 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schwabe v. Custer's Inn Associates12/12/2000
APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, The Honorable Gary L. Day, Judge presiding.
Submitted on Briefs: January 13, 2000
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 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. Mar
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|