In a recent Georgia wrongful death action, the Court of Appeals held that the trial court erred in denying summary judgment to the property owners because there was no genuine issue of material fact as to whether the owners voluntarily assumed a duty to protect the child and other guests, and it was undisputed that the grandfather was supposed to be supervising the child at the time of the incident.
Background
On July 3, 2017, the pool owners hosted a birthday party for a family friend, who—with the pool owners’ permission—invited some people, including the grandparents. These people didn’t know the pool owners and had never been to their home before. They brought their 4-year-old granddaughter with her swimsuit.
The pool owners announced that flotation devices were available for use. The grandparents were aware that the little girl didn’t know how to swim and asked a mom if their granddaughter could get into the pool with her and her baby.
When the mom agreed to watch the four-year-old, the grandparents began to socialize with other guests. After a while, the mom who was supposed to be watching the girl, came into the house and was asked where was the young girl. The grandparents began searching for the child but could not find her. The grandmother then noticed another guest carrying a small child out of the pool and realized it was granddaughter. Tragically, despite all best efforts (including CPR), being transported to a hospital, and spending several days on life support, the four-year-old never regained consciousness and was pronounced dead.
The grandfather couldn’t recall seeing the mom leave the pool area or speaking with her again after initially asking her to watch his granddaughter. He didn’t realize anything was wrong until his wife informed him that their their four-year-old granddaughter had drowned.
A Video Shows What Happened
A video from a surveillance camera by the pool showed the mom exiting the pool with her baby and pausing for several seconds within feet of the grandfather to speak with him before leaving the area. According to a police report, the mom told the grandfather that she was leaving the pool area and that he would have to watch the four-year-old in her absence.
The video shows the grandfather by the pool being approached by the mom. He then looks at the four-year-old on the pool’s steps, before walking away. Within seconds of the grandfather turning and walking away, the four-year-old enters the pool and slips beneath the water. Although she tried to resurface—her arms below the water and face barely breaking through each time—she moved further into the pool. Less than a minute later, she slipped under the water for the last time. This happened while other children played and swam around her, and no fewer than four adults sat a few feet away from the pool’s edge, eating and socializing. But despite the large number of guests who were in the pool area, the four-year-old wasn’t 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 the grandfather “failed to supervis[e]” the four-year-old.
The four-year-old’s mother told the police that she didn’t want to press charges against the grandfather but later filed a wrongful death action against the pool owners. They filed a motion for summary judgment.
The trial court denied the pool owners’ motion for summary judgment, concluding that genuine issues of material fact remained as to whether they breached a duty they voluntarily assumed by announcing floatation devices were available but failing to identify non-swimmers and provide them with such protection.
Did Homeowners Voluntarily Assume a Duty to Protect Child at Their Pool?
The Georgia Court of Appeals found that there was no genuine issue of material fact as to whether the pool owners “voluntarily assumed” a duty to protect the child and other guests, under Restatement (Second) of Torts § 324A, when they announced that floatation devices were available for children and non-swimmers and indicated where the devices could be found.
Presiding Judge Dillard wrote that the principle, as adopted by the Supreme Court of Georgia, provides that one who undertakes, “gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking,” if:
- his failure to exercise reasonable care increases the risk of such harm;
- he’s undertaken to perform a duty owed by the other to the third person; or
- the harm is suffered because of reliance of the other or the third person upon the undertaking.
And the Georgia Supreme Court has recognized that this rule applies “only to the extent that the alleged negligence of the defendant exposes the injured person to a greater risk of harm than had existed previously.”
Here, the announcement that flotation devices were available for use didn’t expose any guests to a greater risk of drowning than already existed by virtue of swimming in or congregating around a pool, Judge Dillard explained. Moreover, he said that this can’t reasonably be seen as an effort to further warn guests about the risks of drowning in the pool. Plus, there was no indication that the pool owners’ announcement induced the grandparents to seek a floatation device for their granddaughter.
Judge Dillard went on to write that needless to say, it would normally be “the duty of a parent or other adult having primary supervisory control over the child to see to it that a child would not be going into a place of obvious danger.” After all, a swimming pool is, as a matter of law, an open and obvious danger. It was undisputed here that the four-year-old’s grandfather was supposed to be supervising the child at the time of the incident, and he was negligent in failing to do so.
As a result, the pool owners couldn’t be held responsible for her death, and “[t]o hold otherwise would be to make [them] strictly liable for injuries to the child which resulted from a failure of the child’s [grandfather] to properly supervise her.”
Therefore, the trial court erred in denying the pool owners’ motion for summary judgment. The Court of Appeals reversed the trial court’s ruling. Whitehead v. Green, 2022 Ga. App. LEXIS 480, 2022 WL 9704447 (Ga. App. October 17, 2022).
Tragedy Does Happen
Accidents happen. But sometimes, someone is at fault. What happened in this pool drowning case is simply unimaginable. We hate writing about this case. If you have questions about Georgia laws, insurance laws, or want to ask us any questions about your situation, you are welcome to reach out to our experienced Atlanta personal injury lawyer Atlanta residents trust. We offer free confidential consultations. You can contact an Atlanta personal injury attorney at Tobin Injury Law 24 hours a day, 7 days a week by calling 404-JUSTICE (404-587-8423) or using our online contact form.