Northwestern Mut. Life Ins. Co. v. McGivern, s. 49021-49024

• Decision Date: 24 June 1974
• Docket Number: No. 3,Nos. 49021-49024,s. 49021-49024,3
• Citation: 132 Ga.App. 297,208 S.E.2d 258
• Parties: NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY v. Pauline McGIVERN. Pauline McGIVERN v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY v. Charles R. McGIVERN. CHARLES R. McGIVERN v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 258

208 S.E.2d 258

132 Ga.App. 297

NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY v. Pauline McGIVERN.

Pauline McGIVERN v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY.

NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY v. Charles R. McGIVERN.

CHARLES R. McGIVERN v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY.

Nos. 49021-49024.

Court of Appeals of Georgia, Division No. 3.

June 24, 1974.

Rehearing Denied July 9, 1974.

Moore & Morris, Charles E. Moore, Atlanta, for appellant.

Marvin P. Nodvin, Ira S. Zuckerman, Atlanta, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

These appeals and cross appeals are from orders of the trial judge. (1) Orders partially sustaining defendant's motions to strike, and impliedly overruling in part, entered November 5, 1973; and, (2) orders overruling defendant's motions for summary judgment entered the same date. The orders were certified by the trial judge for immediate review pursuant to Ga.L.1965, p. 18; 1968, pp. 1072, 1073 (Code Ann. § 6-701(a)(2)).

The paragraphs of the complaints, pertinent to the motions to strike, are identical in each complaint, although differently numbered. For the purposes of this decision we will deal with the allegations of the complaint in the Pauline McGivern case, the rulings in reference to which will control both cases. The complaint in this portion contained in the following allegations, Par. 10A by amendment: '8. There was no lifeguard or experienced person present to revive Plaintiff's son and there was no safety equipment nor persons present capable of operating any safety equipment and there was no telephone immediately available by which help could be summoned, and Plaintiff's son died. 9. Although Defendant had been operating the swimming pool where the incident occurred for a long period of time, Defendant had failed to have available any attendant or Lifeguard properly instructed in the art and methods of life saving or artificial resuscitation, and by the time properly trained persons capable of giving such aid could be brought to the scene, Plaintiff's son was dead. 10. At said time and place, there was in full force and effect a duly enacted Ordinance of DeKalb County, Georgia, which the Defendant is subject to, as follows: Code of DeKalb County, Georgia, Appendix I, Article XIII, Section 192. 'During bathing hours, there shall be present at each pool at least one competent attendant who shall actively supervise the operation of the pool and its appurtenances and shall be responsible for enforcing all applicable provisions of this Article and other rules or regulations pertaining to safety or sanitation. . . .' (7-11-52, Section 4.) and Section 195(d). 'All reasonable precautions shall be taken to protect bathers from accidents and injury. Convenient means of ingress and egress shall be provided, and the depth of water and any irregularities of the bottom shall be clearly indicated. Safety appliances such as life buoys, life hook, and similar equipment, and first aid kits shall be provided, properly stored, readily accessible, and well maintained.' (7-11-52, Section 6.) 11. Plaintiff's son's death by drowning was directly and proximately caused by the following acts of gross negligence by the Defendant: (a) Its failure to employ at said pool a lifeguard or other competent attendant with the authority and capacity to enforce rules of safety and trained in and competent to apply emergency rescue work or methods of resuscitation and life saving; (b) Its failure to provide and maintain any safety appliances and first aid kits with proper resuscitation equipment for life saving purposes; (c) Its failure and neglect to have someone on duty at the pool for purposes of keeping a watchful eye over bathers, and particularly the Plaintiff's son; (d) Its failure to have a lifeguard or other competent attendant, properly instructed in the art and method of retrieving drowning persons or in the art of life saving and artificial resuscitation; (e) Its failure to maintain a telephone at or near the swimming pool for the use of the tenants, and particularly Plaintiff herein, with which to summon emergency help. 12. Defendant's violations of the DeKalb County Ordinance, recited heretofore, was wilful and malicious and Plaintiff shows the following in support of said allegation: (a) Defendant is a large insurance company, with full and complete knowledge and data regarding the risks and probabilities of occurrences such as the incident herein pled; (b) That despite such knowledge and information, the Defendant has failed to abide by the laws of the County of DeKalb County Georgia, has failed and refused to maintain lifeguards, attendants, life saving equipment and resuscitating equipment at their pool, all to the detriment of the general public, and more particularly to the Plaintiff and her son; (c) Said conduct by the Defendant, being in derogation of the laws of Georgia, constitutes negligence, per se; (d) Defendant, being a large insurance company, and fully knowledgeable of the risks and probabilities of swimming pool deaths, has opted to spread the risk of such incidents upon the general public rather than go to the expense of maintaining proper safeguards which would go towards eliminating such deaths; (e) Subsequent to the death by drowning of Plaintiff's son, Defendant failed and refused to maintain either lifeguards, attendants, life saving or resuscitating equipment and continues to fail to do so.' Paragraph 10A attached a printed copy of a publication entitled 'Public Swimming Pools-Recommended Standards of the Georgia Department of Public Health.' Paragraph 13 alleged wilful, malicious and wanton negligence primarily based upon alleged violations of the DeKalb County ordinance, and sought punitive damages in the amount of $1,000,000, plus reasonable attorney fees of $350,000. Paragraph (c) of the prayers also prayed for recovery of this amount. This prayer, together with the allegations in paragraph 13 that the plaintiff is entitled to punitive damages in the amount of $1,000,000, plus reasonable attorney fees of $350,000, were stricken. The portions of the other paragraphs stricken pursuant to the motion to strike have been italicized.

The evidence adduced on the motion for summary judgment showed substantially the following facts: Appellant insurance company owns and operates the Beacon Hill Apartments in DeKalb County, Georgia, which complex includes a swimming pool. On July 3, 1973, Mrs. Pauline McGivern and her husband, Mr. Charles R. McGivern, the cross appellants, were seated in chairs in the vicinity of the pool talking to a Mr. Driver and other residents while the McGivern children and others played in the pool. Subsequently, an unidentified child approached the McGiverns and remarked that their son, Arthur, age 12, had been lying face down in the water for quite a while. Because Arthur was given to testing his endurance by holding his breath under water in that manner, Mr. McGivern and Mr. Driver walked to the end of the pool where Arthur was observed floating face down in the water. They watched Artie for 'an inordinant length' of time before Mr. McGivern jumped in the water and swam underneath his son to take a look. He came back up and yelled. With Mr. Driver's assistance, the boy was pulled from the pool. He was not breathing and had a bluish complexion. Mr. Driver and a Mr. Collins tried both artificial respiration and mouth-to-mouth resuscitation. Someone obtained a mechanical resuscitator, but no one knew how to use it. The police, who had been summoned, arrived some 10 to 12 minutes after the boy was taken from the pool and also tried unsuccessfully to restore breathing. The boy was taken to a hospital and pronounced dead. Held:

1. Appellant, Northwestern Mutual, complains that the trial court erred in finding that the swimming pool in the instant case is a semi-public pool and governed by the Code of DeKalb County, State of Georgia, Section 189, et seq., which requires certain standards be met if 'a public, semi-public or institutional swimming pool is operated.' From the factual recitation in the pleadings, both the public and institutional categories are excluded. Appellant urges that the prefix 'semi' in the ordinance has no meaning of sufficient certainty so as to advise citizens of what course of conduct they must follow in regard to the intendment of the Code, id., in relation to swimming pools. We agree only that some of the language in the ordinance is not plain; it does not have an exact or concrete meaning. The language, therefore, needs interpretation. Carroll v. Ragsdale, 192 Ga. 118, 120, 15 S.E.2d 210; Oxford v. Carter, 216 Ga. 821, 822, 120 S.E.2d 298. In determining the meaning of an ordinance, the court is bound by the rules of statutory construction. An ordinance intended to promote the public safety should receive a reasonable and practical interpretation to that end. Smeltzer v. Atlanta Coach Co., 44 Ga.App. 53, 56, 160 S.E. 665. In our present affluent society a swimming pool is as much a demanded part of a motel, hotel or modern apartment complex accommodations as is a television set, air conditioning, or adequate parking facilities....