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Glaubius v. YMCA of Norfolk9/23/2003
(not designated for permanent publication)
I. INTRODUCTION
Ina Glaubius, the personal representative of the estate of A. Keith Glaubius, appeals from a jury verdict in favor of the YMCA of Norfolk (YMCA) in a wrongful death action arising out of the death of A. Keith Glaubius (Keith) in the YMCA swimming pool. On appeal, Glaubius has asserted that the district court erred, inter alia, in not allowing into evidence certain administrative regulations concerning swimming pools. Because we find that the regulations were wrongly excluded from the evidence, we reverse, and remand for a new trial.
II. BACKGROUND
The events which give rise to this case occurred on the evening of September 4, 1998, at the YMCA in Norfolk, Nebraska. On that evening, Keith, who was 59 years old at the time, was swimming in the YMCA pool. The YMCA had one lifeguard on duty, Gerald Utterback, who was 19 years old.
Utterback was advised by another swimmer that there appeared to be a person at the bottom of the northwest corner of the pool. Utterback proceeded to that location, where he found Keith at the bottom of the pool. There was conflicting evidence presented about whether Utterback took his "rescue tube" flotation device with him at this time. Eventually, Utterback, with the assistance of some bystanders, was able to remove Keith from the pool.
Apparently because of fatigue, Utterback was unable to perform cardiopulmonary resuscitation (CPR). A bystander attempted to perform CPR, but stopped when "blood and pink foam" began to come from Keith's mouth. The evidence indicates that nobody was able to locate a "breathing face shield or mask" used to perform CPR safely on victims who are aspirating blood. Utterback indicated to the bystander who was attempting CPR that he did not know where the mask was, and the bystander was unable to locate one herself despite searching in the pool office. Although paramedics were eventually able to restore Keith's heart and lung functions, brain activity was not restored, and Keith died on September 14, 1998.
At trial, Glaubius argued that Keith drowned as a result of the negligence of the YMCA. The YMCA denied negligence and argued that Keith actually died as a result of sudden cardiac arrest, not drowning. Glaubius attempted to introduce administrative regulations relating to swimming pools to support Glaubius' assertions, inter alia, that the YMCA should have had at least two lifeguards on duty, that Utterback was required to keep his rescue tube within arm's reach at all times, and that the YMCA was required to keep a first aid kit containing a breathing mask ready for use. The court refused to admit the proffered regulations into evidence on more than one occasion.
The case was submitted to a jury on July 25, 2001. The jury returned a verdict in favor of the YMCA. On August 17, the court entered a judgment in favor of the YMCA, in accordance with the jury's verdict. This timely appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Glaubius has assigned four errors. One of these is that the court erred in overruling Glaubius' offer of administrative regulations into evidence. Because our resolution of this assignment of error necessitates that we reverse, and remand for a new trial, we will not further discuss Glaubius' other assigned errors.
IV. ANALYSIS
Glaubius assigns as error the court's refusal to admit into evidence certified copies of portions of Nebraska's Department of Health (now Department of Health and Human Services Regulation and Licensure) regulations relating to swimming pools. Specifically, Glaubius sought to introduce re
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