Sayed v. Azizullah, A99A0642.

• Citation: 519 S.E.2d 732,238 Ga. App. 642
• Decision Date: 23 June 1999
• Docket Number: No. A99A0642.,A99A0642.
• Parties: SAYED et al. v. AZIZULLAH.
• Court: United States Court of Appeals (Georgia)

519 S.E.2d 732

238 Ga. App. 642

SAYED et al. v. AZIZULLAH.

No. A99A0642.

Court of Appeals of Georgia.

June 23, 1999.

Certiorari Denied October 22, 1999.

Maurice J. Bernard III, Atlanta, for appellants.

Gray, Hedrick & Edenfield, L. Bruce Hedrick, Atlanta, for appellee.

SMITH, Judge.

During a family outing, 17-year-old Tariq Sayed drowned at a public park on Lake Lanier. Said and Latifa Sayed, Tariq's parents, brought this action against their nephew, Haroon Azizullah, who was with his younger cousin Tariq in the water some time before he drowned.¹ The trial court found that Tariq was "a healthy seventeen year old male of normal intelligence" and "understood and appreciated the dangers of swimming" and that "as a matter of law he assumed the risk of danger by voluntarily going swimming in a lake without using any flotation devices whatsoever." The trial court also found that no implied contract existed between the two cousins "to provide a buddy system when they went swimming together" and granted Azizullah's motion for summary judgment on both grounds. Because we agree with the trial court that Tariq voluntarily assumed the risk of swimming in the lake, we affirm on that basis and do not reach the issue of any duty owed to Tariq. After Azizullah arrived at the family gathering, Tariq asked him to go swimming and he agreed. Azizullah asked Tariq if he could swim, and he replied that he could and had learned at his local community swimming pool. Tariq also asked and was given permission by his father to swim. But they did not swim at the designated swimming area or beach, which had been pointed out to Tariq earlier by his father; they entered the water from the shore below the picnic area, where a number of children were already in the water. Tariq did not use a life jacket or other flotation device.

According to Azizullah, the area was crowded and muddy, and he decided to swim out into cleaner water, but Tariq responded, "Well, I'm going to stay right here because it's up to my waist, I don't know how to swim that well and I don't want to drown and I don't want to get tired, so I'm going to stay right here." Azizullah swam about 30 or 40 feet further out, and returned to shore in about 15 minutes. As he returned to shore, he was not looking for Tariq and did not see him. Later, as it began to grow dark, Tariq's sisters asked where he was, and a search began. About two hours later, divers located Tariq's body.

The Sayeds offered in evidence an accident investigation report completed by a park ranger and differing somewhat from Azizullah's deposition testimony. The ranger testified by affidavit, and the narrative portion of the report indicates, that Azizullah and Tariq "began swimming away from the sandy beach out into the main part of the lake. The witness stated that the victim said he was too tired to swim out any farther and was going to head back to shore. The witness never looked back to verify that the victim made it back to shore." Tariq's body was recovered in 21 feet of water approximately 30 feet off shore.

While the Sayeds contend that the report suggests Tariq and Azizullah were in deeper water when their conversation took place, no evidence was presented that Tariq intended only to wade and not to swim. He was given permission to swim by his father and told Azizullah that he could swim and had learned at his community pool.

The Sayeds argue that Azizullah allowed Tariq to swim with him, knew Tariq was in a dangerous situation, and breached an obligation to care for Tariq. But according to Azizullah, Tariq never indicated by words or actions that he was in distress, in danger of drowning, needed assistance in returning to shore, or anything other than that he was simply "tired" and intended to return to shore. The Sayeds testified that they had no information contradicting this. The Sayeds also acknowledged below that no express agreement existed for Azizullah to care for or act as a lifeguard for Tariq. But on appeal they contend that by acceding to Tariq's request to swim with him, Azizullah made an "implied" promise to look after him. We do not reach the issue of any duty owed to Tariq, however, because we agree with the trial court that Tariq appreciated the risks of swimming in the lake and voluntarily assumed them.

Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one's own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be

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