The Court of Appeals recently ruled that a trial court erred in denying summary judgment to a pool company as testimony that the child would have been noticed in the absence allegedly dangerous features was speculative.
In addition to alleging the pool owners were liable for negligence (which we discussed earlier), the plaintiff also named the pool company as a defendant, asserting that the company was negligent, among other things, negligent instruction to the pool owners regarding pool safety.
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 house 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 asked where she was. The grandparents began searching for her 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 the four-year-old had drowned.
Expert Testimony Not Compelling
The plaintiff’s expert testified there can be a failure to recognize a drowning victim due to “intrusions and distractions of secondary duties, which is a perfect fit for a pool party.” These distractions can include eating, speaking with other people, playing with friends, talking on the phone, texting, or anything else that pulls the person’s attention away from the water. All of those things, according to the expert, can create external distractions that can cause a person to not see a drowning victim submerged in the water or at the surface.
Furthermore, the expert said that “internal noise,” or a person’s inner thoughts, can also create a distraction that causes a person not to notice a drowning victim even when looking directly at the water. Lastly, the expert described “cognitive body blindness,” in which a person will actually see a drowning victim but does not believe what they are seeing.
Ultimately, the expert testified that people being distracted by their own thoughts and activities, and the angle of the sun at the time in question, were all variables that contributed to the child being under the water “for some time and not being found,” but there was “no way” to know the percentage or extent to which those variables contributed to the delayed discovery. Nor could he differentiate between the many different variables that caused rippling in the pool. And because of these different variables, it was the expert’s opinion that the pool company should have told the pool owners to hire a lifeguard if they intended to host pool parties or, in the alternative, to outfit all non-swimmers in life jackets.
But the Court of Appeals said that it was undisputed there was no lifeguard or designated “water watcher” at the party, nor is there any evidence the grandfather ever attempted to lay eyes on the child in the 13 minutes before her body was discovered.
Additionally, the grandmother testified that when she spotted the mom inside without the child, she began to search for her granddaughter, but she didn’t testify to ever searching for the child in the pool and failing to see her. Instead, her testimony was that she remembered “running to look for the child, calling her,” and that someone said to “check the bouncy house.”
As a result, she checked the bouncy house and a basketball court before seeing the child’s body being carried from the pool. As such, the suggestion that the child would’ve been discovered soon enough to save her life in the absence of the relevant features is entirely speculative because there was no indication the people who were most responsible for her wellbeing—even according to the expert testimony—looked for her within the pool area during the time she was underwater.
Failure to Warn the Pool Owners
The pool company argued that the trial court erred in denying its motion for summary judgment as to the plaintiff’s claim for failure to warn the pool owners about the pool’s features because, again, she failed to establish that the failure to warn proximately caused the child’s injuries. The Court of Appeals agreed.
In failure-to-warn cases, the Court of Appeals explained that the duty to warn arises “whenever the manufacturer knows or reasonably should know of the danger arising from the use of its product.” Even so, proximate causation is a necessary element of a failure to warn claim.
In this case, the expert testified that the pool company was “obligated to inform the customer about [the] hazards and the risks and what can be done to mitigate those hazards and risks especially when you have young children, non[-]swimmers, and especially when you have a pool party.”
But importantly, the expert didn’t think that the pool company acted unreasonably in installing the various features in the pool owners’ pool, but rather that the pool company should have warned the pool owners about the “potential safety consequences of having those features” in addition to “the conventional hazards and risks we know of using a swimming pool.”
Nevertheless, the plaintiff again couldn’t establish that the pool company’s alleged failure to warn the pool owners proximately caused the child’s injuries. Even if the pool company informed the pool owners about heightened risks and that the pool industry advocates for the use of life jackets, for the need for a water watcher or lifeguard, and for staying within arm’s reach of children, the expert couldn’t say within a reasonable degree of certainty what steps the pool owners would have taken and, thus, whether it would’ve prevented the child’s death.
Moreover, the expert definitively testified that he couldn’t conclusively say the pool company providing a warning to the pool owners about the potential consequences of the pool’s interior color and water features would have prevented the child’s drowning because he did not “know if the pool owners are going to actually listen to and/or follow the[ ] recommendations.” Instead, he could only say they “may have helped.”
Even more importantly, the pool owners couldn’t say what, if anything, they would’ve done differently if they’d received such warnings. In fact, the pool owner testified that even if he’d received warnings about the potential for water features to make it more difficult to see a drowning child, he still would have purchased the water features, and he couldn’t say whether he would’ve purchased the dark pebble interior if he had been warned about its potential to decrease visibility. Nor could he definitively say if he would have turned off the water features for the pool party if he had known there were increased risks. There was, therefore, no evidence to support a reasonable inference that any warning to the pool owners from the pool company would have prevented the child’s injuries and death.
In light of the foregoing, the Court of Appeals held that the plaintiff failed to establish that the failure to warn the pool owners about the pool’s features proximately caused the child’s injuries and, accordingly, the trial court erred in denying the pool company’s motion for summary judgment.
Negligence: Voluntary Undertaking
The Court of Appeals also rejected the contention that there was a genuine issue of material fact as to whether the pool company “voluntarily assumed” a duty to warn the pool owners of general pool safety protocols, under Restatement (Second) of Torts §324A, when it provided certain instructions to the pool owners during “Pool School.”
The Court of Appeals said that the evidence showed that the pool company provided verbal and written instructions to the pool owners regarding pool maintenance and safety of the pool’s water and equipment. However, there was no evidence the pool company ever undertook to educate the pool owners about general pool safety, i.e., how to safely host parties or protect guests from drowning.
Also, under Georgia law, Restatement (Second) of Torts §324A “will not support a cause of action based on the theory that a party who did not undertake to render services should have done so.” As a result, the trial court erred in denying the pool company’s motion for summary judgment on this ground as well.
The Georgia Court of Appeals reversed the trial court’s ruling against the pool company, like it did against the pool owners. Whitehead v. Green, 2022 Ga. App. LEXIS 480, 2022 WL 9704447 (Ga. App. October 17, 2022).
Tragedy Does Happen
Accidents can happen, but in some instances, someone is at fault. What happened in this pool drowning case is difficult to comprehend, and it’s tough to write about it.
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.