Wren v. Harrison
Decision Date | 10 March 1983 |
Docket Number | 64993,Nos. 64966,s. 64966 |
Citation | 165 Ga.App. 847,303 S.E.2d 67 |
Parties | WREN v. HARRISON. WREN v. HARRISON et al. |
Court | Georgia Court of Appeals |
Robert P. Bleiberg, Atlanta, for appellant.
Michael L. Murphy, Bremen, for appellees.
These companion cases are a wrongful death action and accompanying suit for pain and suffering brought by the appellee/parents of a three-year-old drowning victim. Defendant/appellant's motion for summary judgment was denied and immediate review was granted pursuant to OCGA § 5-6-35 (former Code Ann. § 6-701.1).
Mr. and Mrs. Harrison and their three children were invited to a Fourth of July picnic at the home of Mrs. Harrison's uncle, appellant J.O. Wren. Mr. Wren's home was located on the shore of a lake known as Buchanan City Park Lake, or Lake Olympia, in Haralson County, Georgia, where he also had constructed and maintained a boat dock. These facilities were frequently utilized for recreational activities by Mr. Wren, his family and guests, including appellees. The dock was constructed without handrails or gangplanks for boarding boats moored thereto. The complaints alleged that a large cabinet in the center of the dock created an obstruction which prevented adequate supervision of children as they played on or around it; that an inadequate number of life preservers was provided and those available were not easily accessible; and that Mr. Wren knew or should have known that these conditions presented an unreasonable risk of harm to the victim, constituting "wilful and wanton negligence toward the deceased and said conduct proximately caused his death." Wren denied all allegations that the enumerated conditions created an unreasonable risk of harm, and asserted that the complaints failed to state a claim against him upon which relief could be granted. After discovery proceedings, Wren amended his answer to assert that the negligence of the parents themselves was the proximate cause of the child's death, and moved for summary judgment.
The evidence disclosed that after lunch Mr. and Mrs. Harrison left Mr. Wren in the house and took their children to the boat dock to play and swim with their young cousins. Only the oldest child, who could swim, was permitted in the water; the other children, including Dan, the deceased, played on the dock and in the boats tied there. Only one of these children wore a life preserver. When Mr. Harrison returned to the house to get Mrs. Harrison a soft drink, Dan asked to join his father and Mrs. Harrison helped him get out of the boat he was playing in. She watched Dan run about 100 feet towards the house, which was about 150 feet away, then sat back down in a lounge chair facing the water with her back to the house, watching the oldest child swim. Upon Mr. Harrison's return to the dock without Dan, a search ensued and the child's body was discovered floating between a boat and the dock. Mr. Harrison never saw Dan at the house and no one saw him alive after Mrs. Harrison watched him run to within 50 feet of the house. Even though Dan could not swim and had never taken swimming lessons, he was not wearing a life preserver while playing on and around the dock. No one knew how Dan drowned. Mrs. Harrison thought she could have heard Dan if he had come back on the dock, although the cabinet obstructed her view while she was seated.
We note initially that the attractive nuisance theory of recovery does not apply to natural ponds or water hazards, which distinguishes this case from those involving unfenced swimming pools located in areas where uninvited children are known to play. See Gregory v. Johnson, 249 Ga. 151, 289 S.E.2d 232 (1982) and cases cited therein. Moreover, it is clear from the evidence that the Harrisons and their children were social guests of Mr. Wren on the day in question. " Laurens v. Rush, 116 Ga.App. 65, 66-67, 156 S.E.2d 482 (1967); OCGA § 51-3-2 (former Code Ann. § 105-402). See also Frankel v. Antman, 157 Ga.App. 26, 276 S.E.2d 87 (1981).
Higginbotham v. Winborn, 135 Ga.App. 753, 756, 218 S.E.2d 917 (1975). " 'A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if ... he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved ...' [Cit.]" London Iron & c. Co. v. Abney, 245 Ga. 759, 761(2), 267 S.E.2d 214 (1980). This rule, of course, presupposes that the licensees do not know or have reason to know of the risks involved. See Strickland v. ITT Rayonier, 162 Ga.App. 317(2), 291 S.E.2d 396 (1982); Shuman v. Mashburn, 137 Ga.App. 231(1), 223 S.E.2d 268 (1976); Herring v. Hauck, 118 Ga.App. 623, 165 S.E.2d 198 (1968).
Appellees admitted that they had visited Mr. Wren's house and used the dock on many occasions, knew that the dock had no handrails and that from some positions the cabinet partially obstructed the view of the house and boats. Nevertheless, they insist (for the first time on this appeal) that these circumstances constituted a mantrap as to a young child, "and the owner's duty to apprise and alert him ... thereafter attached." We cannot agree. George R. Lane & Assoc. v. Thomasson, 156 Ga.App. 313, 315, 274 S.E.2d 708 (1980). Dan was on the dock under the...
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...for injuries to the child which resulted from a failure of the child's mother to properly supervise her.").33 See Wren v. Harrison , 165 Ga. App. 847, 849, 303 S.E.2d 67 (1983) ("[The child] was on the dock under the supervision of his parents at the time he drowned, and they were familiar ......
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English v. 1st Augusta Ltd.
...concluded that the issues of negligence of the parties was for the jury to decide. Defendants rely upon the case of Wren v. Harrison, 165 Ga.App. 847, 303 S.E.2d 67 (1983). The case arose from the drowning death of a three-year-old child in a lake. Defendant, who was the child's uncle and w......
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Biggs v. Brannon Square Associates, 69091
...232. The theory clearly does not apply to natural water conditions which exist on private property. See generally Wren v. Harrison, 165 Ga.App. 847, 848, 303 S.E.2d 67 (1983) (distinguishing between natural ponds or water hazards and an unfenced swimming pool in a residential area.) The the......
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...518, 481 S.E.2d 232 (1997) (claim of mantrap-caused injury to licensee on property of defendants). As stated in Wren v. Harrison, 165 Ga.App. 847, 848-849, 303 S.E.2d 67 (1983): "An owner [or occupier] owes to a licensee no duty as to the condition of the premises save that he should not kn......