APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-179)
Before Aldisert and Sloviter, Circuit Judges, and Hannum, District Judge.*fn*
This is an appeal from a ruling by the district court in which a verdict was directed in favor of the appellee, Seven Springs Farm, Inc., (hereinafter "Seven Springs"). The suit which was dismissed as a consequence of this ruling was instituted as a wrongful death and survival action in diversity under Pennsylvania law and arose from the passive drowning of the decedent, John E. Onufer. The cause of action accrued when the decedent, a forty-six (46) year old male and business invitee of Seven Springs, entered the appellee's indoor pool and began swimming laps. Shortly thereafter several persons observed the decedent lying motionless on the bottom of the pool. Resuscitative efforts proved fruitless and the decedent subsequently expired. A negligence theory of liability was asserted for reasons that allegedly only one (1) lifeguard was attending the pool area, that he was not utilizing the lifeguard perch which afforded the best vantage point for observation, that his attention was diverted by the additional responsibility of monitoring pool admissions and that resuscitative efforts were belatedly begun thus rendering them useless.*fn1 The verdict was directed at the conclusion of testimony. The sole issue thus presented is whether the district court erred by directing a verdict in favor of the appellee when the evidence presented at trial is viewed in a light most favorable to the appellant. Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171 (3d Cir. 1976). For the reasons that follow, we conclude that the district court's ruling constituted reversible error.
In order for the appellant to have ultimately secured the relief requested at the trial level, he would have had to establish to the jury by a preponderance of the evidence that Seven Springs owed a duty of care to the decedent, that there had been a breach of that duty through negligent acts or omissions and that the negligence was the proximate cause of the decedent's demise. See, e. g., Mahler v. United States, 196 F. Supp. 362 (W.D.Pa.1961), aff'd, 306 F.2d 713 (3d Cir. 1962). Before the case was submitted to the jury, however, the district court undertook a preliminary scrutinization of the evidence upon the filing of the appellee's motion for a directed verdict pursuant to F.R.Civ.P. 50(a). Such a scrutinization was to be guided not by analyzing "whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party." Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978). "If the evidence is of such a character that reasonable men, in the impartial exercise of their judgment may reach different conclusions, the case should be submitted to the jury." Silverii v. Kramer, 314 F.2d 407, 409 (3d Cir. 1963). See also Patzig v. O'Neil, supra.
The district court in its preliminary scrutinization apparently concluded that the appellant had failed to present evidence establishing a causal connection between the alleged negligence of the lifeguard and the death of the decedent. A colloquy between the district court and counsel occurred at the close of testimony in a portion of which it was stated:
So even assuming that the lifeguards were negligent, and assuming that the lifeguards should have been looking, or sitting in the chair, there is no evidence at all to show in my view that the man would have been saved under these circumstances.
There is nothing to prove that even assuming he had been pulled out within a reasonable time that he would have been saved.
Because of this, we can't allow the lawyers to speculate, surmise, and conjecture. You have to have evidence to go on.
Under the circumstances, we have entered a verdict in favor of the defendant because of that failure of proof, as I view it, on the part of the plaintiff.
Notes of Testimony, p. 610. (Emphasis added). While assuming the existence of negligence, the district court applied a type of reverse "but-for" test-even had the lifeguard's attention been focused solely upon the swimming pool, there was no evidence presented to suggest that the decedent would have been observed in his passive struggle and, indeed, would have survived. In this regard, the district court relied upon certain testimony, to the exclusion of other evidence, that the decedent had in the past suffered from epileptic and psychomotor seizures which may have caused the drowning and that the passive nature of the drowning militated against observation by the lifeguard.*fn2
Our review of the district court's ruling will be conducted by analyzing the evidence adduced at trial and by applying it to the elements of proof necessarily made out to establish a negligence claim. Of course, the evidence will be viewed in a light most favorable to the appellant in accordance with the applicable standard. Fireman's Fund Insurance Co. v. Videfreeze Corp., supra.
There is sufficient evidence of record to suggest that the decedent enjoyed a status of a business invitee while on appellee's premises. Accordingly, although the appellee's obligation did not arise to the level of an insurer, it did owe a duty to exercise reasonable care under all the circumstances. Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966); DeSimone v. City of Philadelphia, 380 Pa. 137, 110 A.2d 431 (1955). What constitutes the exercise of reasonable care is a matter determined by the facts of each particular case.
In the present case, as earlier noted, the appellant alleged that the appellee was vicariously negligent through the acts and omissions of the lifeguard. Particularly, the appellant proffered as constituting negligence the lifeguard's failure to utilize the lifeguard perch and his diversion from attending solely to lifeguard duties. These alleged instances of negligence thus caused resuscitative efforts to be rendered belatedly and, finally, fruitlessly. We find that the evidence presented in support of these claims of negligent conduct suggest the satisfactory provision of a prima facie case. There is unequivocal evidence that James Ulichney was the sole lifeguard on duty and that during pertinent times his attention was diverted from the swimming pool while he assumed the additional responsibility of monitoring admissions to the pool area.*fn3 Whether this diversion from observing the activities confined to ...