Walker v. Daniels

• Decision Date: 31 May 1991
• Docket Number: No. A91A0272,A91A0272
• Citation: 407 S.E.2d 70,200 Ga.App. 150
• Parties: , 69 Ed. Law Rep. 602 WALKER, et al. v. DANIELS, et al.
• Court: Georgia Court of Appeals

Page 70

407 S.E.2d 70

200 Ga.App. 150, 69 Ed. Law Rep. 602

WALKER, et al. v. DANIELS, et al.

No. A91A0272.

Court of Appeals of Georgia.

May 31, 1991.

Rehearing Denied June 25, 1991.

Michael J. Bowers, Atty. Gen., H. Perry Michael, Executive Asst. Atty. Gen., Michael E. Hobbs, Alfred L. Evans, Jr., Senior Asst. Attys. Gen., for appellants.

William J. Murray, D. Joy Handelman, for appellees.

BEASLEY, Judge.

Plaintiff-appellees, the surviving parents of Felder Gene Daniels, Jr., instituted this wrongful death action against the Board of Regents of the University System of Georgia and various of its agents and employees. The decedent, a student at Fort Valley State College, drowned while participating in a recreational swimming event at the college. Plaintiffs allege that the combined and individual negligent acts of defendants were the proximate cause of death. The jury returned a verdict for appellees in the amount of $1,500,000.

We start with the following principles. The inquiry on appeal after the denial of a motion for directed verdict or judgment n.o.v. is whether there is any evidence to support the verdict. Stone v. Cook, 190 Ga.App. 11, 12(1), 378 S.E.2d 142 (1989). "Whenever a consideration of evidence is involved in a determination of whether there is error as alleged it must be remembered that '(a)fter the verdict, the testimony is construed in its most favorable light to the prevailing party ... for every presumption and inference is in favor of the verdict.' [Cits.]" Young Men's Christian Assn. v. Bailey, 112 Ga.App. 684, 690-691(1), 146 S.E.2d 324 (1965) (Bailey II ).

The decedent drowned in the school's indoor swimming pool, "the natatorium," on Monday, October 6, 1986, at the beginning of fall quarter. Recreational swimming, when held as an extracurricular activity for students, was held on Monday and Wednesday evenings.

Gerald Walker, Assistant Professor of Health & Physical Education, was the school's Water Safety Instructor. He was responsible for conducting swimming classes for students and for training and certifying lifeguards, two of whom were required to be present during extracurricular swimming events. On an annual basis, Dr. Thomas Palmer, the Vice President of Student Affairs, would contact Walker in order to confirm that there was adequate funding for recreational and instructional swimming activities. They would then enter into a written contract concerning such things as the scheduling of swimming events and the remuneration of student lifeguards. Under official school policy, Walker or his supervisor, Dr. Curtis Martin, Chairman of the Department of Health & Physical Education, was then required to fill out a written form authorizing the use of the school building, in this case the natatorium, at the specified date and time.

Walker had been absent from school during the summer quarter. When he returned to school during fall quarter, he had become interim football coach and his time was consumed by his coaching duties. As of October 6, Walker and Palmer had not entered into a contract for extracurricular swimming events. Nonetheless, notices of a recreational swimming event for students on the evening of October 6 were posted all over campus. Martin and Palmer agreed that since contract arrangements for such events had not been made for that school year, the swimming event should not be held.

However, as testified to by Oris Bryant, Jr., the Director of Campus Safety, there was a divergence between official policy and practice. The Department of Campus Safety would unlock a campus building at the request of individual students representing student organizations which had been authorized to use such building in the past. After the death, this practice was discontinued.

On the evening of October 6, a student lifeguard telephoned the campus police dispatcher requesting that the natatorium be opened. The dispatcher directed a campus police officer (Frank Jones) to open the pool. Calvin McDonald and Kim Holley, certified lifeguards who had supervised swimming activities at the campus pool in the past, provided lifeguarding services at the swimming event that night. Estimates of the number of students at the pool range from 15 to 19 at the beginning of the evening and 50 to 60 by the end.

Coach Walker had been involved all that day in coaching activities. He returned to the gymnasium/natatorium complex at approximately 8:00 or 8:30 p.m. He heard the clattering of the pool diving board and was alarmed, since he was unaware that a recreational swimming event was taking place. He went to investigate and was met by a student who engaged him in conversation for approximately two minutes. During their conversation, Coach Walker remained in an alcove from which he could see people diving and swimming in the area surrounding the diving board, but he could not see the remainder of the pool. After talking with the student, Coach Walker left the pool area to telephone either campus security or Dr. Martin to find out what was going on. As he was walking away from the pool, a student yelled to him and said there was a swimmer in distress in the pool. Approximately three minutes elapsed between Coach Walker's entry into the natatorium and his summons for a swimmer in distress.

During the recreational swim, lifeguard McDonald was posted in a stationary position on an elevated chair. His area of responsibility was the deep end of the pool. Holley was posted at the shallow end of the pool but also should have been roving. However, Holley was inattentive; he was grabbing and touching female swimmers and generally engaging in horseplay. McDonald left his position and walked to the shallow end of the pool to ask Holley to change places with him because he was not fulfilling his responsibilities where he was. He then walked back to his chair but on the way received word that a body had been discovered at the bottom of the pool.

An off-duty lifeguard standing on the high diving board observed what he initially thought to be a chair at the bottom of the deep end of the pool. He swam down to investigate and found the decedent, who was unconscious. Attempts at cardiopulmonary resuscitation by the lifeguards and then by emergency medical technicians were unsuccessful.

The autopsy report stated that the decedent's lungs were heavy with fluid and identified the cause of death as "Drowning secondary to blunt force trauma to neck." The death certificate identified the cause of death as "Accidental Drowning from Trauma to Neck," which was severe enough to cause hemorrhaging. A water safety expert witness for plaintiffs testified that the decedent had been under water for at least four to six minutes and that a drowning victim under water for that period of time generally can be resuscitated, because the heart continues to beat for several minutes after respiration stops. An underwater loss of consciousness could explain the absence of distress signals or surface struggle. Another hypothesis he gave is that a misstep at the edge of the pool caused the decedent to fall, hit his neck, and enter the water in an unconscious state.

McDonald testified that he did not observe the decedent enter the water from the deep end of the pool. The incline of the slope of the pool was sufficient to cause a helpless swimmer who had become submerged at the rope divider to roll down to the bottom of the slope into deeper water. The deep end of the pool extended 20 feet from the rope dividing the shallow and deep ends. The deepest portion is 12 feet, and this is where the decedent was found.

The Board of Regents of the University System of Georgia, Gerald Walker, Curtis Martin, Thomas Palmer, Oris Bryant, Jr., Frank Jones, Kim Holley, and Calvin McDonald were named as defendants.

Service of process on McDonald was never perfected. Martin's, Palmer's, and Jones' motions for summary judgment were granted. Walker's, Bryant's, and Holley's motions for summary judgment were denied, as was the Board's motion for contingent dismissal. The jury verdict was returned against Walker, Bryant, Holley, and the Board, and judgment was entered accordingly. Their motions for directed verdict, judgment notwithstanding the verdict, and new trial were denied. They all appeal.

Health and Physical Education Professor Walker and Director of Campus Safety Bryant contend that they owed no affirmative duty of care toward the swimmers in the pool; that even if they did owe the swimmers a duty, their actions were not negligent; and that even if they were negligent, their actions could not have been the proximate cause of the decedent's death. (Enumerations of error 1 and 2). ¹ Lifeguard Holley contends that any inattentiveness on his part could not have been the proximate cause of the victim's death. (Enumeration of error 3). The Board acknowledges that it would be vicariously liable if any of the individual defendants is adjudged liable, but that all were entitled to j.n.o.v. so that it has no contingent liability. (Enumeration of error 5).

1. "To state a cause of action for negligence in Georgia, the following elements are essential: '(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of duty.' Lee Street Auto Sales v. Warren, 102 Ga.App. 345(1) (116 SE2d 243) (1960)." Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982); OCGA §§ 51-1-1, 51-1-8.

Appellants Walker and Bryant argue that they owed no duty of care toward the decedent, since he was a capable adult swimmer voluntarily attending a recreational swim, albeit on-campus.

" 'The elements of legal liability of the owner or proprietor of premises...