Shuman v. Mashburn

• Decision Date: 07 January 1976
• Docket Number: No. 51263,No. 2,51263,2
• Citation: 223 S.E.2d 268,137 Ga.App. 231
• Parties: , 85 A.L.R.3d 741 P. M. SHUMAN v. J. M. MASHBURN, Jr., et al
• Court: Georgia Court of Appeals

Page 268

223 S.E.2d 268

137 Ga.App. 231, 85 A.L.R.3d 741

P. M. SHUMAN v. J. M. MASHBURN, Jr., et al.

No. 51263.

Court of Appeals of Georgia, Division No. 2.

Jan. 7, 1976.

Neely, Freeman & Hawkins, Edward H. Johnson, Edgar A. Neely, Jr., Atlanta, for appellant.

Rice & Hardy, Max B. Hardy, Jr., Atlanta, for appellees.

CLARK, Judge.

This is an appeal by defendant landowner from a denial of his motion for summary judgment in a suit alleging negligence in maintenance upon his premises of an above-ground plastic swimming pool. Appellees are husband and wife to whom we will refer in the singular as 'plaintiff' because the action is based upon injuries received by the husband when he dove from an adjacent roof into the pool.

Our recital of facts is condensed from the plaintiff's brief:

On August 31, 1974, a hot sunny day, plaintiff, a twenty-year-old male, visited defendant's home to collect for carpet-laying work he had previously done. While there he and his accompanying companion volunteered to do some roofing work upon defendant's back porch. Plaintiff changed into a pair of shorts borrowed from defendant, telling defendant 'that he might dive off the porch roof into the pool.' The edge of the roof was approximately one foot from the edge of a circular above-ground swimming pool in defendant's back yard. The porch roof was approximately 8 to 10 feet from the ground and approximately 4 to 5 feet from the top of the swimming pool sides.

Plaintiff, an expert diver, had seen the pool during previous visits but had never used it. He knew that the sides of the pool were approximately 5 feet high and that the water level in the pool could not be seen through the sides of the pool. After the incident he learned that the water level on that day was approximately one and one-half to two feet below the top of the pool. He did not look at the water level before commencement of work. '. . . When they looked at the pool after they (plaintiff and companion) were on the porch roof and before they had any alcoholic drinks, and again after appellee Joe M. Mashburn, Jr., was intoxicated, the pool looked to (them) like to was full of water. . . . The inside of the pool was blue in color, and the sunshine and the blue color on the inside of the swimming pool made the pool look to (plaintiff) like it was full of water when in fact it was not.'

Defendant provided rum drinks to plaintiff and his companion while they were at work. Although defendant disputes plaintiff's version as to the number of drinks and denies the defendant's knowledge of plaintiff's inebriation, we accept plaintiff's statements, as is required of the court in a summary judgment action. Plaintiff's affidavit avers: 'After I had approximately three or four of these rum drinks, Mark (defendant) and I had a conversation and I told him that I was intoxicated and Mark said to me that he agreed and could see that I was intoxicated, and after this conversation with Mark, Mark brought me a couple more rum drinks, which I drank, and these rum drinks made me even more intoxicated.' (R. 61).

The concluding paragraph of plaintiff's affidavit reads: '. . . when I finished my roofing work I said in a loud voice that could be heard by Mark (defendant), who was under the porch roof at the time, that I was going to dive into the pool, and then approximately one minute or so later I dived into the swimming pool and was injured.'

In seeking a reversal of the trial court's denial of his motion for summary judgment defendant-appellant submits the issues in the form of three questions. We use counsel's language in each division for our discussion.

1. Whether there is a duty under Georgia law imposed upon a defendant pool owner to warn of a condition which is or should be obvious? As the involved instrumentality was a swimming pool, we note the case of Herring v. Hauck, 118 Ga.App. 623, 165 S.E.2d 198. Plaintiff there was injured when he took a dive from a roof of an adjacent structure into a plastic pool with metal sides which was approximately 12 to 15 feet in diameter and designed to hold water to a depth or approximately 3 feet. This court affirmed the trial court's grant of a summary judgment for defendant with the headnote stating 'that defendant was guilty of no negligence.'

One of the allegations of negligence is the failure of defendant to warn plaintiff 'of the shallowness of said swimming pool.' (R. 5). Despite the absence of a master-servant relationship, the situation here is analogous to those cases where an employee sought to recover in common law negligence from a master on the basis of failure of the master to give the servant notice or warning of a danger incident to his employment. The courts have ruled that it must appear that the master knew or ought to have known of the danger and that the servant did not know and had no equal means with his master of knowing such fact and by the exercise of ordinary care could not have known of the hazards. If the danger is obvious and is as easily known to the servant as to the master the latter will not be liable for failing to warn plaintiff. See Dekle v. Todd, 132 Ga.App. 156, 207 S.E.2d 654, and citations therein.

This rule as to obvious danger applies also to invitees vis-a-vis landowners. Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 81 S.E.2d 721; Auerbach v. Padgett, 122 Ga.App. 79, 176 S.E.2d 193.

Plaintiff's failure to exercise the duty of ordinary care for his own safety is similar to that which resulted in this court sustaining a summary judgment for defendant in Simmons v. Classic City Beverages, Inc., 136 Ga.App. 150, 220 S.E.2d 734. There, in sustaining the grant of a summary judgment to defendant this court commented that 'The plaintiff went into the situation with his eyes wide open. He saw the whole picture; he had the opportunity to measure the risks, if any . . .'

Plaintiff's contention of 'optical illusion' does not excuse him from his negligent conduct. Since he was aware of the pool having a total height of five feet, the language of this court in the recent case of Lane v. Maxwell Brothers and Asbill Inc. 136 Ga.App. 712, 222 S.E.2d 184, is apropos: 'Being aware of the elevation, any deception or optical illusion which may have contributed to her injury was negated. Rich's, Inc. v. Waters, 129 Ga.App. 305, 199 S.E.2d 623, supra; Korn v. Tamiami Trail Tours, Inc., 108 Ga.App. 510, 133 S.E.2d 616. Appellant (plaintiff) was under a duty to use her (his) sight to discover any defects or dangers. Herschel McDaniel Funeral Home v. Hines, 124 Ga.App. 47, 183 S.E.2d 7.'

2. Whether a person who becomes voluntarily intoxicated is relieved of the duty placed upon him by the law of Georgia to exercise reasonable care for his own safety?

' In viewing the conduct of an intoxicated person, for the purpose of determining his negligence or contributory negligence, the state of mind produced by the intoxication may be disregarded; for he will be judged as if the conduct occurred while he was in possession of his normal mental capacity.' Seaboard Air-Line Ry. v. Chapman, 4 Ga.App. 706(1), 62 S.E. 488. See page 710, 62 S.E. of this opinion where the eminent Judge Powell succinctly stated, 'He must judge and act with the same skill and caution as if he were a sober person.' This is generally accepted law, as is pointed out by Dean Prosser in his hornbook entitled 'Law of Torts' (4th Ed.) page 154: 'The proper statement would seem to be that one who intentionally (or negligently) becomes intoxicated is held thereafter to the same standard of conduct as if he were sober.'

The standard is not altered by the complaint's allegation of negligence being 'the supply of mixed alcoholic drinks by the defendant to the plaintiff.' (R. 5). See Henry Grady Hotel Co. v. Sturgis, 70 Ga.App. 379, 28 S.E.2d 329.

Accordingly, plaintiff cannot avoid his duty to exercise ordinary care for his own safety with the excuse that defendant supplied him with alcoholic libations which he voluntarily imbibed.

3. Whether the last clear chance doctrine as it exists in Georgia is applicable to the instant case so as to allow a plaintiff who otherwise could not recover, to recover against the defendant in this cause?

Plaintiff contends that the last clear chance doctrine is applicable on the basis that defendant heard him state his intention to dive into the pool and thereupon had a duty to prevent him from doing so during the minute that intervened between his statement and his unfortunate act.

As defendant's counsel has stated the legal propositions showing the contrary to be the correct answer, we adopt these views from his brief without using quotation marks:

The courts in Georgia have stated the doctrine of last clear chance as follows:

It is only after one (the defendant) finds another (the plaintiff) who has negligently placed himself in a position of peril, and because of his (the plaintiff's) helplessness is unable to extricate himself from his position of peril, that the duty arises to use ordinary care to avoid injuring him (the plaintiff),' that the last clear chance or humanitarian doctrine becomes applicable. Southland Butane Gas Company v. Blackwell, 211 Ga. 665, 670, 88 S.E.2d 6, 10, conformed to 92 Ga.App. 288, 88 S.E.2d 424 (1955).

The principle has been found by the court to be incorporated into Code Ann. § 105-603 (See Atlantic C.L.R. Co. v. Coxwell, 93 Ga.App. 159, 91 S.E.2d 135 (1956)) which reads:

'If the plaintiff by...