Lincoln v. Wilcox, s. 41150

• Decision Date: 17 March 1965
• Docket Number: 41151,Nos. 41150,No. 1,s. 41150,1
• Citation: 141 S.E.2d 765,111 Ga.App. 365
• Parties: W. R. LINCOLN, Jr. v. Brenda Dale WILCOX, by Next Friend. W. R. LINCOLN, Jr. v. W. W. WILCOX
• Court: Georgia Court of Appeals

Page 765

141 S.E.2d 765

111 Ga.App. 365

W. R. LINCOLN, Jr. v. Brenda Dale WILCOX, by Next Friend.

W. R. LINCOLN, Jr. v. W. W. WILCOX.

Nos. 41150, 41151.

Court of Appeals of Georgia, Division No. 1.

March 17, 1965.

Syllabus by the Court

The court erred in overruling the general demurrers of the defendant swimming pool proprietor to the petitions for damages for injuries to an invitee, which petitions show on their face that the sole proximate cause of the injuries was the negligence of another invitee, the co-defendant of the plaintiff in error.

W. W. Wilcox filed actions both as next friend of his minor daughter, Brenda Dale Wilcox, and as her father against William R. Lincoln, Jr., owner and operator of a swimming pool, and Jerry Byrd, a paid invitee at the pool, to recover damages for injuries sustained by his daughter, alleged to have been solely and proximately caused by the joint and concurring negligence of both defendants. The petitions as amended alleged substantially as follows: That defendant Lincoln owned and operated the pool as a commercial enterprise for his gain and profit, inviting members of the public to dive and swim therein upon payment of an admission price; that, at the time of the alleged injury, the pool was filled with clear water and persons in and/or under the water could be clearly seen by anyone at the pool, including both the defendants and employees, if any; that, while Brenda Dale, as a paid invitee, was swimming from the east to the west side of the pool, defendant Byrd dived off the diving board and struck her in the face with his body, causing various alleged serious and permanent injuries, which prevented her from performing any of her usual alleged home chores or engaging in alleged sports and social activities for approximately one year. The specifications of defendant Lincoln's negligence are as follows: (a) failing to keep the pool and premises safe for the use and enjoyment of the daughter, a paid invitee; (b) failing to provide adequate protection for her safety while in the pool; (c) failing to supervise the use of the pool and premises so as to have prevented her from being dived into and injured; (d) failing to supervise the diving activities of invitee-defendant Byrd so as to have prevented her injury; (e) failing to supervise and control the use of the diving board, a dangerous instrumentality, by Byrd, so as to have avoided her injury. The court overruled defendant Lincoln's renewed general and special demurrers to the petitions as amended, to which judgments he excepts.

Laurie K. Abbott, William F. Braziel, Savannah, for plaintiffs in error.

Pierce, Ranitz & Lee, Thomas J. Mahoney, Jr., Savannah, for defendant in error.

FELTON, Chief Judge.

Code, § 105-401 provides: 'Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.' Since there is no allegation that the physical condition of the premises was unsafe, the sole question involved is whether or not the petition shows that there was a duty on the part of the proprietor, under the alleged circumstances, to exercise ordinary care to prevent the particular injury to this invitee, caused by the alleged negligence of a co-invitee.

'It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence. Moone v. Smith, 6 Ga.App. 649(1), 65 S.E. 712.' (Emphasis supplied.) Georgia Bowling Enterprises v. Robbins, 103 Ga.App. 286, 288, 119...