Before GIBBONS and HUNTER, Circuit Judges, and POLLAK,*fn* District Judge.
JAMES HUNTER, III, Circuit Judge.
Defendants in this personal injury action have appealed from a jury verdict awarding plaintiff, Richard Utesch, $6.8 million dollars.*fn1 Because of a number of prejudicial errors in the trial judge's instructions to the jury, we will reverse the judgment of the district court and remand the case to the district court for a new trial consistent with this opinion.
On January 3, 1969, Holiday Inns, Inc. ("Holiday Inns") entered into a license agreement with Flamboyant Investment Co., Ltd. ("Flamboyant") for the operation of a Holiday Inn at St. Thomas, U.S. Virgin Islands.American Motor Inns, Flamboyant's parent company, engaged the architectural firm of William W. Bond & Associates ("Bond") to design the Frenchmen's Reef Holiday Inn Motel. Flamboyant submitted an application for a building permit to the Department of Public Works of the Virgin Islands, and a permit was issued on December 28, 1971.
Frenchmen's Reef Holiday Inn was completed and opened in 1972. On July 22, 1974, Flamboyant leased the Holiday Inn to Atlas Motor Inns, Inc. ("Atlas") to operate the motel. Atlas operated the motel from that time until midnight on December 31, 1978.
On October 18, 1977, the U.S. Navy Aircraft Carrier Nimitz arrived at St. Thomas. Plaintiff, Richard Utesch, was among a number of sailors who visited the island. Late in the day, Mr. Utesch met Douglas Steffins and several other shipmates who advised plaintiff that they had rented rooms at the Frenchmen's Reef Holiday Inn Motel. Mr. Utesch accompanied Mr. Steffins and his friends to the motel. Mr. Utesch had been drinking alcoholic beverages during the day and continued to do so at the motel.
A short time after their arrival at the motel, Mr. Utesch and Mr. Steffins changed into their swimwear and proceeded to the motel swimming pool. Mr. Utesch and Mr. Steffins testified that they dived into the pool using the diving board. Mr. Utesch testified that on his first dive, he hit the bottom of the pool with his hands. On his second or third dive he felt a blinding flash. Appendix at 42. It was conceded that plaintiff suffered a spinal fracture that resulted in partial quadriplegia. Plaintiff was diagnosed as intoxicated when he reached the St. Thomas Hospital.
Plaintiff brought suit against Holiday Inns, Flamboyant, as owner of the motel, Atlas, as operator of the motel, and the architect of the motel. The case against Holiday Inns, Flamboyant and Atlas was tried in May 1981 to a jury; before trial, plaintiff had dismissed his action against the architectural firm, William W. Bond & Associates.
Plaintiff's case was predicated largely upon the testimony of two expert witnesses, Dr. Alexander Gabrielsen and Frank D. Fowler. Dr. Gabrielsen testified, among other things, that the pool in question was too shallow for use with a diving board; had improper lighting for diving; had no supervisory lifeguard on duty; had no visual cues to assist a diver; and had water of insufficient clarity to permit diving. Appendix at 157-159. Mr. Fowler testified that the pool was not suitable for use with any diving board. Appendix at 264. Even though the defendants' witnesses testified that the pool and diving board met all design standards in effect at the time of the incident, plaintiff's experts concluded that since they knew of no spinal injury cases occurring in swimming pools which met N.C.A.A./A.A.U. standards for competitive diving pools, the pool should have met the standards for competitive diving pools. Appendix at 170, 195-96.
Plaintiff also presented evidence that Holiday Inns had conducted inspections of the Frenchmen's Reef Holiday Inn, operated by Atlas, and that it had issued certain directives regarding swimming pools and diving boards. Evidence was presented that the as-built plans of the swimming pool had been reviewed by Holiday Inns. Appendix at 16.
The jury valued plaintiff's injury at $8,000,000, but also found that the plaintiff contributed to his own injury to the extent of 15%. The court then apportioned the verdict among the defendants and reduced the verdict to $6.8 million under the comparative negligence provisions of the Code of the Virgin Islands. Subsequently, the court awarded plaintiff attorney's fees and costs, and all of the defendants moved for judgment notwithstanding the verdict and/or a new trial, which motions were denied by the trial court.
On June 11, 1982 defendants Atlas and Holiday Inns moved this Court for the entry of an Order dismissing this appeal as to them on the ground that they had reached a settlement agreement with appellee Utesch. The motion was ...