Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Stephenson, Senior Justice

MISTY ANN HAYS PHILLIPS, EXECUTOR
  OF THE ESTATE OF RICHARD WILLIAM PHILLIPS,
  DECEASED
                                           OPINION BY
v. Record No. 980444     SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
                                        January 8, 1999
SOUTHEAST 4-H EDUCATIONAL CENTER, INC., ET AL.


             FROM THE CIRCUIT COURT OF SUSSEX COUNTY
                     Robert G. O'Hara, Judge

     The principal issue in this appeal is whether the trial

court erred in striking the plaintiff's evidence at the

conclusion of the plaintiff's case-in-chief.   We also determine

whether the trial court erred in excluding certain evidence

proffered by the plaintiff's expert witness.

                                I

     Misty Ann Hays Phillips, Executor of the Estate of Richard

William Phillips, deceased (the Plaintiff), filed an action

against Southeast 4-H Educational Center, Inc. (the Center),

Susan Morlino, and Nicole Gipson (collectively, the Defendants)

for the wrongful death of Richard William Phillips.    The

Plaintiff alleged that Richard's death by drowning was caused by

the Defendants' negligence.

     The case was tried to a jury, but, at the conclusion of the

Plaintiff's case-in-chief, the trial court struck the
Plaintiff's evidence and entered judgment for the Defendants.

We awarded the Plaintiff this appeal.

                                 II

     In reviewing the trial court's decision to strike the

Plaintiff's evidence, we will view the evidence, and all

reasonable inferences drawn therefrom, in the light most

favorable to the Plaintiff.   See Mullins v. Virginia

Lutheran Homes, 253 Va. 116, 119, 479 S.E.2d 530, 532-33

(1997).

     The Center operated a 25-yard swimming pool in Sussex

County.   Morlino was the pool's senior lifeguard and manager,

and Gipson was a lifeguard.   Both lifeguards had the required

certificates in lifesaving and cardiopulmonary resuscitation

(CPR).

     Richard was 32 years old.   He was about six feet four

inches tall and a strong swimmer.

     Morlino, who was called by the Plaintiff as an adverse

witness, testified that, on the day before Richard drowned, she

had observed him swim underwater the length of the pool and back

several times.   When Richard completed each lap, he came to the

surface of the water, took a breath of air, turned, and swam

another lap.   After several laps, Richard stopped swimming.

Before coming to the water's surface, however, he had held his




                                 2
breath and had lain on the bottom of the pool in the shallow end

for a brief period.

     The following day, May 30, 1993, Morlino and Gipson were on

duty as lifeguards.   Morlino again observed Richard, who was

accompanied by Richard Wayne Parkllan, swimming in the pool.

After about 30 minutes, Parkllan got out of the pool and sat on

the deck.    Richard, who was then the only person in the pool,

continued to swim.

     As he had done the previous day, Richard began to swim laps

underwater.   He continued to swim laps for 15 to 20 minutes

while Morlino watched.   After completing one of the laps,

Richard stood in the shallow end of the pool, which is three

feet deep, and then went back under the water.   As Richard sat

under the water, Morlino noticed bubbles coming to the surface.

     When the bubbles disappeared and Richard did not come to

the water's surface, Morlino became concerned.   Within

"moments," Morlino jumped into the pool to ascertain Richard's

condition.    With Parkllan's assistance, Morlino pulled Richard

out of the pool and onto the deck.    Gipson telephoned for

emergency response personnel.

     Richard was not breathing and had no pulse, so Morlino and

Parkllan alternated in administering CPR.   Approximately 10

minutes later, they were relieved by a rescue squad member.

While CPR was being administered, Richard vomited, but he


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remained unconscious.   The rescue squad took him to a hospital

where he was pronounced dead.   An autopsy revealed that the

cause of death was drowning.

     The Plaintiff called Gerald M. Dworkin as an expert

witness.   Dworkin was qualified as an expert in water safety and

as an emergency medical technician (EMT) with training in

defibrillation.   Dworkin testified that, in his opinion, the two

lifeguards breached the acceptable standard of care in failing

to sit in the elevated lifeguard chairs, to recognize signs of

passive drowning, and to effect a timely rescue.   Dworkin

further testified that it was his opinion that the Center's

management breached the acceptable standard of care in failing

to have site-specific training and to have a standard operating

procedure.

                                 III

     We first consider whether the trial court erred in

excluding a portion of Dworkin's testimony.   Dworkin would have

opined that, after a victim stops breathing, his heart continues

to beat for several minutes.    Dworkin would have opined further

that, if Richard had been removed from the water within 30

seconds of the onset of drowning, he would have had a heartbeat,

CPR would have been unnecessary, and artificial respiration

would have been successful.    The trial court excluded this




                                  4
testimony, concluding that this involved a medical opinion and

that Dworkin was not qualified to render such an opinion.

     Whether a proffered expert opinion should be excluded is a

matter that rests within the sound discretion of a trial court.

The court's decision to exclude such testimony will not be

reversed on appeal unless the record clearly establishes that

the expert was qualified to express the opinion.   Grubb v.

Hocker, 229 Va. 172, 176, 326 S.E.2d 698, 700 (1985).

     Although the record shows that Dworkin was an EMT and

experienced in CPR and water safety, we cannot say that the

record clearly establishes that he was qualified to opine that

Richard would have survived had he been removed from the water

within 30 seconds of the onset of drowning.   The opinion

requires technical knowledge in the field of medicine, and,

therefore, we cannot say that the trial court abused its

discretion in excluding this testimony.

                                IV

     We now consider the principal issue in this appeal; that

is, whether the trial court erred in striking the Plaintiff's

evidence.   Ordinarily, negligence and proximate cause are jury

issues.   They become questions of law, however, when reasonable

minds could not differ about the conclusions to be reached.

Poliquin v. Daniels, 254 Va. 51, 57, 486 S.E.2d 530, 534 (1997).




                                 5
     Generally, the owner of a swimming pool to which the

general public is invited for a fee

     must exercise ordinary care for the safety of his
     patrons. He must make reasonable provisions to guard
     against those accidents which common knowledge and
     experience teach are likely to befall those engaged in
     swimming and other aquatic sports for which he has
     provided facilities, but the owner is not an insurer
     of the safety of his patrons.

Blacka v. James, 205 Va. 646, 649, 139 S.E.2d 47, 50 (1964).

     Depending upon the circumstances involved, an owner of a

swimming facility may have a duty "to station qualified

lifeguards at the [facility] to supervise patrons and rescue

those in peril," and, "[i]n such case, the [facility] owner is

liable for the negligence of lifeguards in the performance of

their duties."   S & C Company v. Horne, 218 Va. 124, 128-29, 235

S.E.2d 456, 459 (1977).   A lifeguard's duty is twofold.   "First,

he has some duty to observe swimmers for signs of distress;

second, he has some duty at some point to attempt rescue of

those in distress."   Id. at 129, 235 S.E.2d at 459.   In the

performance of the second duty, a lifeguard must exercise the

care that an ordinarily cautious lifeguard would exercise under

similar circumstances.    Id.

     In the present case, Morlino, called by the Plaintiff as an

adverse witness, testified that she and Gipson were able to see

Richard from their positions on the pool's deck, that they were

watching Richard the entire time he was in the pool, and that


                                 6
they responded promptly when they realized that Richard was in

distress.   Morlino's testimony is uncontradicted; therefore, the

Plaintiff is bound by it.    See Retail Property Investors, Inc.

v. Skeens, 252 Va. 36, 41, 471 S.E.2d 181, 183 (1996).     The only

evidence in the present case to suggest that the Defendants were

negligent comes from the opinions of Dworkin.

     The Plaintiff's theory of recovery is that Morlino and

Gipson were negligent in not recognizing Richard's

unconsciousness sooner and that, if they had, Richard could have

been saved.   Dworkin testified that, when Richard was lying

motionless on the bottom of the pool and bubbles were coming to

the surface of the water, this "was a pretty good indication

that there was a problem."   Dworkin further testified that

lifeguards should be active in their surveillance by practicing

the "10/20 second rule."    According to Dworkin, this rule

requires a lifeguard to assess every situation for 10 seconds

before determining whether action is necessary and reassessing

that situation within 20 seconds.     He opined that, because the

lifeguards "observed the bubbles, observed the lack of movement,

and actually timed this for a minute's time before they . . .

effected the rescue," they breached the 10/20-second rule and,

therefore, were negligent.




                                  7
     Viewing, as we must, Dworkin's testimony in the light most

favorable to the Plaintiff, we conclude that the Defendants'

alleged negligence is a jury issue.

     But mere proof of an accident and negligence does not
     establish a cause of action. There must be in
     addition a causal connection between the negligence
     and the . . . death complained of. Evidence tending
     to show a causal connection must be sufficient to
     remove the case out of the realm of speculation and
     conjecture and into the realm of legitimate inference
     before submitting it to a jury for its determination.

Blacka, 205 Va. at 650, 139 S.E.2d at 50.   Thus, in the present

case, the Defendants' alleged negligence must have a causal

connection with Richard's drowning, and, in the absence of a

showing that the Defendants' negligence was the proximate cause

of the death, there can be no recovery.

     We have carefully examined the record to find evidence

tending to show that the Defendants' alleged negligence

proximately caused Richard's death, and we find none.   At oral

argument, Plaintiff's counsel was asked to pinpoint in the

record evidence of causation.   Counsel directed this Court to a

portion of Dworkin's testimony wherein he testified that, if

Richard had had a pulse when he was removed from the water and

artificial respiration had been timely undertaken, then "there

[was] a good chance that [he was] going to recover."    (Emphasis

added.)   We can only speculate, however, when Richard's pulse

stopped, and we do not think that an undefined "good chance" of



                                 8
recovery removes the issue of causation from the realm of

speculation and conjecture.   Therefore, we hold that the trial

court did not err in striking the Plaintiff's evidence.

                                 V

     Accordingly, the trial court's judgment will be affirmed.

                                                          Affirmed.




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