Poston v. Vanderlee, 55025
| Decision Date | 31 January 1978 |
| Docket Number | No. 1,No. 55025,55025,1 |
| Citation | 144 Ga.App. 833,242 S.E.2d 727 |
| Parties | J. W. POSTON v. Pamela VANDERLEE, Administratrix, et al |
| Court | Georgia Court of Appeals |
Long, Weinberg, Ansley & Wheeler, Meade Burns, Michael T. Bennett, Marietta, for appellant.
Phillips, Hart & Mozley, J. Arthur Mozley, Donald R. Andersen, Atlanta, for appellees.
Appellees-plaintiffs brought suit against appellant-defendant landowner for the death of their three-year-old son.
We granted this application for interlocutory review to consider the trial court's denial of appellant's motion for summary judgment. We find that the defendant, as a matter of law, was entitled to summary judgment in his favor and, accordingly, reverse the denial of summary judgment.
The evidence submitted, both in support of and in opposition to the motion for summary judgment, construed most favorably to appellees (who oppose the motion), established that appellees' three-year-old son died by drowning in appellant's swimming pool, apparently while trying to retrieve a plaything that was thrown into appellant's yard; that the child lived in the neighborhood; that appellant was aware that small children lived in the neighborhood and played in various yards; that appellant's swimming pool was unfenced, but was above ground; that a removable ladder provided the only access to the deck surrounding the pool; and that on the day of this most unfortunate occurrence the ladder had not been removed.
While this court is sympathetic to the great loss suffered by the bereaved parents, under the facts of this case, appellees have failed to establish any duty owed which would provide a basis for actionable negligence. Handiboe v. McCarthy, 114 Ga.App. 541, 151 S.E.2d 905; Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82; Montega Corp. v. Grooms, 128 Ga.App. 333, 196 S.E.2d 459.
Accordingly, it was error to deny appellant's motion for summary judgment.
Judgment reversed.
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Gregory v. Johnson, 61183
...pools, and adhered to up to the present. Higginbotham v. Winborn, 135 Ga.App. 753, 756, 218 S.E.2d 917 (1975); Poston v. Vanderlee, 144 Ga.App. 833, 242 S.E.2d 727 (1978); Odom v. Lee, 145 Ga.App. 304, 243 S.E.2d 699 (1978); Oliver v. City of Atlanta, 147 Ga.App. 790, 250 S.E.2d 519 (1978).......
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Wren v. Harrison
...appellees have failed to establish any duty owed which would provide a basis for actionable negligence. [Cits.]" Poston v. Vanderlee, 144 Ga.App. 833, 242 S.E.2d 727 (1978). Accord, Strickland v. ITT Rayonier, supra; Shuman v. Mashburn, supra. Therefore, the allegations of the complaint tha......
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Gregory v. Johnson
...the attractive nuisance theory does not apply to water hazards was expanded to include residential swimming pools. Poston v. Vanderlee, 144 Ga.App. 833, 242 S.E.2d 727 (1978). In Poston, a three year old was found drowned in a pool maintained by a neighbor. The unfenced pool was above groun......
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Oliver v. City of Atlanta
...a trespasser to whom no duty was breached; summary judgment in favor of the City of Atlanta was therefore demanded. Poston v. Vanderlee, 144 Ga.App. 833, 242 S.E.2d 727; Odom v. Lee, 145 Ga.App. 304, 243 S.E.2d Judgment affirmed. BELL, C. J., and SHULMAN, J., concur. ...