Spivey v. Vaughn, 73031
| Decision Date | 10 March 1987 |
| Docket Number | No. 73031,73031 |
| Citation | 182 Ga.App. 91,354 S.E.2d 870 |
| Parties | SPIVEY et al. v. VAUGHN. |
| Court | Georgia Court of Appeals |
Arthur H. Glaser, G. Randall Moody, Atlanta, for appellants.
Gilchrist M. Gibson, Decatur, Palmer H. Ansley, Atlanta, A.J. Welch, Jr., McDonough, David P. Winkle, Jonesboro, for appellees.
Appellee's decedent was fatally injured when he fell and struck a piling while waterskiing. Appellants are father and son, the owner and operator, respectively, of the motorboat behind which the decedent was skiing at the time he sustained the fatal injury. Appellants sought and were granted the right to file an interlocutory appeal from the trial court's denial of their motion for summary judgment.
Appellants maintain they are entitled to summary judgment because the decedent assumed the risk of injury. It is undisputed that appellee's decedent was an excellent waterskier, a proficient slalom skier, and had, prior to his fall, both skied and operated the motorboat in the area of the accident. Appellant/driver of the boat and a passenger (now married to appellant/driver) were deposed and stated that the decedent, immediately prior to his fatal fall, was slalom skiing, crisscrossing the boat's wake. On his last maneuver before his fall, he came from the left rear of the boat, crossed the wake to the right rear of the boat where he lost his balance, fell, and tumbled into the pilings. Appellant/driver testified that the pilings could be seen prior to the accident and the waves were not breaking over the top of the pilings. The passenger testified that she had had no difficulty seeing the pilings. Both witnesses stated the day was sunny or a little overcast and windy, causing the water to be rough or choppy. A man who had previously skied with both the decedent and appellant/driver executed an affidavit in which he swore that the decedent appeared to know what he was doing while executing ski maneuvers, and that the decedent had displayed his ability to ski in a variety of water conditions, including choppy water.
The question presented to this court is whether the record presents facts so plain and palpable that they demand a finding by the court as a matter of law that the decedent "had some actual knowledge of the danger; that he understood and appreciated the risk therefrom, and that he voluntarily exposed himself to such risk." Abee v. Stone Mtn. Memorial Assn., 169 Ga.App. 167(1), 312 S.E.2d 142 (1983). "It is axiomatic that issues of negligence, assumption of risk, contributory negligence, and comparative negligence are not susceptible of summary adjudication except in plain, palpable and indisputable cases." Malvarez v. Ga. Power Co., 166 Ga.App. 498(2), 304 S.E.2d 542 (1983). In the case at bar, the threshold question is whether the decedent had actual knowledge of the pilings. In his deposition, appellant/driver testified that it appeared to him that the decedent was aware of the pilings. In opposition to appellants' motion for summary judgment, appellee filed the affidavit of a "water safety expert" who opined that the decedent "did not have knowledge of the pilings and did not understand and appreciate the risk immediately prior to being injured because of the rough water conditions, the speed of the boat and the speed of the skier himself." Pretermitting any discussion on the necessity of expert testimony, the conclusory nature of the expert's averments, and the basis for the expert's conclusion, is our concern that the facts of this case are not worthy of summary adjudication. While appellants have presented evidence from which a jury could conclude that the decedent was aware of the existence of the pilings, they have not been able to prove that plainly, palpably, and indisputably the decedent was in fact aware of the pilings.
Appellants maintain that the pilings were open and obvious and insist that the decedent is charged or bound with notice of their presence. We cannot agree. We cannot, as a matter of law, charge the decedent with actual knowledge of the hazard on evidence that appellant/driver and his passenger saw it and the driver believed the decedent to be aware of the hazard. Again, while a factfinder is entitled to conclude from this evidence that the...
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