Whitehead v. Green

• Decision Date: 17 October 2022
• Docket Number: A22A0797, A22A0798
• Parties: WHITEHEAD et al. v. GREEN et al. White Pools, Inc. v. Green et al.
• Court: Georgia Court of Appeals

365 Ga.App. 610

879 S.E.2d 698

WHITEHEAD et al.

v.GREEN et al.

White Pools, Inc.

v.Green et al.

A22A0797, A22A0798

Court of Appeals of Georgia.

October 17, 2022

Thomas Eugene Brennan, Reynolds Eugene Pitts Jr., Fain Major & Brennan, Atlanta; Matthew lan Dowling, William Thomas Mitchell, Cruser Mitchell Novitz Sanchez Gaston & Zimet, for Appellants (Case No. A22A0797).

Claire Alexandrea Williamson, Brad Christopher Parrott, Hudson Lambert Parrott Walker, Atlanta, for Appellant (Case No. A22A0798).

J. Darren Summerville, Meredith Charlotte Kincaid, Meghan H. Yanacek, Anna Green Cross, Jonathan David Flack, The Summerville Firm; Adam P. Princenthal, Matthew Todd Wilson, Princenthal May & Wilson, for Appellees.

Dillard, Presiding Judge.

This case involves consolidated appeals—Case Nos. A22A0797 and A22A0798—that come to us by way of granted interlocutory applications.

In Case No. A22A0797, Tahir and Shannon Whitehead appeal from the trial court's denial of their motion for summary judgment in a wrongful-death action brought by Ebony Green, as the parent of Tamira Green (a deceased minor) and administrator of the child's estate. Specifically, the Whiteheads argue the trial court erred in (1) denying their motion for summary judgment when there were no genuine issues of material fact, and (2) denying their motion to strike testimony from Green's expert witnesses.

In Case No. A22A0798, White Pools, Inc. appeals from the trial court's denial of its motion for summary judgment in the same action brought by Ebony Green. In doing so, White Pools—the company that built the Whiteheads’ pool—argues the trial court erred in denying its motion for summary judgment when (1) Green did not establish there were industry standards creating a duty to warn, educate, or inform a homeowner as to certain information; (2) there was no evidence that certain features of the Whiteheads’ pool caused Tamira's injury; (3) the pool was not a product subject to strict liability; (4) there is no duty to warn of specific dangers associated with a product for which the dangers are open and obvious; (5) there was no evidence that a failure to warn more likely caused Tamira's injuries; (6) it is not the manufacturer of one of the pool's features; and (7) it did not undertake to instruct the Whiteheads on general pool safety; and the trial court erred in admitting testimony from Green's expert witnesses when (8) the experts were not properly qualified to give their opinions; and (9) the opinions were unreliable for a number of reasons.

For the reasons set forth infra , we reverse in both cases.

Viewed in the light most favorable to Green (i.e. , the nonmovant),¹ the record shows that on July 3, 2017, the Whiteheads hosted an Independence Day party, during which they also celebrated the birthday of a family friend, Vanessa Davis. Davis—with the Whiteheads’ permission—invited some relatives to the party, including Rolinda and Bernard Bond, who did not know the Whiteheads and had never been to their home before.

The Bonds brought their 4-year-old granddaughter, Tamira Green, to the party with her swimsuit in anticipation of there being some form of water activities for children. The Bonds were both aware that Tamira did not know how to swim, and when they arrived, they asked another relative, Jaida Davis, if Tamira could get into the Whiteheads’ pool with her and her baby niece. It is undisputed that Rolinda and Bernard also did not know how to swim and had no intention of getting into the pool.

When Jaida agreed to watch Tamira, the Bonds began to socialize with other guests, with Rolinda moving into the house and Bernard remaining outside in a nearby seating area while Tamira sat beside Jaida on the edge of the pool. After a while, Rolinda saw Jaida come into the house and asked where Tamira was, to which Jaida responded that she did not know. Rolinda then began looking for her granddaughter throughout the party and its many activities, which included an inflatable bouncy house for children; but she could not find Tamira. Rolinda then noticed another guest carrying a small child out of the pool and realized it was her granddaughter. Tragically, despite all best efforts (including CPR), being transported to a hospital,² and spending several days on life support, Tamira never regained consciousness and was pronounced dead on July 6, 2017.

Bernard could not recall seeing Jaida leave the pool area or speaking with her again after initially asking her to watch Tamira, and he did not realize anything was amiss until his wife informed him that Tamira drowned. A video from a surveillance camera positioned over the Whiteheads’ back yard shows Jaida exit the pool with her baby niece and pause for several seconds within feet of Bernard to speak with him before leaving the area. And according to a police report filed after the incident, Jaida informed Bernard that she was leaving the pool so he would watch Tamira in her absence.

In the surveillance video, Bernard is standing beside the pool when he is approached by Jaida. He then looks at Tamira, who is on or near the pool's tanning shelf, before walking away. Within seconds of Bernard turning and walking away, Tamira fully enters the pool and slips beneath the water. Although she attempts to resurface—her arms below the water and face barely breaking through each time³ —she travels further into the pool; and less than one minute later, she slips under the water for the last time. All of this occurs while other children play and swim around her, and no fewer than four adults sit just feet away from the pool's edge, eating and socializing. But despite the large number of guests who were in the pool area (sitting along its edge or congregating nearby), Tamira was not discovered until 13 minutes after her struggle to resurface—when a swimmer's leg bumped into her body at the bottom of the pool, at which point she was pulled from the water.

An investigation by the local sheriff's office concluded that Bernard "failed to supervis[e]" Tamira. Ebony Green—Tamira's mother—told law enforcement that she did not wish to press charges against Bernard, her stepfather; but she thereafter filed a wrongful death action against the Whiteheads and White Pools—the company that built the Whiteheads’ pool⁴ —on behalf of her daughter's estate. Both the Whiteheads and White Pools proceeded to file motions for summary judgment and motions to strike testimony from Green's experts.

Following a hearing, the trial court denied the Whiteheads’ motion for summary judgment, concluding that genuine issues of material fact remained as to whether they breached a duty of care to warn guests of a hidden hazard—i.e. , that certain features of their pool could obscure objects at the bottom, and whether they breached a duty they voluntarily assumed by announcing flotation devices for use but failing to identify non-swimmers and provide them with such protection. The court further concluded there were genuine issues of material fact as to causation and rejected the Whiteheads’ contention that the lack of supervision by the child's grandparents was to blame when expert testimony suggested that, in the absence of the pool-design features selected by the Whiteheads, the child would have been noticed by other guests.

Likewise, the trial court denied the Whiteheads and White Pools's motions to strike the testimony of Green's expert witnesses, Dr. Thomas Griffiths and Dr. Gerald Dworkin, as to the pool's features, visibility, drowning risks, and applicable standards of care. The court rejected White Pools's contention that the experts lacked proper qualifications to render their opinions. It also rejected the assertion that the experts’ opinions were unreliable. But as to both the Whiteheads and White Pools, the trial court granted certificates of immediate review. We then granted their applications for interlocutory appeal, and these consolidated appeals follow.

Summary judgment is, of course, proper when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law."⁵ Furthermore, a de novo standard of review "applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant."⁶ Finally, at the summary-judgment stage, we do not "resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution."⁷ With these guiding principles in mind, we turn now to the enumerations of error in each appeal.

1. Case No. A22A0797 .

(a) For starters, the Whiteheads argue the trial court erred in denying their motion for summary judgment when there were no genuine issues of material fact as to whether they were negligent. We agree.

The essential elements of a negligence claim are "the existence of a legal duty; breach of that duty; a causal connection between the defendant's conduct and the plaintiff's injury; and damages."⁸ As a result, we must first identify the duty of care the Whiteheads owed to Tamira, which is the threshold issue in causes of action for negligence.⁹

As a social guest in the Whiteheads’ home, Tamira was a licensee.¹⁰ And a property owner incurs liability for breaching a duty to a licensee "only for wilfully or wantonly allowing a dangerous static condition ... to cause [her] injuries."¹¹ In other words, under Georgia law, a property owner owes a licensee a duty not to wilfully and wantonly injure her, and the property owner cannot knowingly let a licensee run upon a hidden peril on the premises or wilfully cause her harm.¹² Additionally, "wanton conduct" has been defined as "that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent to do harm or inflict injury."¹³

But importantly, a property owner must actually know about...