Charles E. Evans, Sikov & Love, Pittsburgh, Pa., for appellant.

C. S. Fossee, Munovich, Reale & Fossee, Pittsburgh, Pa., for appellee.

Before ALDISERT and SLOVITER, Circuit Judges, and HANNUM, District Judge.*

HANNUM, District Judge.

This is an appeal from a ruling by the district court in which a verdict was directed in favor of the appellee, Seven Springs Farm, Inc., (hereinafter "Seven Springs"). The suit which was dismissed as a consequence of this ruling was instituted as a wrongful death and survival action in diversity under Pennsylvania law and arose from the passive drowning of the decedent, John E. Onufer. The cause of action accrued when the decedent, a forty-six (46) year old male and business invitee of Seven Springs, entered the appellee's indoor pool and began swimming laps. Shortly thereafter several persons observed the decedent lying motionless on the bottom of the pool. Resuscitative efforts proved fruitless and the decedent subsequently expired. A negligence theory of liability was asserted for reasons that allegedly only one (1) lifeguard was attending the pool area, that he was not utilizing the lifeguard perch which afforded the best vantage point for observation, that his attention was diverted by the additional responsibility of monitoring pool admissions and that resuscitative efforts were belatedly begun thus rendering them useless.1 The verdict was directed at the conclusion of testimony. The sole issue thus presented is whether the district court erred by directing a verdict in favor of the appellee when the evidence presented at trial is viewed in a light most favorable to the appellant. Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171 (3d Cir. 1976). For the reasons that follow, we conclude that the district court's ruling constituted reversible error.

In order for the appellant to have ultimately secured the relief requested at the trial level, he would have had to establish to the jury by a preponderance of the evidence that Seven Springs owed a duty of care to the decedent, that there had been a breach of that duty through negligent acts or omissions and that the negligence was the proximate cause of the decedent's demise. See, e. g., Mahler v. United States, 196 F. Supp. 362 (W.D.Pa.1961), aff'd, 306 F.2d 713 (3d Cir. 1962). Before the case was submitted to the jury, however, the district court undertook a preliminary scrutinization of the evidence upon the filing of the appellee's motion for a directed verdict pursuant to F.R.Civ.P. 50(a). Such a scrutinization was to be guided not by analyzing "whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party." Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978). "(I)f the evidence is of such a character that reasonable men, in the impartial exercise of their judgment may reach different conclusions, the case should be submitted to the jury." Silverii v. Kramer, 314 F.2d 407, 409 (3d Cir. 1963). See also Patzig v. O'Neil, supra.

The district court in its preliminary scrutinization apparently concluded that the appellant had failed to present evidence establishing a causal connection between the alleged negligence of the lifeguard and the death of the decedent. A colloquy between the district court and counsel occurred at the close of testimony in a portion of which it was stated:

So even assuming that the lifeguards were negligent, and assuming that the lifeguards should have been looking, or sitting in the chair, there is no evidence at all to show in my view that the man would have been saved under these circumstances.

There is nothing to prove that even assuming he had been pulled out within a reasonable time that he would have been saved.

Because of this, we can't allow the lawyers to speculate, surmise, and conjecture. You have to have evidence to go on.

Under the circumstances, we have entered a verdict in favor of the defendant because of that failure of proof, as I view it, on the part of the plaintiff.

Notes of Testimony, p. 610. (Emphasis added). While assuming the existence of negligence, the district court applied a type of reverse "but-for" test-even had the lifeguard's attention been focused solely upon the swimming pool, there was no evidence presented to suggest that the decedent would have been observed in his passive struggle and, indeed, would have survived. In this regard, the district court relied upon certain testimony, to the exclusion of other evidence, that the decedent had in the past suffered from epileptic and psychomotor seizures which may have caused the drowning and that the passive nature of the drowning militated against observation by the lifeguard.2

Our review of the district court's ruling will be conducted by analyzing the evidence adduced at trial and by applying it to the elements of proof necessarily made out to establish a negligence claim. Of course, the evidence will be viewed in a light most favorable to the appellant in accordance with the applicable standard. Fireman's Fund Insurance Co. v. Videfreeze Corp., supra.

There is sufficient evidence of record to suggest that the decedent enjoyed a status of a business invitee while on appellee's premises. Accordingly, although the appellee's obligation did not arise to the level of an insurer, it did owe a duty to exercise reasonable care under all the circumstances. Zeman v. Borough of Cannonsburg, 423 Pa. 450, 223 A.2d 728 (1966); DeSimone v. City of Philadelphia, 380 Pa. 137, 110 A.2d 431 (1955). What constitutes the exercise of reasonable care is a matter determined by the facts of each particular case.

In the present case, as earlier noted, the appellant alleged that the appellee was vicariously negligent through the acts and omissions of the lifeguard. Particularly, the appellant proffered as constituting negligence the lifeguard's failure to utilize the lifeguard perch and his diversion from attending solely to lifeguard duties. These alleged instances of negligence thus caused resuscitative efforts to be rendered belatedly and, finally, fruitlessly. We find that the evidence presented in support of these claims of negligent conduct suggest the satisfactory provision of a prima facie case. There is unequivocal evidence that James Ulichney was the sole lifeguard on duty and that during pertinent times his attention was diverted from the swimming pool while he assumed the additional responsibility of monitoring admissions to the pool area.3 Whether this diversion from observing the activities confined to the swimming pool constituted a negligent act or omission is a matter within the province of the jury. Cf. Zeman v. Borough of Cannonsburg, supra (question for jury whether lifeguard's tolerance of rowdyism constituted negligence).

The inquiry most significant to this appeal and the area in which the district court apparently based its ruling pertains to the issue of causation. In this regard, we must evaluate whether the evidence adduced at trial favoring the appellant was sufficient to warrant submitting the case to the jury. Specifically, a conclusion must be reached whether the jury could have properly found for the appellant when the evidence was viewed in a light most favorable to him. Patzig v. O'Neil, supra.

During oral argument at the close of testimony, the district court emphasized two areas in which the appellant's evidence failed to establish a causal connection between the lifeguard's diversion from the swimming pool and the decedent's passive drowning. The district court perceived a complete lack of evidence concerning whether the decedent would have been observed in his passive struggle had the lifeguard not been diverted by his other duties and whether even if the decedent had been observed whether he would have survived. The case was thus withdrawn from the jury in order to avoid, in the district court's view, a verdict based on speculation and conjecture.4

The appellant introduced evidence during the course of the trial with respect to the lifeguard's additional responsibility of monitoring admissions to the pool area and his failure to utilize the elevated perch situated at poolside. In essence, the evidence was offered to establish that the lifeguard's attention was completely diverted and distracted from the swimming pool. The appellee, in his argument and brief presented before this court, has asserted that even if the lifeguard had utilized the perch and focused his attention solely upon the swimming pool that movement of the water created the impression that the decedent was still moving and thus that no conclusion of negligence applicable to the lifeguard could have been reasonably maintained.5 We conclude that there was sufficient evidence, and reasonable inference derived therefrom, for a jury to properly conclude that the lifeguard was negligent in his observation of the swimming pool and that the resultant failure to notice the decedent may have been a substantial factor causing the latter's demise. Implicit in this conclusion is the recognition that an entirely reasonable inference may be drawn that an attentive lifeguard presiding over a relatively small swimming pool area should have noticed the decedent's passive struggle. See Denneny v. Siegel, 407 F.2d 433 (3d Cir. 1969).6

Likewise, we conclude that there was sufficient evidence of record by which the jury could have properly found that the decedent may have survived but for the lifeguard's negligent observation of the swimming pool and belated resuscitative efforts. The district court balked at submitting the case to the jury because it perceived a lack of evidence concerning when the decedent became disabled in the water and when he subsequently expired. Yet the record reveals the testimony of Dr. Cyril H. Wecht, a forensic pathologist who testified on behalf of the appellant, and Dr. Jerome H. Aarons, who testified on behalf of the appellee, which provide sufficient evidence of the fact that the decedent may have died from the drowning and not another cause7 and that his life may have been salvaged had he been earlier noticed in his struggle and afforded resuscitative relief. Both physicians suggested that the decedent's life could have possibly been saved had he been withdrawn from the pool in a timely manner and had resuscitative efforts been immediately begun.8

The content and focus of our ruling that a verdict was improperly directed in this case neither emanates from an evaluation of the credibility of witnesses nor the merits of the evidence adduced at trial but rather is merely a finding that the resolution of the issues presented was a matter within the comprehension and province of the jury. Whether the decedent would have been noticed in his passive struggle and whether he would have been salvaged upon the timely implementation of resuscitative efforts are questions that may be decided at trial in favor of either party and still be supported by credible evidence. See generally Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).9 Because the evidence must be viewed in a light most favorable to the appellant, our sole recourse is to reverse the district court's order directing a verdict in favor of the appellee and remand the case for new trial on the merits.

The judgment of the district court will be reversed and the case remanded for proceedings in accordance with the foregoing.