Bryant v. Morley

• Decision Date: 30 October 1981
• Citation: 406 So.2d 394
• Parties: Joseph Allen BRYANT, etc., et al. v. Jo Ann B. MORLEY. 80-547.
• Court: Alabama Supreme Court

Page 394

406 So.2d 394

Joseph Allen BRYANT, etc., et al. v. Jo Ann B. MORLEY.

80-547.

Supreme Court of Alabama.

Oct. 30, 1981.

Joseph J. Boswell, Mobile, for appellants.

Bert S. Nettles and R. Joel Potter, Mobile, for appellee.

BEATTY, Justice.

Plaintiff Clifton Bryant, Jr., on behalf of himself and his fourteen-year-old son, Joseph Allen Bryant (Joey), appeals from the grant of summary judgment in favor of defendant, Jo Ann Morley. Bryant's action consists of two counts based on negligence. We affirm.

On July 10, 1980 Joey sustained serious injuries when he dived into the shallow end of defendant's swimming pool. The complaint alleges that defendant "negligently supervised or negligently failed to supervise the conduct of "Joseph" while he was upon the defendant's premises by negligently failing to instruct or warn him not to dive into the swimming pool at points where the water was shallow. The trial court granted defendant's motion for summary judgment based upon the pleadings, the depositions of Joey, his mother Martha Bryant, and defendant Jo Ann Morley, in addition to the affidavits of Joey and Clifton Bryant, Jr.

Under Rule 56, ARCP, summary judgment is appropriate only when the moving party has demonstrated that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Whatley v. Cardinal Pest Control, Ala., 388 So.2d 529 (1980). All reasonable inferences from the facts are viewed most favorably to the non-moving party and the moving party is required to establish that the other party could not recover under "any discernible circumstances." Tolbert v. Gulsby, Ala., 333 So.2d 129 (1976).

The question on this appeal is whether the evidence, when considered in a light most favorable to plaintiffs, would support their contention that defendant had a duty to supervise Joey, and thus defeat summary judgment. Plaintiffs concede that Joey was a social guest at the time of his injury. In Alabama an invited social guest is a licensee of the landowner. Morgan v. Kirkpatrick, 276 Ala. 7, 158 So.2d 650 (1963). The duty owed a licensee is not to willfully or wantonly injure him, or not to negligently injure the licensee after discovering his peril. Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).

The facts in the present case are similar to those in McMullan v. Butler, Ala., 346 So.2d 950 (1977). In McMullan, a fourteen-year-old minor was injured while diving into the backyard pool of another landowner. The minor was on the premises through the invitation of the landowner's two sons. We affirmed the grant of summary judgment by the trial court and stated that "a homeowner should not be obliged to hover over his guests with warnings of possible danger." Id. at 952.

The record discloses that Joey was on defendant's premises at the invitation of her son. Defendant herself possessed no actual knowledge that Joey was shallow diving in her pool on the date of his injury or actual knowledge that Joey had ever on any previous occasion engaged in shallow diving while swimming in her pool. There is no evidence of intentional injury, nor of knowledge on the part of defendant of Joey's peril. Based upon these facts alone, summary judgment was proper.

However, plaintiffs claim that this case falls under an exception to the standard of care for licensees approved in Autrey v. Roebuck Park Baptist Church, supra. The exception is found in Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973), wherein a babysitter, without monetary compensation, undertook the supervision of a minor child who injured himself when he pulled a skillet of hot grease off a counter. In Standifer we held that a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child. 291 Ala. at 438, 282 So.2d at 264. That general rule is inapplicable to the case at bar, however, because there is no evidence that defendant voluntarily undertook the responsibility of supervising the swimming activities of Joey on the occasion in question. The duty of defendant to Joey, then, was that owed to any licensee upon her land, i.e., a duty not to willfully or wantonly injure.

Plaintiffs contend that, even if defendant did not undertake the supervision of Joey on the date of his injury, she at least reserved the right to supervise him and,...