Holbrook v. Prescott

• Decision Date: 11 May 1983
• Docket Number: No. 65617,65617
• Citation: Holbrook v. Prescott, 305 S.E.2d 156, 166 Ga.App. 588 (Ga. App. 1983)
• Parties: HOLBROOK et al. v. PRESCOTT et al.
• Court: Georgia Court of Appeals

Page 156

305 S.E.2d 156

166 Ga.App. 588

HOLBROOK et al. v.PRESCOTT et al.

No. 65617.

Court of Appeals of Georgia.

May 11, 1983.

Winship E. Rees, Lawrenceville, for appellants.

Stanley Thomas Snellings, Atlanta, for appellees.

CARLEY, Judge.

Appellant-plaintiff Mrs. Holbrook and several others were in attendance at a party being held at appellee-defendants' place of business which is known as Wet Willy's.Wet Willy's is an establishment in the nature of an amusement park consisting of three water slides.After paying an admission fee, patrons of Wet Willy's are provided mats upon which to sit and slide down into a large pool of water.Patrons are advised by posted sign that sliding will be at their "own risk."Mrs. Holbrook had been to Wet Willy's or similar water slides on previous occasions.On the date in question, someone in Mrs. Holbrook's party suggested that they form a "train" and slide down in tandem.Although Mrs. Holbrook had participated in a "train" on one previous occasion, apparently, she was somewhat apprehensive about such an arrangement.However, Mrs. Holbrook was reassured by appellees' employee that no one would be hurt.With the assistance and direction of appellees' employee, the members of Mrs. Holbrook's party began to arrange themselves on overlapping mats at the top of the water slide.Appellees' employee announced that he would stop the flow of water down the slide and, according to Mrs. Holbrook, the water did stop flowing while the "train" assembled itself.When the "train" had formed, appellees' employee "let the water go, and he said, 'All right, go.' "According to Mrs. Holbrook, as the result of the sudden release of the blocked water, the "train" proceeded down the slide at a seemingly "much faster" rate of speed than the one in which she had previously participated.When the "train" reached the bottom of the slide and entered the pool, Mrs. Holbrook suffered a broken leg.

Appellants, Mr. and Mrs. Holbrook, instituted the instant action to recover for the damages arising out of and in connection with the injuries sustained by Mrs. Holbrook.Appellees answered and, after taking Mrs. Holbrook's deposition, moved for summary judgment.A hearing was held and the trial court granted appellees' motion.It is from this order that appellants appeal.

It is the sole contention of appellees that any recovery for the broken leg is barred by Mrs. Holbrook's failure to exercise ordinary care for her own safety and by her assumption of the risk."The business invitee on private premises assumes the risk of danger of which he knows about and fully comprehends, or which is sufficiently obvious.[Cit.]"Amear v. Hall, 164 Ga.App. 163, 169, 296 S.E.2d 611(1982)."That which a plaintiff may not do without barring himself from recovery is to accept a risk so obvious that taking it amounts to failure to exercise ordinary care for his own safety, [cit.], or recklessly to test an observed and clearly obvious peril, [cit.]"Kreiss v. Allatoona Landing, 108 Ga.App. 427, 437, 133 S.E.2d 602(1963)." 'A person cannot undertake to do an obviously dangerous thing, even though directed by another ... without himself being guilty of such lack of due care for his own safety as to bar him from recovery if he is injured...'[Cit.]"Roberts v. Bradley, 114 Ga.App. 262, 263, 150 S.E.2d 720(1966)."An act of contributory negligence or an error in judgment is not necessarily an assumption of risk ( [cit.] ), and the rule does not extend to assuming the risk of the negligent act of another.[Cit.]"(Emphasis supplied.)Owens-Illinois v. Bryson, 138 Ga.App. 78, 79, 225 S.E.2d 475(1976).

With specific regard to amusement park rides, such as that involved in the instant case, the following is applicable: "Where it appeared from the passenger's testimony ... that she was familiar with the operation of roller coasters in general and in particular with the 'Wild Mouse,' a sort of roller coaster the method of operation of which she had observed before boarding it and upon which she was injured; that it was operated no differently on the occasion of her ride; that the passenger was not injured as a result of obscure or unobservable risks, unexpected dangers or...