 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schwabe v. Custer's Inn Associates12/12/2000
rt association.
72 The undisputed facts are that although Custer's Inn did have a "No Lifeguard on Duty" sign as required by subsection (a), it did not have a CPR-trained person on staff and accessible to the pool as required by (b). Thus, under the clear dictate of the statute, Custer's Inn was required to have a lifeguard on duty. The Court dismisses this point in a footnote stating that the Estate did not argue on appeal that there was a statutory duty to provide a lifeguard. The Estate did however raise the statute in its complaint, in its motion for summary judgment and, on appeal, cited the statute and argued that it is a criminal violation to operate a swimming pool in violation of the statute.
73 The statute requires that there be a lifeguard unless (a) there is a "No Lifeguard on Duty" sign and (b) there is CPR-trained person on the staff. In arguing that, in violation of the statute, there was no CPR-trained staff accessible to the pool, the Estate, by necessary implication argued that a lifeguard was required. If one argues, as the Estate did, that the provisions of § 50-53-107, MCA, have been violated, the only logical conclusion that can be drawn from that argument is that the entity in question failed to have either a sign and/or a CPR-trained person and had no lifeguard on duty. In other words, failure to have CPR-trained staff in itself does not constitute a violation. In addition to not having CPR-trained staff accessible, you must also fail to have a lifeguard on duty. The violation is the failure to provide the lifeguard. Obviously if there had been a lifeguard on duty, as required by law, the lifeguard would have been present to either prevent Mark from getting into distress or to render CPR assistance in a timely fashion.
74 Consistently with the Johnson case, I would hold that there are genuine issues of fact as to the cause of this drowning and that the District Court erred in granting summary judgment.
W. WILLIAM LEAPHART
Justice Terry N. Trieweiler and Justice William E. Hunt, Sr., join in the foregoing dissenting opinion.
TERRY N. TRIEWEILER
WILLIAM E. HUNT, SR.
75 I join Justice Leaphart's dissent, but add the following observation.
76 Section 50-53-107, MCA, requires that when a lifeguard is not provided at a privately owned public swimming pool, a person trained in cardiopulmonary resuscitation be on the premises and "accessible to the pool." A common sense interpretation of this requirement would mean that the person trained in CPR be in a position to administer CPR at a point in time when it would have some lifesaving and beneficial effect. The fact that Schwabe drowned in the unattended pool and was beyond resuscitation by the time he was found was a direct result of the Defendants' failure to comply with § 50-53-107(2)(b), MCA, by having someone trained in CPR accessible to the pool at a point in time when that person's assistance would make a difference.
77 I agree with Justice Leaphart that the majority opinion allows the Defendants' failure to comply with § 50-53-107, MCA, to insulate it from liability. Schwabe's family cannot prove why he drowned, nor that he could have been resuscitated because there was neither anyone there to observe him nor anyone accessible who could administer CPR in a timely fashion. No reasonable interpretation of the law would allow a defendant to benefit in this manner from its violation of the law.
78 For these reasons, I join in Justice Leaphart's opinion and dissent from the majority opinion.
TERRY N. TRIEWEILER
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.
|
|