Laite v. Baxter

• Decision Date: 22 June 1972
• Docket Number: Nos. 1,2,3,No. 46923,46923,s. 1
• Citation: 191 S.E.2d 531,126 Ga.App. 743
• Parties: Marilyn M. LAITE v. Edgar F. BAXTER
• Court: Georgia Court of Appeals

Page 531

191 S.E.2d 531

126 Ga.App. 743

Marilyn M. LAITE v. Edgar F. BAXTER.

No. 46923.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 22, 1972.

Rehearing Denied July 21, 1972.

Adams, O'Neal & Hemingway, H. T. O'Neal, Jr., Macon, for appellant.

Martin, Snow, Grant & Napier, George C. Grant, Macon, for appellee. Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

William E. Laite, III, age 15 years, 11 months and 16 days, slipped and fell on rocks below the dam at High Falls State Park about 4 p.m. on Saturday, November 4, 1967, and died from the injuries. His parents had gone from their home in Macon the day before to Atlanta for an overnight stay, leaving Bill and their other children in the custody of the family made. On Saturday while visiting in the home of a friend, Edgar F. Baxter, Jr., within a few days of the same age, Bill accepted an invitation from the Baxters to accompany them on a fishing trip to High Falls, and left Macon with them for this purpose, with the knowledge and consent of the family maid (who, as Mrs. Laite testified, was in control of the children and had authority to allow Bill to make this trip), it being understood that he would return that afternoon or evening. About 5 p.m. before returning to Macon the Laites telephoned the maid and learned that Bill had gone with the Baxters to High Falls. The father stated in his deposition that he considered his son to have been 'in good hands.'

The tragedy occurred just as the Baxters were planning to leave High Falls. Having been unsuccessful in fishing above the dam, Edgar and Bill received permission from Edgar's father to fish in the rapids below the dam. Mrs. Baxter testified that as the boys left her husband admonished them to 'be careful.' Though Mr. Baxter did not recall it, he asserted 'I always tell my boy to be careful, but we understood that.' They placed the car where they could sit and watch the boys as they fished, and did. While Edgar's father and mother were waiting in their automobile Edgar came running to them and told them that on the way back to the car Bill had slipped and fallen while trying to throw a piece of wood into the water, and had disappeared. Mr. Baxter immediately responded, instituted a search for Bill and found his body in the water. It appears that he died from injuries received from the fall and not from drowning.

He was a good swimmer and diver and a normal child for his age. He was active in school sports, being a member of the football team. He was a 'nice sized boy,' larger than his friend Edgar Baxter (son of the defendant), and had been active in the Boy Scouts, progressing from Tenderfoot to Third Class, to Second Class to First Class, and was a Patrol Leader at the time of his death. He had been off on overnight hiking trips, including a Scout camping trip to High Falls a week before this occasion and was then in close proximity to the point where subsequently he fell. He had been cautioned by the scoutmaster about he hazard of the falls, was impressed and recognized it. He had taken a life saving course at the YMCA. He was a very bright boy, doing excellent work in school with grades of A or B.

Mrs. Laite brought a wrongful death action against Edgar F. Baxter, Sr., and appeals the grant of a summary judgment for the defendant. Held:

1. 'The summary judgment statute provides that if the pleadings, depositions, and admissions on file, together with the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, such judgment should be rendered forthwith, but that nothing in the statute shall be construed as denying any party the right to a trial by jury if there are any substantial issues of fact to be determined. Code Ann. § 110-1203 (now Code Ann. § 81A-156(c)). A primary purpose of this procedure is to allow a party to pierce the allegations of the pleadings, show the truth to the court, and receive judgment where there is no genuine issue of material fact, although an issue may be raised by the pleadings. Scales v. Peevy, 103 Ga.App. 42, 47, 118 S.E.2d 193. It logically follows that if defendant, as movant for summary judgment, produces evidence conclusively establishing a fact or facts which negate one or more essential elements of plaintiff's action, it is useless to present the case to a jury, and the movant is entitled to a summary judgment as a matter of law. See Allen v. Safeco Insurance Company of America, 108 Ga.App. 278, 279, 132 S.E.2d 859.' Calhoun v. Eaves, 114 Ga.App. 756, 152 S.E.2d 805. And see Crutcher v. Crawford Land Co., Inc., 220 Ga. 298, 302, 138 S.E.2d 580.

2. Appellee urges that the cases of Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 and its sequel, Herring v. R. L. Mathis Certified Dairy Co., 121 Ga.App. 373, 173 S.E.2d 716, are controlling here. Appellant contends that they are not, since the boy who drowned in those cases was 14 years old, while young Laite was slightly under 13 years old, and that principles applicable to youths under the age of 14 are different from those applying to those who are 14 years old and over.

Pretermitting the matter of whether those cases control, or whether they are even applicable here, we nevertheless find that principles of law which apply regardless of the age of the child involved require an affirmance of this case.

What was the greatest degree of care owed by the Baxters to young Laite? 'When a person undertakes to control and watch over a young child, even without compensation, he becomes responsible for injury to the child through his negligence, and his duty to use reasonable care to protect the child is not measured by what his duty would have been to a social guest or licensee. However, the measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average reasonable parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.' 65 C.J.S. Negligence § 63(60), pp. 781-782. 'The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances.' 57 Am.Jur.2d Negligence, § 88, p. 436. 'As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risks of harm.' Whitney v. Southern Farm Bureau Cas. Ins. Co., 225 So.2d 30, 33 (La.App.).

Certainly it was not expected of the Baxters that young Laite be 'tied to their apron strings.' Cf. Savannah Elec. Co. v. Dixon, 18 Ga.App. 314(5), 89 S.E. 373.

How is the measure of care affecxted by the age, experience, and traits of the child? 'Children of tender years and youthful persons generally are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter (Lee v. Georgia Forest Products Co., 44 Ga.App. 850, 163 S.E. 267), as well as to the superior knowledge of persons who come into contact with them.' 57 Am.Jur.2d Negligence, § 89, p. 436. In cases of this nature the age, experience, and capacity of the child become controlling, not only on the matter of the child's responsibilities to himself, but also as they bear on the responsibility of the person who has him in custody. As the age and capacity of the child increases, the responsibility for his own safety also increases, with the necessary result that the responsibilities of his custodian decrease proportionately. And, finally, the situation may reach a point at which nonliability is determinable as a matter of law, as in Whitney v. Southern Farm Bureau Cas. Ins. Co., 225 So.2d 30, 33 (La.App.), supra, where under all the circumstances of the recreational outing, summary judgment was upheld as to a custodian who left unattended in the water for 20 minutes a 12-year-old nonswimmer guest in company with his own children, aged 13, 12 and 10, the latter of whom was also a nonswimmer.

If, then, the duty of reasonable care applicable to a custodian is to be gauged by the standard of the ordinarily prudent person or the average reasonable parent; if the custodian is not an insurer of the safety of the child, and has no duty to foresee and guard against every possible hazard but is required only to use reasonable care commensurate with the reasonably foreseeable risks of harm, which in turn is dependent upon the custodian's knowledge of perils vis a vis the youth's ability, governed by his age, experience, and capacity, to appreciate and avoid the peril-how stands the present case? The most that can be said in support of any alleged negligence on the part of defendant custodian is that he allowed decedent, in company with his own son of the same age, to fish below the dam without specifically cautioning him as to the perils of that area. It is true that Mr. Baxter does not recall specifically the giving of a warning or admonition to the boys to 'be careful,' when they went to fish, while Mrs. Baxter does so recall, but we do not regard this as indicating a breach of duty by Mr. Baxter. It is uncontradicted that young Laite was familiar with the premises. He had camped on them the week before with the Scouts, and was then admonished of its dangers by the scoutmaster. His father says that young Laite was impressed and recognized the hazards.

In Augusta Amusements, Inc. v. Powell, 93 Ga.App. 752, 757, 92 S.E.2d 720, 725 we cited and quoted approvingly from McHugh v. Reading Co., 346 Pa. 266, 30 A.2d 122, 145 A.L.R. 319 where the injured child was six years old,...