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Glaubius v. YMCA of Norfolk9/23/2003
stion again becomes whether Glaubius presented evidence from which a jury could conclude that the YMCA violated this regulation.
Glaubius presented evidence that Utterback informed the bystander who attempted CPR that he did not know where the breathing mask was located. Glaubius presented evidence that the bystander then attempted to locate the breathing mask by searching in the pool office, but was unable to locate a breathing mask anywhere. Although the YMCA presented evidence that there was actually a breathing mask located on the lifeguard chair, we conclude that there was enough evidence to create a question for the jury on this issue and that the court erred in excluding this regulation.
5. Causation
We note that the YMCA argues on appeal that the evidence indicates that Keith died of sudden cardiac arrest, not of drowning. The record indicates, however, that the issue of causation was a contested issue at trial, that both parties presented substantial evidence and testimony concerning the cause of Keith's death, and that there was clearly a factual question for the jury concerning the cause of death. For example, a neurologist who treated Keith in the emergency room testified that Keith suffered ischemic hypoxic encephalopathy from being under the water for several minutes and from having water in his lungs and also testified that Keith was injured as a result of his brain's being deprived of oxygen for a period of time. No special verdict forms were used to indicate that the jury specifically found in the YMCA's favor as a result of a conclusion that the cause of death was cardiac arrest. As such, the above errors concerning the evidence on the issue of negligence require that the judgment be reversed and the matter remanded for a new trial.
V. CONCLUSION
We find that the court erred in excluding relevant evidence concerning Department of Health regulations and their possible violation. As such, the judgment is reversed and the matter remanded for a new trial.
Reversed and remanded for a new trial.
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