Knowles v. La Rue

• Court: Georgia Court of Appeals
• Writing for the Court: BELL; FELTON, C. J., and NICHOLS
• Citation: Knowles v. La Rue, 116 S.E.2d 248, 102 Ga.App. 350 (Ga. App. 1960)
• Decision Date: 08 September 1960
• Docket Number: No. 1,No. 38424,38424,1
• Parties: Roy KNOWLES v. R. D. LA RUE, by Next Friend

Page 248

116 S.E.2d 248

102 Ga.App. 350

Roy KNOWLES v. R. D. LA RUE, by Next Friend.

No. 38424.

Court of Appeals of Georgia, Division No. 1.

Sept. 8, 1960.

Syllabus by the Court

The allegations of the petition with respect to the issues of negligence of the defendant and the contributory fault of the plaintiff will not be resolved by this court as a matter of law. The issues presented are properly matters to be determined by the jury on the trial of the case.

Ronald D. La Rue brought this action in tort for injuries allegedly caused by the negligence of the defendant, Roy Knowles, in the operation of a swimming pool. The petition alleges in substance the following. The plaintiff paid the customary fee for admission to the swimming pool. The plaintiff sustained an injury while attempting to perform a back dive or back flip from the north side of the swimming pool. The accumulation of water, trash, and other litter at the point of his dive caused his foot to slip as he was attempting the dive. The plaintiff's body entering the pool was turned in such a manner that his head and neck struck 'the extended sharp edge of the drainage trough.' The drainage trough is built into each side of the four sides of the swimming pool. The drainage trough is located on the inside of the four sides of the pool approximately five inches from the top of the pool, extending downwardly toward the bottom of the pool approximately three and one-half inches, and outwardly from the edge of the pool toward the center of the pool approximately two inches. It is constructed with a sharp and dangerous edge. At the time of the plaintiff's injury the drainage trough was approximately at the water line and 'was almost if not completely hidden or concealed by the water in said pool,' and the lication and condition of the drainage trough was unknown to the petitioner.

The plaintiff was stunned and unable to remove himself from the swimming pool as a result of his injury. He was removed from the pool by persons unknown, whereupon the defendant's lifeguard lifted petitioner's head and body off the concrete wall and 'did rotate petitioner's head and neck about for from thirty seconds to one minute,' which allegedly caused the plaintiff to be permanently paralyzed from his shoulders down.

The defendant filed a general demurrer to the petition, asserting that neither the petition nor the allegations thereof are sufficient in law or equity to set forth any cause of action. The demurrer further charged that the petition failed to allege any act of negligence which was the proximate cause of the plaintiff's injury, and further that the petition shows that the cause of the plaintiff's injury was his own negligence in making a back dive from the edge of the swimming pool. The plaintiff amended paragraph 23 of the petition, alleging that the acts of negligence set forth therein were the sole and proximate cause of the plaintiff's injury.

The trial court overruled the demurrers as renewed, to which the defendant excepted, bringing the issue to this court for review.

Fullbright & Duffey, Henry J. Fullbright, Jr., Rome, for plaintiff in error.

E. Lamar Gammage, Jr., Cedartown, Wright, Rogers, Magruder & Hoyt, Wade C. Hoyt, Jr., Rome, for defendant in error.

BELL, Judge.

The only question to be resolved in this case is whether the petition as amended sets out a cause of action against the defendant. Nine separate allegations of negligence are charged by the plaintiff's petition: '(a) In allowing trash, paper and other litter to accumulate around the sides and edges of said pool and in the swimming and diving area. (b) In allowing water to accumulate in puddles around the sides and edges of said pool and in the swimming and diving area. (c) In allowing and permitting said pool to be constructed so as to have said drainage trough and the edge of said drainage trough extending out from the edge of the pool and concealed by the water in said pool, thereby creating an extremely dangerous situation and swimming area for swimmers and divers. (d) By failing to properly inspect said swimming [sic] pool and the construction of said pool so as to have discovered the dangerous location of said drainage trough and its sharp edge. (e) In failing to warn the public generally, and petitioner in particular, of the dangerous location and condition of said drainage trough and its sharp edge. (f) By permitting said drainage trough to remain in said swimming pool after actual knowledge of its dangerous location and condition. (g) In defendant's agent lifting, moving and rotating the head and neck of petitioner contrary to standard and approved medical procedure for treating a person having a head and neck injury. (h) In defendant's agent moving petitioner's head and neck after he knew or should have known of petitioner's injury and the seriousness thereof. (i) In employing life guards which he held out and allowed them to be held out as having competent first aid knowledge and skill when, as a matter of fact, said life guards were not competent and did not have the necessary skill in first aid or medical skill to render aid to stricken and injured swimmers.'

Initially let us say that it is clear from he petition that the plaintiff was an invitee on the defendant's swimming pool property.

Under Code, § 105-401 the owner or occupier of the land is liable in damages to those expressly or impliedly invited upon the premises for such damage as is occasioned by his failure to exercise ordinary care to keep the premises and approaches safe....