George R. Lane & Associates, Inc. v. Thomasson
| Decision Date | 26 November 1980 |
| Docket Number | No. 60007,60007 |
| Citation | 156 Ga.App. 313,274 S.E.2d 708 |
| Court | Georgia Court of Appeals |
| Parties | GEORGE R. LANE & ASSOCIATES, INC. et al. v. THOMASSON. |
Edward L. Savell, Atlanta, for appellants.
Roy E. Barnes, Marietta, for appellee.
In this wrongful death action brought by the mother of a deceased minor child who drowned in a swimming pool of the apartment complex owned and managed by appellants, the case was tried pursuant to a consolidated pretrial order agreed to and signed by counsel for all parties. The pretrial agreement, in effect, required the jury to weigh contentions of comparative negligence. As stipulated therein, the plaintiff's contentions were that she was a leaseholder and resided with her husband and 30-month-old child in an apartment owned and managed by the appellants, that a swimming pool was provided at these apartments especially for children residing in the complex, but at the time of the accident, there was no gate lock on the swimming pool fence to keep small children out in spite of the fact that this condition had been called to the attention of appellants and was known to them. It was alleged that the sole proximate cause of the child's death was the joint negligence of appellants in not properly maintaining and managing this pool in that they did not provide and maintain a lock on the gate, when they knew or should have known that the deceased child would go on the premises and enter the pool. Damages of $500,000 were sought.
Defendant-appellants, on the other hand, by their contentions, denied that they were negligent, contending that the pool had not opened for the day at the time the child wandered in; that no children under twelve were permitted in the pool area at any time without one parent accompanying them; and that under these circumstances the child was a licensee in the pool area. Appellants further alleged that the child's father had undertaken to look after him on the morning of the incident, but negligently started reading a newspaper instead; and that the father's negligence in failing to watch the child and prevent him from going in the pool area was the proximate cause of his death. Finally, appellants asserted that under the lease signed by Mr. and Mrs. Thomasson, the tenants expressly agreed to indemnify the management against all liabilities incurred as a result of any accident happening on the apartment premises because of the "condition, maintenance or operation" of the apartment complex. The pretrial order was to supersede the pleadings and no issue was to be considered if not contained therein. The jury rendered a verdict in the amount of $180,000 in favor of the mother, and this appeal ensued. Held :
The evidence established that the pool was fenced in with a cyclone-type fence and the gate was equipped with a "horseshoe latch." The mother testified that when the gate was locked the child was not strong enough to open it himself. However, there had been problems keeping the gates locked at night, people were constantly breaking the locks and the management was constantly replacing them. On at least two occasions when complaints were made about the lack of locks on the family pool, some affirmative action was taken to correct the problem.
The accident occurred on July 4, 1976. Dickie, the child, awoke at 6:00 a. m. and Mr. Thomasson fed him, got the Sunday paper and went outside to sit in a lawn chair while Dickie played. Sometimes Dickie would ride his tricycle around the lot and get out of sight behind cars. After getting up to look for him about six times, shortly before 8:00 a. m. Mr. Thomasson could not find Dickie. When he told Mrs. Thomasson, she went immediately to the pool and found Dickie unconscious in the water. She attempted to give him mouth-to-mouth resuscitation and an ambulance was called, but the child subsequently died.
The lease executed by the Thomassons provided in part: (Emphasis supplied.)
The pool rules were conspicuously posted and the first three rules recited:
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...of obvious danger." Wright v. Shoney's of Savannah, 141 Ga.App. 362, 362, 233 S.E.2d 474 (1977). George R. Lane & Associates v. Thomasson, 156 Ga.App. 313, 315, 274 S.E.2d 708 (1980) held that the father "... was negligent as to the care and control of the child in his In the case sub judic......
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...parties nor render the owner ... liable to him where he otherwise would not be liable (Cits.)' [Cit.]" George R. Lane & Assoc. v. Thomasson, 156 Ga.App. 313, 315, 274 S.E.2d 708 (1980). Dan was on the dock under the supervision of his parents at the time he drowned, and they were familiar w......
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Lawyers Title Ins. v. New Freedom Mortg.
...881, 887(2), 555 S.E.2d 188 (2001), rev'd on other grounds, 275 Ga. 805, 573 S.E.2d 31 (2002). See also George R. Lane & Assoc. v. Thomasson, 156 Ga.App. 313, 315, 274 S.E.2d 708 (1980); Ga. State Tel. Co. v. Scarboro, 148 Ga.App. 390, 391-392(2), 251 S.E.2d 309 (1978). Applying this princi......
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Schuster v. Plaza Pacific Equities, Inc.
...argument, it is unpersuaded as to its soundness. Defendant relies upon two recent Georgia cases. George R. Lane and Associates vs. Thomasson, 156 Ga.App. 313, 274 S.E.2d 708 (1980) was a wrongful death action brought by the mother of a deceased minor child who drowned in a swimming pool of ......