Gregory v. Johnson, 61183

• Decision Date: 16 July 1981
• Docket Number: No. 61183,61183
• Citation: 159 Ga.App. 320,283 S.E.2d 357
• Parties: GREGORY et al. v. JOHNSON et al.
• Court: Georgia Court of Appeals

Page 357

283 S.E.2d 357

159 Ga.App. 320

GREGORY et al. v. JOHNSON et al.

No. 61183.

Court of Appeals of Georgia.

July 16, 1981.

Gary M. Wisenbaker, Joseph E. Vallotton, Valdosta, for appellants.

F. Thomas Young, William A. Turner, Jr., Valdosta, for appellees.

BIRDSONG, Judge.

Wrongful Death--Attractive Nuisance. The Gregory's (appellants) two-year-old infant was drowned in the Johnson's (appellees) swimming pool. At the time of the drowning, the infant and his father were visiting in the neighborhood and the child's presence was unknown to the Johnsons, and in fact the Johnsons were not at home at the time of the incident. The pool was beside the house, was not fenced off, and was bordered on two of the remaining sides by intersecting streets. It contained a slide and other accoutrements which, as contended, might well have attracted a young child. Appellants offered proof that the Johnsons had actual knowledge of the frequent presence of children in the area and had been warned that there was a likelihood of injury to a child. Appellants sued for the wrongful death of their child, asserting that the Johnsons maintained an attractive nuisance under the circumstances presented to the child. Appellants' complaint terminated with the grant of summary judgment to the Johnsons. This appeal followed. Held :

We affirm. There was no error by the trial court in refusing to hold as an attractive nuisance the presence of the swimming pool on the privately owned real property of the Johnsons. "One who makes an excavation upon his land is not bound to so guard it as to prevent injury to children who come upon it without his invitation, express or implied, but who are induced to do so merely by the alluring attractiveness of the excavation and its surroundings." Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82 (1901). This decision has been cited, applied to swimming pools, and adhered to up to the present. Higginbotham v. Winborn, 135 Ga.App. 753, 756, 218 S.E.2d 917 (1975); Poston v. Vanderlee, 144 Ga.App. 833, 242 S.E.2d 727 (1978); Odom v. Lee, 145 Ga.App. 304, 243 S.E.2d 699 (1978); Oliver v. City of Atlanta, 147 Ga.App. 790, 250 S.E.2d 519 (1978). Where a child who is upon the premises of others is a trespasser without the knowledge of the owner, although the owner may reasonably have anticipated the presence of the child, the owner is not liable for the injury, since he is liable to a trespasser only for a wilful and wanton act. Brooks v. Logan, 134 Ga.App. 226, 229 et seq., 213 S.E.2d 916 (1975). There can be no liability without the infringement of a legal duty. Laite v. Baxter, 126 Ga.App. 743, 749, 191 S.E.2d 531 (1975). Although the victim is a child this does not affect the legal status, since in such a case "our appellate courts have ruled that neither age nor capacity, mental or physical, is a factor of consideration." Blair v. Manderson, 126 Ga.App. 235, 236, 190 S.E.2d 584 et seq. (1972).

One of the leading and early cases of the doctrine of attractive nuisance in this state is found in Ferguson v. Columbus &c. R., 75 Ga. 637 (the turntable case). That case, however, highlights a distinction between property generally available to the public and privately owned real property. The facts of that case show no concern for the status of the little girl, i. e., whether she was a trespasser, a licensee, an invitee, or a guest. Moreover, the facts show that the public had routinely used the railroad property for a long time as a thoroughfare with full knowledge of the railroad. The question did not resolve itself therefore on the basis of the status of the girl but the responsibility of the railroad toward one properly on the premises who was exposed to a device that could be considered attractive but was dangerous to a child.

On the other hand, a review of cases involving privately owned real property reflects that each of those cases in some degree involves the resolution of the question of the status of the injured party at the time of the injury. This is so because as hereinbefore indicated there is no duty to a trespasser to keep premises in a safe condition. Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, 400, 39 S.E. 82. That case at page 413 lists numerous cases of other jurisdictions supporting the rule that the owner or occupier of land owes no duty of protection to trespassing children. In support of the same rule in this state, see Beavers, supra; Oliver v. City of Atlanta, supra; Poston v. Vanderlee, supra; Crosby v. Savannah Electric &c. Co., 114 Ga.App. 193, 150 S.E.2d 563.

The facts of this case are very similar to though not as strong as the facts in the case of Poston v. Vanderlee, supra, for there the child lived in the neighborhood and played in various yards. That case involved a three-year-old child, an unfenced swimming pool, a removable ladder providing access to the deck surrounding the pool and on the day of the accident, the ladder had not been removed. In the Poston case Judge Shulman stated the principle that fits this case: "While this court is sympathetic to the great loss suffered by the bereaved parents, under the facts of this case appellees have failed to establish any duty owed which would provide a basis for actionable negligence."

The numerous cases that have considered and applied the doctrine of attractive nuisance reveal a certain diffusion in direction. Thus, while the majority of those cases applied the doctrine to incidents occurring at places where the public is invited or tacitly accepted (see Savannah F. & W. R. Co. v. Beavers, supra; Etheredge v. Central of Ga. R. Co., 122 Ga. 853, 50 S.E. 1003; Carter v. LaMance, 40 Ga.App. 695, 151 S.E. 406; Clinton v. Gunn-Willis Lumber Co., 77 Ga.App. 643 (49 S.E.2d 143)) some cases (such as those involving standing bodies of water) decide the issue on whether the dangerous condition or instrumentality is a passive or static attraction or whether the premises contain dangerous active operations which excite curiosity. Atlantic C. L. R. Co. v. O'Neal, 180 Ga. 153, 178 S.E. 451; O'Connor v. Brucker, 117 Ga. 451, 43 S.E. 731; Hannan v. Ehrlich, 102 Ohio St. 176, 131 N.E. 504; and others are concerned with the question of whether the instrumentality itself is inherently dangerous as well as attractive (see Southern Bell Tel. &c. Co. v. Brackin, 215 Ga. 225, 109 S.E.2d 782; Ryckeley v. Ga. Power Co., 122 Ga.App. 107, 176 S.E.2d 493). In any event, it is clear that the courts of this state have been most reluctant to extend the principle beyond the holding in Ferguson, supra. See Southern Bell v. Brackin, supra; O'Connor v. Brucker, supra; Atlantic C. L. R. Co. v. Corbett, 150 Ga. 747, 105 S.E. 358. In any event, should we apply any of these theories of attractive but dangerous instrumentalities to this case, the evidence does not support a conclusion that a swimming pool with a slide and diving board is inherently dangerous or involves purposefully dangerous activity by the owner. Such facilities are static and require another independent overt action to cause injury. Our dissenting brothers apparently would make the mere presence of an unfenced swimming pool located on private property an attractive nuisance; to this concept we cannot agree. Thus, it is concluded that standing alone, a swimming pool on one's personal and private property does not constitute per se an attractive nuisance.

In this case it is not contended that the deceased child was present at the express invitation of the appellees. Moreover, it is not disputed that appellees did not have notice that the child was on their property at the time of his death. "That an owner may have permitted children to play upon his premises, or that there may be conditions thereon which are alluring to them does not amount to an implied invitation to children to go upon his land. Southern Cotton Oil Co. v. Pierce, 145 Ga. 130, 88 S.E. 672; Atlantic C. L. R. Co. v. Corbett, 150 Ga. 747, 105 S.E. 358; Atlantic C. L. R. Co. v. O'Neal, 180 Ga. 153, 178 S.E. 451, supra; Seaboard A. R. Co. v. Young, 20 Ga.App. 291 (93 S.E. 29); Manos v. Myers-Miller Furn. Co., 32 Ga.App. 644 (124 S.E. 357); Haley Motor Co. v. Boynton, 40 Ga.App. 675, 150 S.E. 862; Smith v. Ga. Power Co., 43 Ga.App. 210, 158 S.E. 371; Brown v. Bone, 85 Ga.App. 22, 68 S.E.2d 190." Montega Corp. v. Grooms, 128 Ga.App. 333, 335 (1), 196 S.E.2d 459.

There being no question of disputed material fact remaining for jury resolution, the trial court did not err in granting summary judgment to the Johnsons.

Judgment affirmed.

QUILLIAN, C. J., DEEN and SHULMAN, P. JJ., and SOGNIER, J., concur.

DEEN, P. J., concurs specially, joined by SHULMAN, P. J., and BIRDSONG and SOGNIER, JJ.

CARLEY, J., dissents joined by McMURRAY, P. J., and BANKE and POPE, JJ.

BANKE, J., dissents separately, joined by CARLEY, J.

DEEN, Presiding Judge, concurring specially.

"When a child wakes up in the morning in his father's house, the duty of providing a safe playground for him during the day rests upon his parents." Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, 404, 39 S.E. 82 (1901). "It would normally be the duty of a parent or other adult to see to it that a child would not be going into a place 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 custody."

In the case sub judice the infant and his father were visiting in the neighborhood. The parents have the primary responsibility of rearing, educating and safeguarding the child. To hold otherwise herein would be imposition of a societal, environmental, collectivist product liability type responsibility on every homeowner possessing a slide and swimming pool in his backyard as an insurer. The facts in this case should not be equated with...