated by a Georgia court in a
similar case: "drowning is not an occurrence that is within itself sufficient to indicate that it must have
been brought about by negligence on the part of someone. It is just as likely to happen as the result of
accident, which is negligence of no one." See Y.M.C.A. v. Bailey (Ga.App. 1965), 146 S.E.2d 324, 333,
cited with approval in Johnson for Johnson v. Young Men's Christian Ass'n of Great Falls (1982), 201
Mont. 36, 46, 651 P.2d 1245, 1251. Regardless of any lingering fact disputes over safety violations,
therefore, the Estate still must demonstrate that if specific instances of Custer's Inn's actions or
omissions are removed from the factual scenario, Mark Schwabe's drowning would not have occurred.
See Busta, 276 Mont. at 371, 916 P.2d at 139.

¶37 To this end, the Estate has provided the testimony and opinions of two expert witnesses, both of
whom reviewed the various factual accounts of Schwabe's drowning, including the detailed reports
provided by emergency personnel who attempted to resuscitate Schwabe at the pool and at the hospital.
One, MaryLou Iverson, a risk management consultant, was offered as an expert on pool safety. The
other, Gerald Cormier, a pool inspector for the state of Montana, conducted and reviewed Custer's Inn's
compliance with the various statutes and regulations at issue both before and after the drowning incident.

¶38 Iverson provided a report detailing the following opinions: 1) that the lack of attention paid to safety
and risk reduction procedures were contributing factors in the drowning death of Mark Schwabe; 2) that
Custer's Inn did not take pool safety seriously, based on her review of the record provided by the Estate's
counsel; 3) had there been a shallow-end deep-end divider rope across the pool and more adequate
marker numbers indicating pool depth changes, Mark "may not have gotten into trouble;"and (4)
Custer's Inn did not meet a legal standard of care for operating a safe pool.

¶39 During her deposition, however, she stated that she could not positively identify one safety
infraction in particular that caused Mark Schwabe's drowning, nor had she in fact inspected Custer's
Inn's pool facility or conducted a thorough review of Montana's statutory and regulatory pool safety
scheme.

¶40 Iverson's testimony thoroughly addressed the issue of the lack of a floating shallow-end deep-end
divider rope across the pool, which she claimed could have prevented Schwabe from entering the deep
end, and subsequently drowning. She admitted, however, that this opinion was speculative, and not
based on any evidence or knowledge that such a rope was not in place at the time, or that Mark Schwabe
in fact had entered the pool in the shallow end first and then had ventured to the deep end.

¶41 Likewise, testimony addressing the safety risk of the slope of the pool floor between the shallow end
to the deep end indicated that this could have been a possible factor in causing Schwabe's drowning, but
no evidence actually showed that it was factor, or that Schwabe touched bottom or attempted to touch
bottom while in distress prior to drowning.

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¶42 As for the lack of CPR-trained personnel, Iverson stated that the approximate two to five minute
delay before emergency medical personnel arrived and began administering CPR could have made a
difference in whether Mark Schwabe could have been resuscitated. She admitted, however, that she
lacked knowledge of whether Schwabe, medically speaking, could have been resuscitated had CPR been
administered more promptly. Also, Iverson stated that she was not qualified to give medical opinions
concerning the cause of death, or at what point a person can or cannot be resuscitated.

¶43 In sum, Iverson testified that she had no idea what Schwabe was actually doing, or what actually
occurred, at the time he drowned, or how long he was actually in the water prior to his drowning. At
best, she offered suggestions as to how Custer's Inn's pool could be made safer in the future.

¶44 Cormier similarly testified that the various rule violations, including inadequate depth markings,
lack of a floating safety line separating the shallow from the deep end, and the failure to have a CPR-
trained employee on the premises created a "heightened atmosphere of risk" making it "more likely that
a problem is going to occur" and therefore such circumstances, in his opinion, "substantially"
contributed to the drowning of Mark Schwabe. Nevertheless, Cormier also testified:

Q. However, you don't have an opinion that that heightened atmosphere of risk is any way
responsible for Mr. Schwabe actually drowning that day; is that right?

A. You're asking me to state with certainty, then, that because of the heightened atmosphere of
risk, that he drowned?

Q. Yes.

A. I can't state that.

¶45 Although offering fairly detailed scenarios of what he "presumed" occurred, Cormier admitted that
"[n]o one knows exactly what occurred" and that he lacked knowledge of what actually happened when
Mark Schwabe entered the water that day.

¶46 The Estate was therefore unable to procure medical expert testimony to rebut Custer's Inn's expert
opinion that "Mr. Schwabe was beyond resuscitation when his body was removed from the pool," or
otherwise place in dispute that CPR resuscitation efforts immediately following Schwabe's removal from
the pool could have saved his life. We conclude that the same holds true for the other alleged factors
raised by the Estate: there is simply a paucity of evidence of what caused Mark Schwabe to become
distressed and eventually drown in Custer's Inn's pool.

¶47 In light of the foregoing, the Estate optimistically claims in its brief to this Court that a "[g]ood
argument can be made that if Custer's Inn had followed these administrative and statutory rules, we
wouldn't be here today and Mark Schwabe would be alive."

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¶48 We conclude that summary judgment was appropriate here, however, because after years of
litigation, involving extensive discovery and the offering of opinions by numerous experts--as
represented above-- this "good" argument was simply never substantiated with any material facts or any
reasonably certain medical expert opinion indicating that Custer's Inn's alleged negligent actions or
omissions proximately caused the drowning death of Mark Schwabe. See Craig, ¶ 12. At best, the
Estate's assertions concerning causation, including those of its experts, are conclusory and speculative,
which are an insufficient basis for this Court to reverse summary judgment.

¶49 Although when measured against state safety standards, Custer's Inn may have offered its guests,
including Mark Schwabe, a less-than-safe place to swim in April of 1994, the uncontested medical
expert testimony and evidence clearly removes the motel's conduct from the causation standard under
our decision in Busta. In sum, pursuant to our de novo review of the record, even if we were to assume
that Custer's Inn was negligent in every alleged respect, the Estate has failed to raise a genuine issue of
material fact concerning causation. Therefore, the judgment of the District Court that entered summary
judgment in favor of Custer's Inn is affirmed.

Issue 4.

Whether the Estate was entitled to prior notice and opportunity for hearing before summary
judgment was granted to Custer's Inn.

¶50 The Estate argues that the District Court reconsidered and granted Custer's Inn's motion for
summary judgment at the April 4, 1999 pretrial conference without providing the Estate with any prior
notice or opportunity to fully present its position regarding what issues of material fact regarding
causation remained in dispute. The Estate claims, therefore, that this "sua sponte revisiting of summary
judgment issues previously decided, at the time set for final pretrial conference, is tantamount to a
judicial 'ambush'." The Estate argues that the court's order granting summary judgment should therefore
be vacated because the court violated the Estate's right to due process. We disagree.

¶51 We review discretionary trial court rulings for an abuse of discretion. See Konitz v. Claver, 1998
MT 27, ¶ 32, 287 Mont. 301, ¶ 32, 954 P.2d 1138, ¶ 32 (citations omitted). Discretionary trial court
rulings include such things as trial administration issues, scope of cross-examination, post-trial motions,
and similar rulings. See Konitz, ¶ 32. We concluded in Konitz that a district court's decision whether to
allow a party to testify at the summary judgment hearing was a discretionary ruling and was therefore
subject to review for an abuse of discretion. See Konitz, ¶ 32. We apply the same standard of review in
this instance as well.

¶52 Here, both parties moved for summary judgment in July of 1998, and fully briefed their respective
motions. Following an August 18, 1998 hearing, the District Court denied both motions on December 7,
1998. Four months later, at the April 6, 1999 pretrial conference, the court observed that new evidence
or new materials had arisen since its ruling on the original motions for summary judgment. Namely,
after questioning counsel, the court realized that, contrary to prior indications made to the court, the

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Estate would in fact be unable to produce expert testimony that would place the element of causation in
dispute.

¶53 Consequently, the court informed both parties that it would therefore revisit its earlier summary
judgment decision, and enter judgment in favor of the Defendants. The court provided both parties with
a detailed oral pronouncement of its reasons. Then, six weeks later, on May 18, 1999, the court entered
its written order granting the Defendants' motion for summary judgment.

¶54 As a general rule, an order denying summary judgment is interlocutory in character and not res
judicata and is therefore subject to later review by the trial court, if circumstances warrant. See generally
State ex rel. Davis v. District Court (1977), 172 Mont. 139, 140, 561 P.2d 912, 913; State ex rel. Kosena
v. District Court (1977), 172 Mont. 21, 22, 560 P.2d 522, 523. Thus, because the court here denied both
parties' motions for summary judgment, we conclude that both parties were effectively on notice, as of
December 7, 1998, that the motions may be subject to later review at any time, either upon motion by
the parties or at the court's discretion, in the furtherance of "good judicial administration," State ex rel.
Kosena, 172 Mont. at 22, 560 P.2d at 523. Under the procedural circumstances here, we conclude that
the District Court did not abuse its discretion by revisiting its earlier order denying summary judgment
at the parties' pretrial conference.

¶55 Far more critical to our analysis, therefore, is the issue of whether the Estate was afforded the
opportunity to present further evidence of material facts in dispute related to causation. As a general
rule, an oral argument is required for summary judgment unless it is specifically waived by all parties.
See Cole v. Flathead County (1989), 236 Mont. 412, 418-19, 771 P.2d 97, 101; Linn v. City County
Health Dept., 1999 MT 235, ¶ 8, 296 Mont. 145, ¶ 8, 988 P.2d 302, ¶ 8. This Court has stated that a
district court may not, by rule or otherwise, preclude a party from requesting oral argument, nor deny
such a request when made by a party opposing the motion. See Aetna Life Ins. Co. v. Jordan (1992), 254
Mont. 208, 211, 835 P.2d 770, 772 (quoting Cole, 236 Mont. at 418, 771 P.2d at 101).

¶56 At no time, however, did counsel for the Estate object to court's imposition of judgment on the
grounds that the Estate was not provided a second summary judgment hearing (or adequate notice, for
that matter). During and following the court's oral pronouncement, the Estate did not request a hearing,
nor did it file any motions requesting any such relief from the court, either prior to or following entry of
the written summary judgment.

¶57 The rule is well established that we do not consider issues raised for the first time on appeal, where
the complaining party did not provide the district court with the opportunity to correct the alleged error.
See Johnson v. Barrett, 1999 MT 594, ¶ 18, 295 Mont. 254, ¶ 18, 983 P.2d 925, ¶ 18; Kearns v.
McIntyre Const. Co. (1977), 173 Mont. 239, 251, 567 P.2d 433, 440. Here, the Estate cannot now claim
that it was denied something that was never requested of, or actually denied by, the District Court.

¶58 We hold, therefore, the District Court did not abuse its discretion when it entered summary
judgment in favor of Custer's Inn at the parties' pretrial conference, and then in writing on May 18, 1999.

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We conclude that the Estate was on notice that a summary judgment ruling could be revisited by the
District Court, and that the District Court did not deny or otherwise preclude the Estate's right to a
second summary judgment hearing.

¶Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER

Justice W. William Leaphart, dissenting.

¶60 I dissent. The Court's ruling upholding summary judgment due to lack of direct evidence of
causation allows Custer's Inn to take advantage of the very situation it created; that is, allowing Custer's
Inn, through its own noncompliance with safety regulations, to evade trial on the merits.

The District Court's Analysis:

¶61 The Estate originally moved for partial summary judgment on liability contending that a pool open
to the public may be a nuisance if certain public safety requirements are not met. In particular, the Estate
contended that Custer's Inn was in violation of § 50-53-107(1), MCA (when lifeguard not required) and,
among others, the following administrative regulations:

Rule 16.10.1524(3), ARM (no certified CPR personnel);

Rule 16.10.1525(7), ARM (guard lines separating shallow and deep end of pool);

Rule 16.10.1530(3), ARM (emergency telephone with posted instructions for emergency calls);

Rule 16.10.1506(3)(f), ARM (depth markings on side and top deck of pool).

¶62 In December of 1998, the District Court denied the Estate's motion stating: "In the Court's
opinion this case abounds with questions of material fact and therefore denies this motion for
partial summary judgment."

¶63 Then, in a subsequent decision in May of 1999, the court characterized its previous December, 1998

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ruling as having been premised upon the Estate's representation that it would produce an expert witness
who would testify that if Custer's Inn had a CPR trained person on staff, Mark Schwabe would not have
drowned. Some six months later, when it became apparent that the Estate could not produce such an
expert the District Court reconsidered its prior ruling, stating:

Now however, the Court has discovered that the Plaintiff has no expert who can testify with a
reasonable degree of medical certainty that if the Defendants had had CPR-trained staff on duty
that Mark Schwabe would have survived. The Defendants have filed with the Court the Affidavit
of Thomas L. Bennett, M.D., whose unrebutted opinion is that, at the time Mr. Schwabe was
removed from the pool, he was beyond resuscitation . . . .

The Court concludes that there are no facts in the record upon which an expert could rely in
concluding that any violation or combination of violations of the Montana Health and Safety
Rules caused Mark Schwabe's death. Any opinions that are made in this regard are speculative,
which is not surprising given the lack of evidence in this case as to how Mark Schwabe drowned.

¶I64 t is thus apparent that the District Court reconsidered the summary judgment issue due to the
Estate's inability to produce an expert who would say that, but for Custer's Inn's failure to have CPR-
trained staff, Mark would not have drowned. Although that inability certainly bears on the question of
whether the Estate could prove that violation of Rule 16.10.1524(3), ARM (certified CPR personnel)
caused Mark's death, it does not in any way detract from the Estate's allegations that the failure to have
adequate depth markings or a safety line were causative factors in his death. The District Court had
previously held that the case "abounds with questions of material fact." The inability to produce a
medical expert on resuscitation only defused one of the numerous allegations of safety deficiencies. As
to the other alleged deficiencies, which are preventative in nature (no depth markings, no safety line),
serious questions of material fact remained and summary judgment was inappropriate.

This Court's Analysis:

¶65 The Court rejects a res ipse type analysis as being far too tenuous to establish causation as required
in Busta v. Columbus Hosp. (1996), 276 Mont. 342, 371, 916 P.2d 122, 139. The Court cites to a
Georgia decision from the Court of Appeals, Div. 2, for the proposition that "drowning is not an
occurrence that is within itself sufficient to indicate that it must have been brought about by negligence
on the part of someone. It is just as likely to happen as the result of accident, which is negligence of no
one." See Y.M.C.A. v. Bailey (Ga. App. 1965), 146 S.E.2d 324, 333 (cited with approval by the
Montana Supreme Court in Johnson v. Young Men's Christian Ass'n of Great Falls (1982), 201 Mont.
36, 46, 651 P.2d 1245, 1251).

¶66 I do not find either the Bailey case or the Johnson case to be persuasive in the present context.

¶67 The Johnson case involved a defense verdict in Johnson's suit against the Y.M.C.A. of Great Falls

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(the "Y") for negligence in the care and supervision of his son, Mark, who was found submerged in the
"Y" pool during a "free swim" period. Johnson appealed challenging various evidentiary issues and a
jury instruction on the standard of care. Johnson also argued that the district court erred in failing to
grant his motion for summary judgment on the issue of liability. This Court affirmed on all issues.
Johnson, 201 Mont. at 47, 651 P.2d at 1251. It is noteworthy that in affirming the denial of summary
judgment we recognized that the genuine issues of material fact as to the alleged safety violations
precluded summary judgment. In particular, there were fact issues as to whether the "Y" had provided a
sufficient ratio of lifeguards to pool users according to water safety procedure and a factual question of
whether the "Y" had properly instructed its patrons in pool use in accordance with accepted water safety
standards. Johnson, 201 Mont. at 47, 651 P.2d at 1251. Similarly, in the present case there were fact
questions as to whether the Custer's Inn pool was deficient due to lack of depth markings and a safety
line between the shallow and deep water. The District Court here, like the district court in Johnson,
should have denied the summary judgment and allowed the trier of fact to determine whether the safety
violations caused the drowning.

¶68 In Bailey, the Court noted that "the pool was clearly marked as to depth from the shallow end to the
deep portion at the opposite end. There was nothing to indicate that it was defective in any respect or
that it contained hidden mantraps or concealed dangers." Bailey, 146 S.E.2d at 332. Thus the Bailey case
where there were no deficiencies, is in sharp contrast to the present case where, two weeks after the
drowning, Jerry Cormier of the Montana Department of Health and Environmental Sciences inspected
the Custer's Inn pool and found that there were no safety line partitions or backboards present and that
the depth markings were inadequate. Furthermore, the pool has a hopper configuration on the bottom
with a break at the five-foot depth where it drops sharply to nine feet. Cormier testified that this design
is hazardous since a swimmer who gets in trouble and tries to bounce off the bottom of the pool to reach
safety actually ends up getting fed into the deeper water. Cormier, in his deposition, concluded that "the
combination of inadequacies, as noted in [my] reports and earlier testimony, was a significant
contributing factor to the drowning death of Mark Schwabe on April 14, 1994."

¶69 While the Georgia court may have been correct in stating that a drowning is not an occurrence that
is "within itself sufficient" to indicate that it must have been brought about by the negligence on the part
of someone, a drowning which occurs in a hopper-shaped pool with no safety line partition between the
deep and shallow end and no adequate depth markings, is an entirely different matter. Unlike the CPR
regulation which is remedial in nature, these safety precautions are preventative in that they are designed
to afford swimmers the ability to appreciate the change in depth and the means to either avoid the deep
water or pull oneself free of the deep water with a safety line. Since the regulations do not require that
the pool be monitored by a remote camera, these preventative safety measures are all the more vital to
the safety of a lone swimmer.

¶70 Having invited Mark Schwabe to swim in its unattended defective pool, Custer's Inn should not be
allowed to bootstrap its way into a summary judgment by arguing that, since no one else was present,
the Estate is left with no direct proof as to how Mark drowned and thus its case must be dismissed. As
the District Court initially recognized, this case "abounds with questions of material fact."

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¶71 Finally, I turn to the requirements of § 50-53-107, MCA, which provide:

(1) Public swimming pools and public bathing places, including pool structures, methods of
operation, source of water supply, methods of water purification, lifesaving apparatus, safety
measures for bathers, and personal cleanliness measures for bathers, shall be sanitary, healthful,
and safe.

(2) A lifeguard is not required for a privately owned public swimming pool if:

(a) a sign is prominently displayed on the swimming pool premises with the words "No lifeguard
is on duty" or words of substantially the same meaning; and

(b) one individual per shift is on the premises, accessible to the pool, and currently certified as
competent in cardiopulmonary resuscitation by either the American red cross or the American
heart association.

¶72 The undisputed facts are that although Custer's Inn did have a "No Lifeguard on Duty" sign as
required by subsection (a), it did not have a CPR-trained person on staff and accessible to the pool as
required by (b). Thus, under the clear dictate of the statute, Custer's Inn was required to have a lifeguard
on duty. The Court dismisses this point in a footnote stating that the Estate did not argue on appeal that
there was a statutory duty to provide a lifeguard. The Estate did however raise the statute in its
complaint, in its motion for summary judgment and, on appeal, cited the statute and argued that it is a
criminal violation to operate a swimming pool in violation of the statute.

¶73 The statute requires that there be a lifeguard unless (a) there is a "No Lifeguard on Duty" sign and
(b) there is CPR-trained person on the staff. In arguing that, in violation of the statute, there was no CPR-
trained staff accessible to the pool, the Estate, by necessary implication argued that a lifeguard was
required. If one argues, as the Estate did, that the provisions of § 50-53-107, MCA, have been violated,
the only logical conclusion that can be drawn from that argument is that the entity in question failed to
have either a sign and/or a CPR-trained person and had no lifeguard on duty. In other words, failure to
have CPR-trained staff in itself does not constitute a violation. In addition to not having CPR-trained
staff accessible, you must also fail to have a lifeguard on duty. The violation is the failure to provide the
lifeguard. Obviously if there had been a lifeguard on duty, as required by law, the lifeguard would have
been present to either prevent Mark from getting into distress or to render CPR assistance in a timely
fashion.

¶74 Consistently with the Johnson case, I would hold that there are genuine issues of fact as to the cause
of this drowning and that the District Court erred in granting summary judgment.

/S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler and Justice William E. Hunt, Sr., join in the foregoing dissenting opinion.

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/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

¶75 I join Justice Leaphart's dissent, but add the following observation.

¶76 Section 50-53-107, MCA, requires that when a lifeguard is not provided at a privately owned public
swimming pool, a person trained in cardiopulmonary resuscitation be on the premises and "accessible to
the pool." A common sense interpretation of this requirement would mean that the person trained in
CPR be in a position to administer CPR at a point in time when it would have some lifesaving and
beneficial effect. The fact that Schwabe drowned in the unattended pool and was beyond resuscitation
by the time he was found was a direct result of the Defendants' failure to comply with § 50-53-107(2)(b),
MCA, by having someone trained in CPR accessible to the pool at a point in time when that person's
assistance would make a difference.

¶77 I agree with Justice Leaphart that the majority opinion allows the Defendants' failure to comply with
§ 50-53-107, MCA, to insulate it from liability. Schwabe's family cannot prove why he drowned, nor
that he could have been resuscitated because there was neither anyone there to observe him nor anyone
accessible who could administer CPR in a timely fashion. No reasonable interpretation of the law would
allow a defendant to benefit in this manner from its violation of the law.

¶78 For these reasons, I join in Justice Leaphart's opinion and dissent from the majority opinion.

/S/ TERRY N. TRIEWEILER

1. Subsection (2) under § 50-53-107, MCA, provides that "[a] lifeguard is not required for a privately
owned public swimming pool if: (a) a sign is prominently displayed on the swimming pool premises
with the words "No lifeguard is on duty" or words of substantially the same meaning; and (b) one
individual per shift is on the premises, accessible to the pool, and currently certified as competent in
cardiopulmonary resuscitation by either the American red cross or the American heart association." The
undisputed facts show that a sign in compliance with subpart (a) was posted at the Custer's Inn pool
facility, but that at the time of the drowning incident, no individual on the premises was certified in
compliance with subpart (b). The Estate does not argue on appeal that the failure to fully comply with
subparts (a) and (b) imposed a statutory duty on Custer's Inn to provide a lifeguard.

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