Abee v. Stone Mountain Memorial Ass'n

• Decision Date: 17 November 1983
• Docket Number: No. 66725,66725
• Citation: Abee v. Stone Mountain Memorial Ass'n, 312 S.E.2d 142, 169 Ga.App. 167 (Ga. App. 1983)
• Parties: ABEE v. STONE MOUNTAIN MEMORIAL ASSOCIATION et al.
• Court: Georgia Court of Appeals

Page 142

312 S.E.2d 142

169 Ga.App. 167

ABEE v.STONE MOUNTAIN MEMORIAL ASSOCIATION et al.

No. 66725.

Court of Appeals of Georgia.

Nov. 17, 1983.

Rehearing Denied Dec. 1, 1983.

Certiorari Granted Jan. 19, 1984.

W. Fred Orr II, James G. Edwards II, Decatur, for appellant.

George H. Connell, Jr., Mark A. Smith III, M.T. Simmons, Jr., Michael J. Bowers, Atty. Gen., Marion O. Gordon, J. Robert Coleman, Sr. Asst. Attys.Gen., Daniel M. Formby, Staff Asst. Atty. Gen., Royce F. Morris, Asst. Attys.Gen., Atlanta, for appellees.

SHULMAN, Chief Judge.

Plaintiff/appellant, a minor, suffered injuries while riding the "Corkscrew," a water slide amusement ride at Stone Mountain Park.He brought this suit to recover damages for the injuries he sustained, and his father was appointed to serve as his guardian ad litem.This appeal was filed from the grant of summary judgment to defendants/appelleesStone Mountain Memorial Association("Stone Mountain") and Mark Smith Construction Company, Inc.("Smith Construction").

In his complaint, appellant alleged that Stone Mountain had negligently operated, managed, and supervised the water slide and had negligently designed, manufactured, assembled, and constructed the slide; that the slide was defective and not reasonably suited for the use intended; and that the continued use and operation of the slide by Stone Mountain constituted the maintenance of a public nuisance.It was alleged that Smith Construction was guilty of negligence in the design, manufacture, assembly, and construction of the slide, and was strictly liable under OCGA § 51-1-11.Each defendant/appellee denied appellant's allegations and set forth various defenses to appellant's action.

On appeal, appellant maintains that summary judgment was erroneously granted appellees because there remained genuine issues of material fact concerning Stone Mountain's alleged negligence in its operation, maintenance, and supervision of the slide; its alleged negligence in the design and installation of the slide's water pump; Smith Construction's alleged negligence in the assembly and construction of the slide; whether Stone Mountain's continued use and operation of the slide constituted the maintenance of a public nuisance; and whether Smith Construction was strictly liable as the manufacturer of the water slide.

The record contains, among other things, the deposition of the injured child.The 11-year-old testified that his parents accompanied him to the water slide complex but that he was the only family member to purchase a ticket in order to ride on the various slides.He alternated riding the "Wet Jet" and the "Corkscrew" and was injured on his third trip down the "Corkscrew."Young Abee stated that he had seen others riding the slide and that it looked like fun.He agreed that "part of the fun" of the ride was to slip up the sides of the U-shaped fiberglass flumes, and that it was a "thrill ride."He noted that the "Corkscrew" was "rougher" since it had a tendency to sling the rider farther up the sides of the flume.He returned to the calmer "Wet Jet" after each "Corkscrew" ride (except the last one), but went back to the "Corkscrew" to "try it again."He sustained his injuries when, after riding up the side of a curve of the flume, he"flipped over" into the bottom of the U-shaped flume and hit his mouth on the fiberglass.The child also testified that there was nothing unusual about the condition of the slide at the site of his mishap, that the slide did not run any differently at the time he was injured from the times he rode injury-free, and that the water flow was no different.He stated that he expected to go up the sides of the flume on the curves and that he was aware that one rode the curves higher on the "Corkscrew" than on other slides.Appellant testified that during his two successful rides down the "Corkscrew"he had noticed that his body would "slip a bit" when he rode up the sides of the flume.

1.Appellees contend that appellant's deposition conclusively establishes the fact that the youngster assumed the risks inherent in riding a water slide and therefore cannot recover for any negligence on the part of Stone Mountain or Smith Construction in the operation, maintenance, construction, design, and supervision of the slide.SeeHolbrook v. Prescott, 166 Ga.App. 588, 305 S.E.2d 156;Atlanta Funtown, Inc. v. Crouch, 114 Ga.App. 702, 152 S.E.2d 583.However, before we undertake a study of appellant's deposition to determine if, through it, appellant displayed the knowledge requisite to assuming the risk, we must decide if the trial court was correct when it implicitly determined as a matter of law that this minor could assume the risk.

"The defense of assumption of risk presupposes (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom, and (3) that he voluntarily exposed himself to such risk."57 AmJur2d 674, Negligence, § 281." 'The business invitee on private premises assumes the risk of danger of which he knows about and fully comprehends, or which is sufficiently obvious.[Cit.]'Amear v. Hall, 164 Ga.App. 163, 169, 296 S.E.2d 611(1982)."Holbrook v. Prescott, supra, 166 Ga.App. p. 437, 305 S.E.2d 156."Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk."Roberts v. King, 102 Ga.App. 518, 521, 116 S.E.2d 885."Infants under fourteen years of age ... assume the risk of those patent, obvious, and known dangers which they are able to appreciate and avoid."Evans v. Josephine Mills, 119 Ga. 448(Hn. 6), 46 S.E. 674.

Although whether assumption of risk on the part of a child bars recovery "is peculiarly a question for the jury"(Walt Disney Productions v. Shannon, 247 Ga. 402, 405(fn. 3), 276 S.E.2d 580), if "the facts are so plain and palpable that they demand a finding by the court as a matter of law,"the trial court may make that determination on summary adjudication without the intervention of a jury.SeeJackson v. Young, 125 Ga.App. 342, 343, 187 S.E.2d 564.

We now turn to the record in the case, including the deposition of appellant, to determine if summary judgment for Stone Mountain and Smith Construction were demanded under the doctrine of assumption of risk.The child was an experienced rider of water slides and agreed that the slide was a "thrill ride"; and that part of the fun was to slide up the sides of the flume.He was aware of the fact that riders of the "Corkscrew" were catapulted farther up the sides of the flume than riders of the "Wet Jet," and he had himself experienced the sensation of his body slipping on the sides of the flume as he rode down the slide.Fully aware of the ride's propensities and armed with the "consciousness of the force of gravity" which makes every child who is old enough to be at large aware of the risk of falling (seeLaite v. Baxter, 126 Ga.App. 743, 747-748, 191 S.E.2d 531), appellant voluntarily exposed himself to the risks of the ride again and again, stopping only after suffering the injuries upon which his present claims are based.Thus, it appears from appell...