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HANDLEY v. CITY OF HOPE

February 1, 1956

WILLIAM BERTIE HANDLEY, ADMINISTRATOR, PLAINTIFF,
v.
THE CITY OF HOPE, ARKANSAS, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

The original complaint in the instant case was filed on April 19, 1955, by William Bertie Handley and his wife, as parents and next of kin of Margaret Yvonne Handley, deceased, and by William Bertie Handley as the administrator of the estate of the deceased, against the defendant, the City of Hope, Arkansas, a municipal corporation.

Plaintiffs alleged that the defendant was conducting and operating a swimming pool in the City of Hope, Arkansas; that the City derived income from said enterprise, and the same was being operated in a proprietary or corporation capacity; that the pool was operated exclusively for the use and benefit of the Caucasian race; that the patrons thereof were not limited to residents of the City of Hope, but that all persons able and capable of paying an admission fee were admitted.

Plaintiffs further alleged that on June 23, 1954, the deceased, Margaret Yvonne Handley, a child 11 years of age, was accepted as a customer of the said swimming pool; that on said date the child was drowned as a result of the negligence of the defendant in failing to keep adequate lifeguards on duty; and that the lifeguards were negligent in failing to keep a lookout and in failing to rescue the deceased after they were notified that she had inadvertently stepped into water over her head. Other specific allegations of negligence were made in the complaint, and plaintiffs sought damages as a result of the death of Margaret Yvonne Handley.

On June 6, 1955, the defendant filed a motion for a more definite statement, and on June 15, 1955, the Court overruled defendant's motion. However, on said date the Court entered an order dismissing the complaint as to the plaintiffs, William Bertie Handley and wife, individually, leaving William Bertie Handley as administrator the sole party plaintiff. This order was entered since, under the Arkansas law, when a personal representative has been appointed he is the only person who may maintain a suit for damages for wrongful death, and he is entitled to recover all damages resulting from the wrongful death, both for the benefit of the estate and the next of kin. Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564; Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S.W.2d 894.

The defendant filed its answer on June 20, 1955, in which it denied the allegations of plaintiff's complaint and pleaded contributory negligence on the part of the deceased and her parents as a defense to plaintiff's claim.

On September 3, 1955, the plaintiff filed certain requests for admissions, and on September 10, 1955, the defendant responded to said requests for admissions. However, defendant's answer to the requests for admissions was not sworn to, and as a matter of law the requests for admissions stand admitted. Sieb's Hatcheries, Inc., v. Lindley, D.C.W.D.Ark., 13 F.R.D. 113; Heuer v. Basin Park Hotel and Resort, D.C.W.D.Ark., 114 F. Supp. 604. The requests for admissions, which must be deemed as admitted, establish that the defendant operated a swimming pool in the City of Hope; that admissions were charged; that all members of the Caucasian race were admitted to said pool and that it was being operated exclusively for the use and benefit of the Caucasian race; that the residents of the City of Hope are not exclusively members of the Caucasian race; that the deceased was accepted as a customer on June 23, 1954; that the lifeguards on duty, who were agents of the defendant, knew that the deceased could not swim; that the pool has deep water which is over the head of the deceased; that the deceased died as a result of drowning; that she suffered great pain and suffering; that the cost of her funeral was $750; and that her parents suffered great pain, anguish, and mental suffering as a result of her drowning.

On November 2, 1955, plaintiff filed an amendment to his complaint alleging in the alternative that the defendant entered into a contract with the deceased for her to swim in the pool; that there was an implied contract that the pool was a safe place in which to swim; and that the defendant breached its covenant by failing to take proper care of the deceased.

On November 7, 1955, the defendant filed an answer to plaintiff's amended complaint, denying each and every material allegation thereof.

On November 25, 1955, plaintiff filed a second amendment to his complaint which merely sets out in detail the specific acts and omissions which plaintiff alleges amount to negligence on the part of the defendant and its agents.

In the meantime, the Court had requested the parties to file trial briefs, and not having received said briefs the Court on November 28, 1955, entered an order requiring the parties to submit trial briefs.

On the same date, November 28, defendant filed its answer to plaintiff's second amendment to the complaint, and denied the material allegations thereof. The case was set for trial on December 8, 1955, and prior to that date the Court received and considered the briefs of the parties, and also made an independent search of the applicable authorities. After considering the briefs and other authorities the Court decided that a pretrial hearing should be had before the case proceeded to trial on its merits. Such a hearing was held on December 8, 1955, and the Court and counsel discussed the legal questions involved in the action.

The Court was of the opinion that the fundamental question involved was whether or not the operation of the swimming pool constituted a governmental or a proprietary function, and after a full discussion of the questions involved the Court continued the case, with leave to plaintiff to file an amendment to his complaint and leave to defendant to file a motion to dismiss or motion for summary judgment as it might desire. On the same date, December 8, 1955, the deposition of Mrs. Foy Hammonds, manager of the swimming pool, was filed.

On December 10, 1955, plaintiff filed his third amendment to the complaint, and alleged in substance that the swimming pool constituted an attractive nuisance for which the defendant would be liable. On December 14, 1955, defendant filed its answer to plaintiff's third amendment.

On December 19, 1955, the defendant filed a motion for summary judgment, attaching thereto a certified copy of an ordinance of the City of Hope, Arkansas, and an affidavit of Charles Reynerson, treasurer of the City of Hope.

On December 19, 1955, the Court entered an order allowing plaintiff until January 31, 1956, to serve and to file a response and supporting documents in opposition to defendant's motion for summary judgment.

No response has been filed by the plaintiff, and the motion for summary judgment is now ready for final disposition. The question presented here is whether there is any genuine issue as to any material fact, and if not, whether the defendant is entitled to a judgment as a matter of law. Rule 56, Fed.Rules Civ.Proc. ...


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