No. 01-839
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 321
JEREMY DAYBERRY, and DEBBIE LEHRKAMP,
Plaintiffs and Appellants,
v.
CITY OF EAST HELENA,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, CDV 2000-285
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, Montana
For Respondent:
Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena, Montana
Submitted on Briefs: May 23, 2002
Decided: November 25, 2003
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Jeremy Dayberry (Dayberry), a minor, and his mother, Debbie Lehrkamp, appeal the
judgment of the First Judicial District Court, Lewis and Clark County, granting the City of
Helena’s (the City) motion for summary judgment.
¶2 We address the following issue on appeal and affirm:
¶3 Did the District Court err in granting the City’s motion for summary judgment
when Dayberry did not present expert testimony in establishing his negligence and
strict liability claims?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On June 26, 1997, Dayberry went swimming at the City’s municipal swimming pool.
While at the pool, Jeremy dove head-first from the diving board with his hands at his sides.
As a result of the dive, he struck his head at the bottom of the pool, injuring his head and
neck.
¶5 The City’s swimming pool was constructed in 1972. It has a 14-foot diving board
that is 42 inches above the water line, and the swimming pool itself is nine feet deep.
¶6 In 1985, the Montana legislature amended its administrative rules, setting standards
for design and construction of swimming pools. These rules articulate specific board lengths
for various pool depths, and were made applicable to swimming pools constructed or
remodeled after June 28, 1985.
¶7 The District Court found that Dayberry needed expert testimony regarding pool
design and construction in order to establish a prima facie case of liability. Because
Dayberry did not intend to call an expert witness, the District Court granted the City’s
motion for summary judgment.
¶8 Dayberry now appeals the District Court’s judgment.
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STANDARD OF REVIEW
¶9 We review a district court’s grant or denial of a motion for summary judgment de
novo. Cole ex rel. Revocable Trust Cole v. Cole, 2003 MT 229, ¶ 8, 317 Mont. 197, ¶ 8, 75
P.3d 1280, ¶ 8. The movant must prove that no genuine issues of material fact exist. Once
the movant demonstrates this, the burden shifts to the nonmoving party to prove that a
genuine issue of material fact does exist. After a district court determines that no genuine
issues of material fact exist, the district court must then determine whether the movant is
entitled to judgment as a matter of law. Cole, ¶ 8. We review a district court’s legal
conclusions for correctness. Cole, ¶ 8.
DISCUSSION
¶10 Did the District Court err in granting the City’s motion for summary judgment
when Dayberry did not present expert testimony in establishing his negligence
and strict liability claims?
¶11 Dayberry argues that the City had a duty to warn him that the pool was too shallow
for the dive he attempted. Because both the pool and the diving board did not meet current
minimum safety standards, he contends that the City was under a continuing obligation to
keep the pool in a “healthful and safe condition.” Hence, Dayberry argues that the present
case is one of simple negligence--i.e., a child diving into a swimming pool which was too
shallow and which did not meet current minimum standards for pool design--and he does not
need expert witness testimony to establish that the City owed a duty to Dayberry which the
City allegedly breached.
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¶12 Dayberry also maintains that because the Administrative Rules of Montana require
a minimum pool depth for a specified diving board length, these minimum standards replace
the need for an expert witness to establish the applicable standard of care. Dayberry argues
that the City is negligent per se based on the administrative rules.
¶13 The City argues that in order to establish the appropriate standard of care applicable
to the City, Dayberry must produce expert testimony to that effect. Specifically, the City
argues that unless Dayberry produces expert testimony regarding the standard of care
applicable to operators of swimming pools or the allegedly dangerous condition of the
swimming pool, Dayberry cannot establish a prima facie case of negligence or strict liability.
The City also argues that Dayberry’s reliance on the theory of strict liability is inapplicable
to this case because a swimming pool is not a product. We agree.
¶14 Initially, Dayberry argues that the District Court erred in making findings regarding
pool design, because he did not even raise that issue. However, we note that since the issue
before the District Court was whether the City’s pool depth was adequate for diving, that
issue rests on the pool design not being safe for diving. We hold that the District Court did
not err in making findings about the pool design and its analysis.
¶15 Specifically, Dayberry relies on § 50-53-107, MCA, for his contention that the
statutory language sufficiently establishes the duty owed to patrons of the pool. This statute
states “[p]ublic swimming pools . . . must be sanitary, healthful, and safe.” Section 50-53-
107(1), MCA.
¶16 The above-quoted statutory language, however, does not define a particular standard
of conduct to which operators of public swimming pools must conform. Rather, it imposes
a general duty on the City to keep its pool safe. In order for Dayberry to establish the
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standard of conduct to which the City must conform, he must present expert testimony to
that effect.
¶17 We have held that expert testimony is required when the issue presented is
sufficiently beyond the common experience of the trier of fact and the expert testimony will
assist the trier of fact in determining the issue or understanding the evidence. Hulse v. State,
Dept. of Justice, 1998 MT 108, ¶ 48, 289 Mont. 1, ¶ 48, 961 P.2d 75, ¶ 48 (expert testimony
necessary to establish the relationship between alcohol consumption and nystagmus);
Durbin v. Ross (1996), 276 Mont. 463, 470, 916 P.2d 758, 763 (expert testimony not
necessary to establish a fraud claim where the Realtors were held to the same standard of
care as an ordinary citizen).
¶18 A New Hampshire case is directly on point. In Lemay v. Burnett (N.H. 1995), 660
A.2d 1116, the plaintiff dove into the defendant’s swimming pool which was eight feet deep.
As a result of the dive, the plaintiff hit his head at the bottom of the pool, injuring himself.
The plaintiff notified the defendant that he did not intend to use an expert witness. The
Superior Court, therefore, granted, and the Supreme Court of New Hampshire affirmed, the
defendant’s motion to dismiss, noting that expert testimony was needed because the issues
presented were beyond the common experience and knowledge of the jury. Notably, these
issues included both a duty to warn and a duty to establish the pool was unreasonably
dangerous. Lemay, 660 A.2d at 634-36.
¶19 Here, a juror of ordinary training and intelligence would not know whether the City’s
pool depth was inadequate, thereby requiring a warning or prohibition of diving, and, hence,
making the pool unreasonably dangerous. As the court in Lemay noted, we too “do not
believe that the average juror could determine whether the particular combination of diving
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conditions found in . . . [the City’s] pool--that is, water depth, diving board stiffness, diving
board height, etc.--led to reasonably safe diving conditions . . . .” Lemay, 660 A.2d at 636.
Expert testimony is required to assist jurors in determining whether the pool depth was
unreasonably dangerous for the diving board length. Thus, we hold that the District Court
did not err in reaching that conclusion.
¶20 Dayberry further maintains that expert testimony is not needed because the
administrative rules prove that the pool did not satisfy current minimum standards.
¶21 However the City’s pool is not subject to 16.10.1506, ARM (now 37.111.1114,
ARM), because this rule, by its terms, is only applicable to pools constructed on or after June
28, 1985. Indeed, the City’s pool was constructed in 1972, thereby implicating application
of 16.10.1309, ARM (now 37.111.1022, ARM). This administrative rule only requires a
pool with a diving board height like the City’s to be 8.5 feet deep, which the City’s pool
satisfies. No single minimum standard exists for swimming pools regarding depth and board
length, and if we were to accept that 16.10.1506, ARM, was applicable, which it is not, even
that rule does not specify a minimum depth for pools with a board length of 14 feet, like the
City’s. Thus, on this contention as well, the District Court was correct in concluding that
Dayberry must produce expert testimony concerning the standard of care applicable to
operators of swimming pools and to the pool design at issue.
¶22 As already noted, Dayberry relies on the legal theory of strict liability, maintaining
that a swimming pool is a product. However, we have previously held that a speed bump
is not a product, Harrington v. LaBelle’s of Colorado (1988), 235 Mont. 80, 84, 765 P.2d
732, 735, nor is a building, Papp v. Rocky Mountain Oil & Minerals (1989), 236 Mont. 330,
341, 769 P.2d 1249, 1256. In so holding, we took into account the policy considerations set
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forth in Brandenburger v. Toyota Motor Sales, U. S. A., Inc. (1973), 162 Mont. 506, 514-15,
513 P.2d 268, 273, in determining the relevancy in a strict liability case of whether or not
the product is in the stream of commerce. Because the building at issue in Papp was not in
the stream of commerce and was not mass-produced or prefabricated, we held that it was not
a product for strict liability purposes. Papp, 236 Mont. at 340-41, 769 P.2d at 1256.
¶23 Here, as with our analysis in Papp, we hold that because the City’s swimming pool
is not in the stream of commerce and is neither mass-produced or prefabricated, it is not a
product for strict liability purposes. Thus, we do not address Dayberry’s arguments under
this legal theory.
¶24 On appeal, Dayberry also raises the legal theory of negligence per se, although he did
not raise this theory at the District Court level. The rule is well established; we will not
address a party’s new argument or a party’s change of legal theory on appeal, as it would be
“fundamentally unfair” to fault the District Court in not ruling on an issue never before
presented. Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961
P.2d 100, ¶ 15.
¶25 The dissent argues that the 1985 Administrative Rules of Montana are relevant to the
question of whether the City has a duty to warn of unsafe conditions. Specifically, the
dissent maintains that § 50-53-107(1), MCA, imposes an “on-going requirement” that the
City keep its swimming pool “safe,” which the standards in 16.10.1506, ARM, target.
However, the statute does not define a particular standard. Rather, it makes a general
statement of public policy that pools be kept safe. The statute does not define what is “safe,”
or otherwise set standards.
¶26 Again, there is no single, current minimum standard for swimming pools in Montana.
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¶27 Administrative Rule 16.10.1506 articulates specific board lengths for various pool
depths. These standards, however, apply only to swimming pools constructed or remodeled
on or after June 28, 1985. The City’s swimming pool was constructed in 1972, in
accordance with 16.10.1309, ARM. This rule sets out ranges of pool depths for ranges of
board heights. These standards were not repealed when 16.10.1506, ARM, was adopted.
Therefore, the 16.10.1309, ARM standards are applicable to the swimming pool at issue
here.
¶28 While the dissent contends that 16.10.1506, ARM, impliedly repealed 16.10.1309,
ARM, the requirements of that doctrine are not met in this instance In Ross v. City of Great
Falls, 1998 MT 276, 291 Mont. 377, 967 P.2d 1103, we detailed the rules governing implied
repeal of statutes as follows:
A number of well-established principles guide our analysis of whether a
statute has been impliedly repealed. First and foremost, the repeal of a statute
by implication has never been favored in Montana. See, e.g., W.R. Grace &
Co., 238 Mont. at 450, 779 P.2d at 476; United States v. 196 Buffalo Robes
(1872), 1 Mont. 489, 495. The Montana Legislature is presumed to act with
deliberation and with full knowledge of all existing laws on a subject and, as
a result, it is further presumed that the Legislature “does not intend to interfere
with or abrogate a former law relating to the same matter unless the
repugnancy between the two is irreconcilable.” London Guaranty & Accident
Co. v. Industrial Acc. Board (1928), 82 Mont. 304, 310, 266 P. 1103, 1105;
see also Holly v. Preuss (1977), 172 Mont. 422, 426, 564 P.2d 1303, 1305-06;
Fletcher v. Paige (1950), 124 Mont. 114, 119, 220 P.2d 484, 486-87.
Ross, ¶ 17.
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¶29 Setting aside that we are dealing with administrative rules and not statutes, the two
administrative rules are not irreconcilable. Section 16.10.1506, ARM, clearly applies to
pools constructed on or after June 28, 1985, and a different standard--that set forth in
16.10.1309, ARM--clearly applies to pools constructed before that date. Presumably the
agency adopted 16.10.1506, ARM, with full deliberation and knowledge of 16.10.1309,
ARM, and intended not to abrogate the pre-1985 standards. The most likely explanation for
that decision is that there was no manifest need to put local governments to the expense of
having to remodel existing pools where no safety crisis had been demonstrated in the
operation of older pools.
¶30 But even assuming, arguendo, that 16.10.1506, ARM, applied to the City’s swimming
pool (which it does not), that administrative rule does not specify a minimum depth for a
pool with a diving board length of 14 feet. The administrative rule upon which the dissent
relies does not define the conditions which would make the City’s swimming pool safe,
further evidencing the need for Dayberry to produce expert testimony.
¶31 This is precisely why Dayberry needed an expert in pool design safety. That
testimony would have established the standard of care against which the jury could have
judged the design of the City’s pool in relation to water depth and board length, and whether
the City’s maintenance and operation of the pool breached that standard of care. These are
matters not within the common knowledge and experience of trial jurors, but are particularly
within those of experts in the field.
¶32 In summary, we hold that expert testimony is required to determine the standard of
care applicable to operators of the swimming pool and to determine the reasonableness of
the pool design at issue here.
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¶33 The District Court did not err in granting the City’s motion for summary judgment,
and that judgment is affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
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Justice W. William Leaphart dissenting.
¶34 I dissent. The District Court erred in concluding that Dayberry needed to call an
expert on pool design and construction in order to establish a prima facie case of liability.
Dayberry relies on the provisions of the ARMs as establishing maximum diving board
lengths for pools of given depths. This Court erroneously concludes that, since the ARMs
in question were adopted in 1985, some thirteen years after this pool was constructed, they
have no application to the incident in question. Obviously, the Court is correct that 1985
ARMs have no application to the construction of the pool in 1972. However, that is not to
say that the safety standards established in the 1985 ARMs do not have relevance to the
question of whether there is a duty to warn of unsafe conditions in a grandfathered pool.
Indeed, § 50-53-107(1), MCA, imposes an on-going requirement that public swimming pools
be healthful and safe. The ARMs clearly are relevant to the question of what pool and board
dimensions are deemed by the State of Montana to be “safe.”
¶35 The pool in question was nine feet deep and had a fourteen-foot diving board. Rule
16.10.1506(g), ARM (1985), provides that “[s]wimming pools having diving equipment
shall be designed and provide for a minimum water depth as called for in Table 1 and
Diagram 1, copies of which follow this rule and by this reference are made a part hereof.”
Table 1 clearly provides that a pool with a depth of nine feet shall have a diving board with
a “maximum” length of twelve feet. The Court relies on Rule 16.10.1309, ARM, which was
in existence in 1972 and has not been explicitly repealed. That section provides that if the
height of the diving board is less than two meters, the minimum depth of the water under the
end of the board must be eight and one-half feet. As the District Court noted, at forty-two
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inches high, the board in question was less than two meters. However, to the extent Rule
16.10.1309, ARM, is inconsistent with the subsequently passed Rule 16.10.1506, ARM, it
is impliedly repealed. Burnt Fork Citizens Coalition v. Board of County Comm’rs (1997),
287 Mont. 43, 951 P.2d 1020 (where differences between statutes exist, the earlier may be
impliedly repealed by the later one if they are plainly and irreconcilably repugnant to or in
conflict with each other). Here, Rule 16.10.1309, ARM (1972), allows for a pool of eight
and one-half feet depth to accommodate a diving board forty-two inches over the water.
This is irreconcilably in conflict with the 1985 ARM which requires that a pool of nine feet
depth can have a diving board of no more than twelve feet in length at no more than thirty
inches height over the water. The earlier 1972 ARM was impliedly repealed by the more
exacting 1985 ARM on the same subject.
¶36 Dayberry did not need to produce an expert to establish a standard of conduct to
which the City must conform. Jurors do not need an expert to conclude that, at fourteen feet
in length, the board in question exceeded the safety standard established by the State of
Montana through the adoption of the 1985 ARMs. Contrary to the Court’s suggestion,
Dayberry is not contending that the 1985 ARM required the City to “remodel existing
pools.” Rather, with the adoption of Rule 16.10.1506(g), ARM, the City clearly had a duty
to either (1) warn swimmers of the dangerous condition, (2) remove the diving board
entirely, or (3) replace the fourteen-foot board with a board no longer than twelve feet, at no
more than thirty inches over the water.
¶37 I would reverse the grant of summary judgment for the City and allow Dayberry’s
case to proceed.
/S/ W. WILLIAM LEAPHART
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Justice Jim Regnier joins in the dissent of Justice Leaphart.
/S/ JIM REGNIER
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