KRAVITCH, Circuit Judge.
In this wrongful death action the jury returned a verdict for the appellee in the amount of $500,000. Appellants claim errors below including instructions to the jury, denial of a motion for directed verdict and failure to reverse as excessive the jury's award. We find these claims to be without merit; therefore, we affirm.
On April 10, 1973 the appellant Araserv and its subsidiary entered into a contract with the state of Alabama for the operation of a recreation facility at Gulf Shores, Alabama. The contract expressly provided that it was entered into for the benefit of the public. Specifically, the contract required that Araserv operate a pavilion at the Gulf Shores beach area. Pursuant to § 16 of the contract, the appellants were obligated to provide two lifeguards for the pavilion area and to furnish all necessary life-saving equipment. Moreover, the appellants were required to take all proper safeguards for the prevention of injuries or damage to the public. The contract was scheduled to terminate five years from the opening of the Gulf Shores Park in 1974, although the precise date for the opening
May 12, 1974 was also the day on which Anthony Baroco, appellee's decedent, took his wife and family to the Gulf Shores Beach. Upon their arrival at the beach, Baroco noticed two teenagers at play in the water. Later, one of the teenagers approached Mr. Baroco and informed him that her playmate was in danger and asked for his assistance. Although the water was choppy and the waves were high, Baroco, after instructing the teenager to summon the lifeguard, went to the young girl's aid. As soon as the lifeguard was informed of the plight of the teenaged swimmer and the rescue attempt of Mr. Baroco, he also attempted a rescue. Although the lifeguard was able to swim the nearly 150 yards to the pair, he was unable to save either: the teenager already appeared dead and Baroco had panicked preventing rescue. Because the rescue attempts failed, Baroco drowned.
Appellee filed a wrongful death action in a two-count complaint charging tortious breach of contract and negligence. At trial, this claim was submitted to the jury, which returned a verdict against the appellants, awarding appellee $500,000.
The appellants urge several grounds for reversal: inter alia
Appellants first argue that the court erred in submitting the tortious breach of contract claim to the jury. Appellants base their argument on the punitive nature of Alabama's wrongful death statute: damages recoverable are punitive rather than compensatory, and because punitive damages are not recoverable in contract actions in Alabama, then a wrongful death action may not be maintained in a breach of contract claim. As the appellants contend, the Supreme Court of Alabama has specifically held that a contract claim cannot support a wrongful death action. Clinton Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973). The appellants are correct as far as the argument goes. The appellants have failed to focus, however, on the tortious nature of the instant breach of contract action. Here, the appellee did not claim that the death occurred as a result of a breach of contract, but rather the death resulted from the nonperformance of a duty established by the contract. In Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1929), the Supreme Court of Alabama expressly held that a wrongful death action may be maintained for such tortious breach of contract. In the instant case, as provided in the contract, appellant Araserv owed a duty to patrons of the beach as third party beneficiaries of the contract to provide two lifeguards and life-saving equipment. The appellants failed to observe this duty and testimony established that the failure proximately caused the death of Baroco.
Appellants next contend that the court erred in failing to give proffered instructions on appellants' theory of the case. For the purpose of analysis these instructions
Relevant to the negligence claim, the court instructed the jury as to the standard of care owed to invitees, which charge was submitted by the appellee. In contrast, the appellants offered the following instruction involving the duty owed to a licensee:
The court refused to submit this charge to the jury on the ground that the appellee's decedent was an invitee as a matter of law. There being no authority in Alabama as to the duty owed to a person in the position of appellee's decedent, the court correctly applied the relevant common law as established in other jurisdictions. See Nordgren v. Strong, 110 Conn. 593, 149 A.2d 201 (1930).
The other requested instructions involved Alabama statutory provisions, particularly §§ 281
There being no cases construing these statutes, we must determine what an Alabama court would do in such a situation.
276 Ala. at 494, 164 So.2d at 490. Because the act at issue was intended to apply to persons who are not connected with the landowner's business and because the appellee's decedent was in the Gulf Shores pavilion area in connection with the business of the appellants as provided by the contract with Alabama, we hold that the trial court was correct in determining that these sections would not be deemed applicable by an Alabama court.
Appellants also contend that the court erred in instructing the jury on the "sudden emergency" doctrine.
Appellants further contend that the court erred in denying their motion for directed verdict and motion for a judgment notwithstanding the verdict. Specifically, the appellants claim that the appellee's decedent was contributorily negligent as a matter of law. Admittedly, when a person voluntarily places himself in an obvious position of peril, he is guilty of contributory negligence. Louisville & N.R. Co. v. Holland, 164 Ala. 73, 81, 51 So. 365 (1909); Alabama Co. v. Sanders, 202 Ala. 295, 80 So. 360 (1918). The testimony at trial established that Mr. Baroco considered it dangerous to enter the Gulf under the conditions that prevailed on the day in question. It was also established, however, that Mr. Baroco was an experienced Gulf swimmer. Competent testimony further showed that, given the conditions of the Gulf that day, no one should have been in the water for swimming purposes. Moreover, the water
Finally, the appellants contend that the verdict was excessive and that therefore the court erred in denying their motion for judgment notwithstanding the verdict and their motion for a new trial. This question must be answered in the context of the statutory language and purpose of Alabama's wrongful death action. The Alabama courts have construed the state's wrongful death act, Ala.Code Ann., Title 7, § 123 to provide that amount of damages rests "largely in the discretion of the jury." Airheart v. Green, 267 Ala. 689, 104 So.2d 687, 690 (1973). This discretion is not unbridled, however, but rather a "sound and honest discretion." Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298, 305 (1936). Moreover, because the statute is punitive, in determining the amount of the award "[the jury could give] due regard ... to the enormity or not of the wrong and to the necessity of preventing similar wrongs." Id. Thus, the purpose of the award is not only punitive but also deterrent. Therefore, not only must the degree of appellants' culpability be gauged but also the necessity of preventing similar occurrences in the future.
It is acknowledged that the dangers inherent in a beach operation are great and that the standards for comporting with this risk are commensurably great. The appellants, in inducing the State of Alabama to grant the concession contract, represented that they gave their employees extensive training and relied upon the most modern equipment in the industry. Moreover, testimony established that to properly safeguard a Gulf beach the size of the one at issue a minimum of two lifeguards with rescue equipment is required. Here, the evidence is undisputed that the defendants had but one lifeguard and no equipment. Although as evidence of their responsibility the appellants had represented to Alabama that a Red Cross life-saving certificate would be a prerequisite for their lifeguards, the one lifeguard hired did not possess such a certificate. Therefore, not only did appellants violate their own standards but they violated all reasonable standards of care as established by the contract and common law. Moreover, the jury could have been motivated by a desire to prevent future deaths caused by commercial concerns which fail to recognize and uphold the duties and responsibilities provided for by contract with the state in similar circumstances. Furthermore, the court thoroughly and properly instructed the jury as to the applicable standards and cautioned it against bias.
The trial court did not disturb the jury's award. Alabama authority accords great weight to a verdict acquiesced in by the judge, who was present throughout the trial and was therefore able to determine the excessiveness of the award, General Telephone Company of Alabama v. Cornish, 291 Ala. 293, 280 So.2d 541, 545 (1973); in such circumstance the award will be disturbed only if it is plainly and clearly indicated that the verdict was the product of prejudice, passion, partiality, bias or mistake. See Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958). We are unable to hold that verdict was clearly excessive when judged by this standard.
COLEMAN, Chief Judge, dissenting.
Since this is a diversity case and, in the ultimate, does nothing more than decide the victor in a damage suit, a dissent, under Erie, is of no jurisprudential importance. Probably the better course to pursue would
By order of the Alabama Supreme Court dated June 4, 1980, the court declined to answer the certified questions.