Massey v. Wright

• Decision Date: 10 February 1984
• Parties: Robert MASSEY, as Father and Next Friend of Joan Teresa Massey, a minor v. Ernest WRIGHT and Glenda Wright. 82-713.
• Court: Alabama Supreme Court

Page 169

447 So.2d 169

Robert MASSEY, as Father and Next Friend of Joan Teresa Massey, a minor v. Ernest WRIGHT and Glenda Wright.

82-713.

Supreme Court of Alabama.

Feb. 10, 1984.

Stephen J. Pettit of Knight & Griffith, Cullman, for appellant.

Eugene D. Martenson and Rebecca L. Shows of Huie, Fernambucq & Stewart, Birmingham, for appellees.

ADAMS, Justice.

This appeal arises from a personal injury suit filed by Robert Massey on behalf of his minor daughter, Joan Teresa Massey, who was injured while swimming in the defendants' swimming pool during a visit to their home. The amended complaint alleged negligence, negligence due to the defendants' failure to provide adequate safety devices for the pool, negligence in that the defendants had knowledge of a hidden peril and failed to notify Joan, negligence in the defendants' attempts to rescue the child, and willful and wanton injury. After extensive discovery, the defendants moved for a summary judgment. The court, after considering the affidavits, depositions, and briefs filed by both sides, granted summary judgment in favor of the defendants, and the plaintiff appealed.

Massey argues on appeal that the evidence presents a genuine issue of material fact under each of the following theories: (1) breach of duty owed to a social guest; (2) attractive nuisance; (2) dangerous instrumentality; (4) breach of duty to supervise a child entrusted to defendants' care; and (5) breach of duty imposed by a city ordinance. After a thorough review of the evidence that was before the trial court, we disagree. The judgment of the trial court is affirmed.

The incident from which the suit arose happened as follows:

Joan Teresa Massey was invited by the defendants' daughter, Terry Wright, to spend the night at the Wright home on May 23, 1980. Both girls were twelve years old. Two other girls were also invited. It was known by all the children that the Wrights had a swimming pool, and they all brought bathing suits to the house. Mrs. Wright picked the girls up in her car at school around 12:00, brought them to her house, and prepared lunch for them. At about 3:00, Mrs. Wright left to pick up another child at school. On her return, she took all the children, including her 3-year-old, to the pool.

There is undisputed testimony that Mrs. Wright told the children not to go to the deep end of the pool, but to stay at the shallow end. Shortly after this instruction, Joan Massey ran around the pool to the deep end and jumped in feet first. Mrs. Wright followed Joan to the deep end of the pool. It appears from the testimony that Joan started rising toward the surface, although her face never cleared the water. Then, with no evidence of struggle or effort to swim, she sank back down. At this point she suddenly became limp and collapsed to the bottom of the deepest part of the pool. Joan's cousin, Jo Linda Smith, who was also at the party, screamed that Joan was having a seizure. The evidence indicates that Mrs. Wright had no knowledge, up to that moment, that Joan suffered from grand mal and petit mal seizures. The evidence is somewhat conflicting as to exactly what happened next, but it is undisputed that Mrs. Wright shouted for Terry to call the fire department, which she immediately did. Mrs. Wright then got a pole and was ultimately able to push Joan over to a sloping side of the pool, where she managed to reach her with her feet, pull her up until she got her with her hands, and carry her to the shallow end of the pool. From there, the other children helped to lift Joan from the water. Mrs. Wright then began to give Joan mouth-to-mouth resuscitation. Shortly thereafter, the rescue team arrived and took over the resuscitation efforts.

Joan was hospitalized for some time, and was still receiving speech and physical therapy at the time of her deposition. The treating physicians testified that she suffered oxygen deprivation during the incident. The extent of her injuries indicates that she was deprived of oxygen for five to ten minutes. She is now in special education classes. Her physicians testified that she is expected to have permanent brain damage.

1.

It is undisputed that on the date of the injury Joan Massey was a social guest of the Wrights. In Alabama a social guest is a licensee of the landowner. Bryant v. Morley, 406 So.2d 394 (Ala.1981); Morgan v. Kirkpatrick, 276 Ala. 7, 158 So.2d 650 (1963). The duty owed to a licensee by the landowner is not to willfully or wantonly injure him, or not to negligently injure him after discovering that he is in peril. McMullan v. Butler, 346 So.2d 950 (Ala.1977); Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). The reason for this rule is the belief that a guest should not expect better than that which the host has, but should, rather, accommodate himself to the conditions of his host. McMullan v. Butler, supra; Morgan v. Kirkpatrick, supra.

Massey argues that the pool was abnormally dangerous because it lacked a ladder at the deep end and a deep water warning rope, and that permitting Joan Massey to swim in it was evidence of wantonness. However, the undisputed evidence shows that Mrs. Wright did not give the children permission to swim in the deep water, but warned them specifically not to do so. Joan did not inadvertently wander into the deep water because of the lack of a warning rope, but ran around the pool and jumped into the deep water, against Mrs. Wright's instructions. Under the circumstances, we find no evidence of wantonness on the part of the defendants.

In addition, Massey argues that there is evidence that Mrs. Wright was guilty of negligently injuring Joan Massey after she became aware of Joan's peril. He bases this argument on the testimony of plaintiff's expert that (1) the method of rescue chosen was not in conformance with good lifesaving procedures; (2) that a better method was easily available to Mrs. Wright, who testified that she knew how to swim; (3) that the available alternative was in conformance with proper lifesaving practice; and (4) that the method chosen actually worsened Joan's injury by delaying respiration and possibly forcing air from her lungs. Whether Mrs. Wright used proper rescue techniques is certainly in dispute, since the defendants' expert in water safety testified that the techniques used were proper. However, the undisputed evidence is that, before Mrs. Wright attempted to rescue her, Joan was lying unconscious on the bottom of the pool. If Mrs. Wright had undertaken no rescue, it is virtually certain that the child would have drowned. In Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973), this court quoted with approval from H.H. Parker & Brother v. Hodgson, 172 Ala. 632, 55 So. 818 (1911):

[W]hile a volunteer is not responsible for the failure or success of the act done by him, yet if by undertaking to do it, though it be voluntary, he brings about a state of affairs which results in injury that would not have occurred if he had not made the effort at all, he is liable.

Standifer v. Pate, 291 Ala. at 437, 282 So.2d at 264 (emphasis in original). While it is unclear whether some other method of rescue might have prevented or lessened the injury, it is clear that if Mrs. Wright had done nothing the injury would have been much worse. Under this standard, there is no evidence of injury caused by Mrs. Wright's action after discovering Joan's peril.

2.

In arguing the theory of attractive nuisance, the appellant relies on Tolbert v. Gulsby, supra, a case not involving a swimming pool, which he claims necessarily, albeit sub silentio, overruled the line of Alabama cases holding that the attractive nuisance doctrine does not apply to bodies of water. The appellant's reliance is misplaced. In Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313 (1972), it was stated:

Of course, the attractive nuisance doctrine cannot apply under the facts presented in this count because the swimming pool, the dangerous condition complained of, is patent and obvious to the trespasser. It is well settled in Alabama that where the danger from the instrumentality which caused the injury is patent and obvious the doctrine of attractive nuisance is inapplicable. Republic Steel Corp. v. Tillery, 261 Ala. 34, 72 So.2d 719; Luallen v. Woodstock Iron & Steel Corp., 236 Ala. 621, 184 So. 182; Ford v. Planters' Chem. & Oil Co., 220 Ala. 669, 126 So. 866; Williams v. Bolding, 220 Ala. 328, 124 So. 892; Eades v. American Cast-Iron Pipe Co., 208 Ala. 556, 94 So. 593; Athey v. Tennessee Coal, Iron & Ry. Co., 191 Ala. 646, 68 So. 154; Alabama Great So. R.R. Co. v. Green, 276 Ala. 120, 159 So.2d 823; City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217.

Earnest v. Regent Pool, Inc., 288 Ala. at 66, 257 So.2d at 315-316.

In Glover v. City of Mobile, 417 So.2d 175 (Ala.1982), a post-Tolbert case, this court quoted from Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974) in affirming a summary judgment on an attractive nuisance count:

[S]ummary judgment as to the count of attractive nuisance was properly entered by the trial court. In Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974), this Court considered an action against the City for the drowning deaths of two children in a deep drainage ditch. The Court denied liability and held:

"Finally, this court said in Mayo v. Mobile Asphalt Co., 272 Ala. 442, 131 So.2d 881:

" 'We have held that water hazards are not dangerous instrumentalities and no legal duty is imposed on the owner of property to erect barriers, or other safeguards to protect children, not invitees, from water hazards. Cobb v. Lowe Mfg. Co., 227 Ala. 456, 150 So. 687.' "

Bailey, at 292 Ala. 439, 296 So.2d 149.

Glover v. City of Mobile, 417 So.2d at 178-179. In addition, there are other reasons to hold that attractive nuisance does not apply in the case before us. The doctrine...