Gregory v. Johnson

• Court: Georgia Supreme Court
• Writing for the Court: CLARKE; All the Justices concur, except JORDAN
• Citation: Gregory v. Johnson, 249 Ga. 151, 289 S.E.2d 232 (Ga. 1982)
• Decision Date: 10 March 1982
• Docket Number: No. 37917,37917
• Parties: Glenda Newcomb GREGORY et al. v. Robert M. JOHNSON et al.

Page 232

289 S.E.2d 232

249 Ga. 151

Glenda Newcomb GREGORY et al. v. Robert M. JOHNSON et al.

No. 37917.

Supreme Court of Georgia.

March 10, 1982.

Joseph E. Vallotton, Gary M. Wisenbaker, Langdale, Vallotton & Hickman, Valdosta, for Glenda Newcomb Gregory et al.

F. Thomas Young, William A. Turner, Jr., Valdosta, for Robert M. Johnson et al.

CLARKE, Justice.

We granted certiorari to determine if the facts of this case present a jury issue on the liability of a landowner under the doctrine referred to as attractive nuisance. In a five to four decision, the Court of Appeals held the defendants were entitled to judgment as a matter of law. Gregory v. Johnson, 159 Ga.App. 320, 283 S.E.2d 357 (1981). We reverse.

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. The Johnsons' home is on a corner lot in a residential area. The pool is situated in their side yard and is equipped with a diving board and a slide which emptied into the pool. Neither the yard nor the pool was fenced in or barricaded in any way. Mr. Gregory had taken his son to visit friends who were neighbors of the Johnsons. At some point during the visit it was noticed that the child was missing. He was found fully clothed and drowned in the pool.

The Gregorys sued the Johnsons on the grounds of negligence and the maintenance of an attractive nuisance. The Johnsons' home is three blocks from an elementary school. The Gregorys contended that young children were known to be in the vicinity of the pool and that the Johnsons had been warned about the presence of children and had refused to erect a fence to protect them. They further contend that the presence of a playground-type slide on an open lot is likely to attract children to play and that a young child could not appreciate the dangers of a slide over water. The complaint alleges that the failure of the Johnsons to take any precautions to guard against injury to children under these circumstances is a breach of duty which gives rise to recovery under theories of negligence and attractive nuisance.

The Johnsons answered denying negligence, and asserting that the Gregorys were contributorily negligent in failing to attend to the child. The Johnsons then moved for summary judgment which was supported by affidavits setting forth the following: (1) They were not at home at the time of the death of the child; (2) the child was not invited upon the premises; and (3) they had no knowledge of the presence of the child on the premises prior to the discovery of the body. Based upon the evidence submitted by these affidavits the trial court granted summary judgment.

The Court of Appeals' affirmance was based upon the early decision in this court of Savannah, Fla. & W. R. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82 (1901) and its progeny. In Beavers, a five year old drowned when he fell into an uncovered construction excavation which had filled up with water. The court held that the child was a trespasser to whom no duty was owed. The findings state there was no evidence that the defendant had knowledge of the presence of children around the excavation. In deciding no duty was owed to the child the court engaged in a long discussion of attractive nuisance and dangerous instrumentalities upon land which may attract children. See Beavers, pp. 400-413, 39 S.E. 82. The opinion recognized the split of authority which then existed in the various jurisdictions and held that the fact a trespasser may be a child of tender years does not change the rule that a landowner owes no duty to a trespasser to keep the premises safe.

The Beavers court did not overrule but declined to apply the existing "turntable doctrine" established in Ferguson v. Columbus & Rome Railway, 75 Ga. 637 (1885). The early railroad turntable cases are generally credited as the beginnings of what became known as the attractive nuisance doctrine in American jurisprudence. Prosser, Trespassing Children, 47 Cal.L.Rev. 427 (August, 1959). The turntable in Ferguson was in the railroad yard and left unsecured in an area known to be frequented by the public. A ten year old child was injured while apparently riding on it. The court held the child could recover for the negligence of the railroad.

The ruling of the Ferguson court has been held to be limited to inherently dangerous instrumentalities, which are attractive to children. Southern Bell Telephone & Telegraph Co. v. Brackin, 215 Ga. 225, 109 S.E.2d 782 (1959). The frequency with which the courts of this state have declined to follow Ferguson has been criticized. Torts--The Attractive Nuisance Doctrine in Georgia--A Plea For Its Reincarnation, 23 Mer.L.Rev. 431 (1972). In Montega Corp. v. Grooms, 128 Ga.App. 333, 337, 196 S.E.2d 459 (1973), the court made the statement that "The turntable or attractive nuisance doctrine does not apply to ponds or other water hazards." Montega, like Beavers, involves a child who drowned in an excavation which filled with water. The court reasoned that maintenance of a pond does not create an unreasonable risk of harm. The cases cited in Montega deal with ponds and excavations. Montega, supra, at 337, 338, 196 S.E.2d 459.

The rule that the attractive nuisance theory does not apply to water hazards was expanded to include residential swimming pools. Poston v. Vanderlee, 144 Ga.App. 833, 242 S.E.2d 727 (1978). In Poston, a three year old was found drowned in a pool maintained by a neighbor. The unfenced pool was above ground and accessible by a ladder. On the day of the death the ladder was in place. On summary judgment the court held no duty had been breached.

Poston was relied on in establishing the right to summary judgment in the present case. The Johnsons also relied on Odom v. Lee, 145 Ga.App. 304, 243 S.E.2d 699 (1978), and Oliver v. City of Atlanta, 147 Ga.App. 790, 250 S.E.2d 519 (1978). In Odum a six year old child was found drowned in a neighbor's pool; however, the similarity with the instant case ends there because the pool was enclosed by a chain link fence and padlocked. Oliver involved a pool which was located in a park owned by the City of Atlanta. The pool was not open to the public, the bath house was boarded up and there was a fence enclosing the entire area. There were signs posted to "Keep Out." A nine year old child made his way into the pool and drowned. The court again held no duty was breached.

There is no question but that the deceased child in this case was a trespasser. "One's status as a trespasser, licensee or invitee is not determined by his age or his capacity, mental or physical." Montega, supra 128 Ga.App. at 335, 196 S.E.2d 459.

The theory of attractive nuisance arose to protect trespassing children in circumstances where their presence could be reasonably anticipated and measures to protect them could be undertaken without placing a heavy burden upon the owner's unrestricted use of his land. See Prosser, Sec. 59, The Law of Torts (4th Ed., 1971). Prosser states that since the 1920's the trend in the law of trespassing children has been to shift from the legal fiction of attractive nuisance to foreseeability of harm and traditional...