Stewart v. Harvard

Citation520 S.E.2d 752,239 Ga. App. 388
Decision Date14 July 1999
Docket Number No. A99A0635., No. A99A0634
PartiesSTEWART v. HARVARD et al. Sidre v. Harvard et al.
CourtUnited States Court of Appeals (Georgia)

OPINION TEXT STARTS HERE

Gray, Hedrick & Edenfield, L. Bruce Hedrick, Atlanta, for appellants (case no. A99A0634).

Kenneth C. Pollock, Atlanta, for appellant (case no. A99A0635).

Mills, Moraitakis & Kushel, Nicholas C. Moraitakis, Atlanta, for appellees. ANDREWS, Presiding Judge.

We granted interlocutory appeals in these two cases to consider whether Stewart, the homeowner and fiancé of Sidre, Jr., and Sidre, Jr., father of Louis Sidre III (hereinafter Louis), should have been granted summary judgment on the Harvards' negligence, attractive nuisance, and premises liability claims against her1 and negligence and wrongful death claims against him arising from the unfortunate death of the Harvards' son, Scott, in a fire caused by Louis and Scott playing with matches while Stewart and Sidre, Jr. were away from the home.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). If a defendant, as the moving party, shows that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a genuine issue as to any essential element of the plaintiff's claim, then the plaintiff, as the nonmoving party, cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. (Emphasis supplied.) Id. In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Eastside Properties v. Dept. of Transp., 231 Ga.App. 217, 498 S.E.2d 769 (1998).

(Punctuation omitted; emphasis in original.) Phillips v. Key Svcs., 235 Ga.App. 564-565, 510 S.E.2d 304 (1998).

So viewed, the evidence was that Stewart and Sidre, Jr. became engaged in July 1995. Sidre, Jr. and his ten-year-old son, Louis, of whom Sidre, Jr. had custody, had been living without charge with Stewart in her home since August 1995. The two-bedroom house was titled in Stewart's name, and there were no common financial arrangements between Stewart and Sidre, Jr. Stewart's son by a prior marriage, Steven, was 22 and also lived in the house. He occupied one bedroom, Sidre, Jr. and Stewart the other, and Louis slept in a partitioned area of the dining room. Steven Stewart worked as an electrician, generally leaving the house around 7:00 a.m. and returning around 6:00 p.m.

The Harvards lived in the same neighborhood, and their son, Scott, met Louis in 1995 while playing in the neighborhood, and the two boys became friends. Scott was two years younger than Louis. The boys played together regularly, and Scott had spent the night with Louis on several occasions. Sidre, Jr. had taken both boys to the World Series in 1995. On that occasion, Mr. Harvard brought Scott over and visited briefly. He had also been in the house on other occasions. During these visits, Mr. Harvard noticed a Bic type lighter on the kitchen counter, although its presence did not concern him at the time. Mrs. Harvard had also been in the Stewart home numerous times and knew Stewart smoked.

During the Christmas/New Year's holiday 1995, Louis had spent time with his mother, but had returned to Stewart and Sidre, Jr.'s house on New Year's Eve. Scott spent most of the holiday with Louis, who was not to return to school until January 3, 1996.

The Stewarts and the Sidres had put up a natural Christmas tree in the living room, and Stewart checked the tree every evening and watered it as needed. Although it had been her custom to take the tree down on New Year's Day, the Sidres usually did it on January 6. Stewart deposed that since the tree was still healthy and not dried out, she agreed for it to stay up until the sixth.

Mr. Harvard had been in Stewart's home a week or week and a half prior to January 2, and the tree "looked in good, great shape at the time I was there. It was in excellent shape."

Nonetheless, because Louis deposed that the tree, once it began to burn, burned real fast "because it was very dry, but it still had water in it but it was just dry at the time," we consider the issues based on the assumption that the tree was dry. Lau's Corp., supra.

On Tuesday, January 2, 1996, Stewart left for work around 8:00 a.m. Before she left, she was aware that Louis did not have to attend school that day and did not want to go to day care. Stewart had told Sidre, Jr. that, in her opinion, Louis should go to Kindercare, where Sidre, Jr. had prepaid for after school and other services. Although Stewart assisted Louis with his homework and other things, Sidre, Jr. took charge of anything to do with Louis and had told her not to discipline him.

When Stewart left, the issue of whether Louis would attend day care had not been resolved. After she left, Sidre, Jr. had decided to take Louis to day care, but Louis prevailed upon his father to allow him to stay home by himself. As Sidre, Jr. deposed, "I just made a decision off the cuff" and allowed Louis to stay. It was, according to Sidre, Jr., "my decision for him to stay home alone that day. And that was my decision at that time, but I gave him rules." Louis was not to have anyone else come into the house and had to remain near a phone so that Sidre, Jr. could call and check on him.

Mr. and Mrs. Harvard were both ill with a virus that day. Louis called Mrs. Harvard and asked if Scott could come and play with him. About an hour later, Louis came by the Harvard home and "begged" for Scott to come out and play. The Harvards allowed Scott to go and play, and the boys played outside and were seen by Mr. Harvard riding bikes and playing during the day. Neither Harvard inquired of Louis as to whether any adult was at the Stewart home that day. Mr. Harvard said that, sometime prior to January 2, Sidre, Jr. and Stewart had come to ask if Scott could visit with Louis while they went out with some friends. When asked about supervision, Sidre, Jr. assured the Harvards that, when he and Stewart were not there, Stewart's son, who was over 21, was there. According to the Harvards, this assurance is why neither of them specifically inquired of Louis regarding adult supervision on January 2. Neither Harvard had ever been introduced to Stewart's son, but had waved to him when they saw him in the yard.

Between 10:00 a.m. and 4:00 p.m., when Mr. and Mrs. Harvard spoke with Scott when he telephoned from the Stewart home, neither of them had spoken with Scott or attempted to contact anyone at the Stewart home. When Scott called at 4:00 p.m., his father gave him permission to stay another hour and told him to come home by dark. According to his mother, Scott knew that if no adult were present when he visited, he was not supposed to go inside.

Sidre, Jr. had talked to Louis by phone six or seven times during the day. When he spoke to him around 1:00 p.m., Louis told his father that Scott had come over. Sidre, Jr. told his son that they could play outside, but not to go inside. Sidre, Jr. called again at 2:30 p.m. and spoke with his son.

Louis was aware that he was not supposed to have anybody in the house when he was there alone, but he "figured my dad would call and maybe he would say it was all right." When his father called at 2:30 p.m., Louis told him that he and Scott had finished playing with the remote controlled cars outside and "we're going to watch a movie." Sidre, Jr. did not tell his son to make Scott leave.

After the boys watched part of a movie, they started wandering around the house, and one of them spotted the matchbook in the kitchen around the sink area. As Louis testified, "I don't know who spotted them really but, you know—and then I guess we both just got this idea to strike them or whatever, and like to see who could hold them the longest or whatever." Louis reached up onto the counter and got the matches, and the two boys began striking them, seeing which one could hold the match longest "until you could feel the heat." Then, they would blow them out.

They proceeded to strike the matches, moving into the living room where the tree was located. Because some of the matches were "soft," some were struck after they had broken and the boys had to hold them right by the tip in order to strike them. One of these matches was lit, and "it went into the tree but we didn't know that; we just thought it ripped; we didn't know part of the match had light [sic], and it had just went right into the tree." Louis and Scott had also gotten a can of hair spray, and Scott was spraying it around, including in the living room, about four or five feet from the Christmas tree.

The boys did not know the tree was on fire until it began to smoke and three branches ignited. The boys initially attempted to put the fire out by throwing two bowls of water on it. Louis then tried to use a home fire extinguisher, but either he used it improperly or it malfunctioned.

Because Louis had locked the double-keyed dead bolt lock when the boys came in the house, the door to the carport could not be opened without the key. Louis had placed it on the couch in the living room but, due to panic, spent 15 or 25 seconds hunting for it. Although he found the key and the two boys went into the kitchen, by this time the smoke was already down to the dead bolt lock and Louis was unable to get the door open.

Louis then crawled on his belly into a bedroom, believing that Scott was crawling behind him. When he reached a window, he looked back and Scott was not there. He called for him, but to no avail. Scott was later found under a bed in the other bedroom and had died of...

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  • Torts - Deron R. Hicks and Travis C. Hargrove
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 61-1, September 2009
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