English v. 1st Augusta Ltd.
| Decision Date | 10 July 1985 |
| Docket Number | Civ. A. No. CV184-097. |
| Citation | 614 F. Supp. 1406 |
| Parties | Pamela Sue ENGLISH, Individually and as Personal Representative of the Estate of James Harold Burgess, Deceased, and Harold Benjamin Burgess, Individually and as Personal Representative of the Estate of James Harold Burgess, Deceased, Plaintiffs, v. 1ST AUGUSTA LTD., Natubhai Parbhubhai Patel, Arbindbhai Hirabhai Patel, and Bipinbhai Hirabhai Patel, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
Austin E. Catts, Robert H. Benfield, Jr., Atlanta, Ga., William R. McCracken, Augusta, Ga., for plaintiffs.
Ted H. Clarkson, Patricia Warren Booker of Knox & Zacks, P.C., Augusta, Ga., for defendants.
Before the Court is the defendants' motion for summary judgment. Defendants own and operate the Oasis Motor Hotel located in Augusta, Georgia. Plaintiffs have brought this action seeking to hold the defendants legally responsible for the death of plaintiffs' three-year-old son. The child drowned in the swimming pool at the Oasis while visiting his father who was staying at the hotel. Plaintiffs seek to recover damages for their son's funeral expenses and for his pain and suffering. They also seek to recover damages for the loss of services of their minor child and for the full value of his life. Additionally, plaintiffs seek punitive damages.
Jurisdiction is based upon diversity of citizenship and is not disputed.
The complaint states twelve specific allegations of negligence. In summary, plaintiffs allege that defendants negligently maintained the pool. As defendants concede, the allegations of negligence are taken as true for purposes of considering the motion for summary judgment. Defendants argue that they are entitled to summary judgment, however, because the plaintiffs were aware of the pool's defects. According to defendants, "the plaintiffs were aware of the alleged conditions of the premises which they now contend were dangerous, yet the plaintiffs failed to prevent the child from being in a position where he could enter the pool area alone, which failure led to the tragic drowning." (Defendants' Brief in Support of Motion for Summary Judgment at 2.) In other words, the defendants' "summary judgment motion is premised on the failure of the parents to properly supervise and care for their child as required by Georgia law." (Id. at 7)
Whether or not plaintiffs and defendants were negligent as a matter of fact or law is a matter of dispute. What is clear is that the child was not negligent as a matter of law. A child of three years of age is conclusively presumed to be incapable of contributory negligence. Further, any negligence on the part of the parents is not imputable to the child. See, e.g., Hyde v. Bryant, 114 Ga.App. 535, 537, 151 S.E.2d 925, 926 (1966). See also Ga.Code Ann. § 51-2-1(b) (1982) () Therefore, if plaintiffs are barred from recovery, they are barred by their own negligence or assumption of the risk.
Defendants have argued that the plaintiffs were aware of the alleged defective condition in which the pool was maintained. A review of the transcripts of the deposition testimony of the plaintiffs reveals that they were aware, prior to the death of their child, of the conditions at the Oasis Motel which they now contend were unreasonably dangerous. Defendants insist that they are not relying upon a theory of contributory negligence. Rather, defendants argue that the "equal knowledge" of the pool's defects requires judgment for the defendants as a matter of law.
Knowledge alone, however, will not bar plaintiffs' recovery. The plaintiffs must have been aware of the danger inherent in the conditions surrounding the pool and not merely aware of the existence of the conditions. Robinson v. Western International Hotels, 170 Ga.App. 812, 814, 318 S.E.2d 235, 237 (1984). Further, although the knowledge a party possesses is an element to consider when determining whether the party was negligent or assumed the risk of injury, that consideration is in most instances for a jury. This Court is unwilling to declare as a matter of law that the plaintiffs' negligence, if any, was the "proximate cause" of the child's death or that the plaintiffs assumed the risk of their child's death. Keating v. Jones Development of Missouri, Inc., 398 F.2d 1011 (5th Cir.1968); Gregory v. Johnson, 249 Ga. 151, 155, 289 S.E.2d 232, 235 (1982); Robinson, 170 Ga.App. at 813, 318 S.E.2d at 237; Housing Authority of Atlanta v. Famble, 170 Ga.App. 509, 511, 317 S.E.2d 853, 857 (1984); Ward v. City of Millen, 162 Ga.App. 148, 150, 290 S.E.2d 342, 344 (1982); Colonial Stores, Inc. v. Donovan, 115 Ga.App. 330, 331-32, 154 S.E.2d 659, 661 (1967); Knowles v. Larue, 102 Ga.App. 350, 116 S.E.2d 248 (1960); Butler v. Sports Haven International, 563 P.2d 1245 (Utah S.Ct. 1977); Kandrach v. Chrisman, 63 Tenn.App. 393, 473 S.W.2d 193, 198 (1971); Lynch v. Motel Enterprises, Inc., 248 S.C. 490, 151 S.E.2d 435, 437 (1966). "Even when evidence in a case is not in conflict, the determination of negligence is ordinarily within the province of the trier of fact because of the peculiarly elusive nature of negligence and the necessity that the trier of fact assess the reasonableness of the conduct under all the circumstances." Decker v. Gibson Products Co. of Albany, Inc., 679 F.2d 212, 216 (11th Cir.1982).
When Georgia courts have concluded that a plaintiff, who as a licensee or invitee was injured while on defendant's land, cannot recover from the defendant as a matter of law because the plaintiff knew of the condition or hazard that resulted in his injury, the courts have generally deemed the plaintiff's actions in the light of his knowledge as an assumption of the risk. See, e.g., Pound v. Augusta National, Inc., 158 Ga.App. 166, 168, 279 S.E.2d 342, 344-45 (1981). Defendants, however, rest their defense on the assertion that plaintiff parents failed to supervise and care properly for their child. Such a defense sounds more in negligence than assumption of risk. Of course, "the defenses of assumption of risk and contributory negligence overlap, and are as intersecting circles, with a considerable area in common, where neither excludes the possibility of the other." W. Prosser, Handbook of the Law of Torts 441 (4th ed. 1971). Whether defendants choose to base their defense upon a theory that plaintiffs' negligence caused the death of plaintiffs' child or upon the theory that plaintiffs assumed the risk of the death of their child or both theories, this Court reiterates its inability to grant summary judgment for the defendants.
The question of parental negligence is for the jury to determine. "It is normally the duty of parents, by their presence or training, to keep young children from going into places of obvious danger." Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 755, 92 S.E.2d 720, 724 (1956).
Parents owe a duty to care for their children who are so young and immature that they cannot care for themselves, and in so doing are bound to exercise such degree of care and prudence to promote their safety as, under all the circumstances, is reasonable and proportionate to the age and intelligence of the children, and to the known dangers, or dangers which might be known by the exercise of due care. In other words, parents are required to exercise that degree of care that a reasonably prudent person would exercise under the same conditions, and it must appear that the parent had some knowledge that the child was frequenting a dangerous area, and failed to warn the child or take other adequate precautions.
57 Am.Jur.2d Negligence § 377 (1971). "The true test of parental negligence vel non is whether in the exercise of ordinary care he should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, he exercised the proper degree of care to guard against this result." Hill v. Morrison, 160 Ga.App. 151, 286 S.E.2d 467 (1981). 57 Am.Jur.2d Negligence § 377 (1971). Courts are reluctant to hold as a matter of law that parents are negligent in not keeping constant and unremitting watch and restraint over their children. Atlanta & Charlotte Air-Line Railway v. Gravitt, 93 Ga. 369, 375, 20 S.E. 550, 552 (1893).
Plaintiffs rely heavily upon the case of Gregory v. Johnson, 249 Ga. 151, 289 S.E.2d 232 (1982). "The Gregorys brought a wrongful death action to recover for the death by drowning of their two-year-old child in a swimming pool owned by the Johnsons." Id. The deceased child was a trespasser. The Supreme Court reversed the grant of summary judgment and adopted the five-part test of Restatement (Second) of Torts, § 339 (1965).
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