THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 17, 2017
In the Court of Appeals of Georgia
A17A1842. FRAZIER v. GODLEY PARK HOMEOWNERS
ASSOCIATION, INC. et al.
ANDREWS, Judge.
This appeal is from the grant of summary judgment for the defendants in an
action arising out of a drowning death at a community swimming pool. We affirm.
On July 4, 2014, four-year-old King Frazier drowned in a swimming pool
operated by the defendants for the residents and guests of the Godley Park residential
community in Savannah, Georgia. He was at the pool with his mother and several
relatives, none of whom were residents of that community. But his aunt was a resident
there, and although she was not there that day, she had given her relatives her pool
key card so that they could access the pool.
The pool was very crowded that day, and King was under water for almost five
minutes before he was discovered. Resuscitation efforts by his mother and a nurse
who was at the pool failed. Emergency personnel were called, but it took them almost
twenty minutes to arrive, partly due to some confusion over the address of the pool.
King’s father commenced this action against the Godley Park Homeowners’
Association, Gold Crown Management, Inc., and Aaron Hettesheimer in his
individual capacity as property manager for Gold Crown, blaming King’s death on
their negligent management of the pool. The trial court granted summary judgment
for the defendants, and this appeal followed. In granting summary judgment for the
defendants/appellees, the trial court found that King was a trespasser; that the
appellees had owed him only a duty of not wilfully or wantonly injuring him; that the
appellees did not breach that duty; and that none of the appellees’ actions caused
King Frazier’s death.
The appellant contends the trial court erred in finding King Frazier was a
trespasser. We agree. The aunt who provided the pool key card for accessing the pool
was a resident of the community, and as such she was an invitee. See Gaydos v.
Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994). And “[a]
guest of a tenant is an invitee upon the premises of the landlord where he is invited
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by the tenant and visits him in such premises.” (Citation omitted.) Paul v. Sharpe, 181
Ga. App. 443, 444 (1) (352 SE2d 626) (1987).
The trial court’s basis for finding King Frazier a trespasser was the
homeowners’ association rules requiring that residents register before getting a pool
key card, and accompany any guests invited to the pool. The aunt did neither in this
case, but she claimed never to have been informed of such requirements. She also
stated that she had frequently allowed her family to use her key card to gain access
to the pool, and that the pool was often open and unlocked so that anyone could get
in even without a key card. “An invitation may arise from known customary use, and
it may be inferred from conduct or from any state of facts upon which it naturally and
necessarily arises.” (Citation omitted.) Chambers v. Peacock Constr. Co., 115 Ga.
App. 670, 676 (3) (155 SE2d 704) (1967).
It thus appears at least a jury question existed as to whether King Frazier was
a trespasser or invitee. However, even assuming King Frazier was an invitee, the trial
court correctly concluded that the appellees were entitled to summary judgment on
the grounds they had not been negligent in any fashion.
The appellant contends the appellees had been negligent in three ways: 1. by
failing to have a lifeguard present; 2. by failing to have a safety rope with floats
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demarcating the change in slope from the beginner’s area of the pool (having a depth
of three feet or less) to the shallow area of the pool (having a depth of five feet or
less) ; and 3. by failing to post a sign displaying the pool’s address. With regard to
the need for a lifeguard, it was undisputed that the appellees posted signs at the pool
that no lifeguard was present, and that the applicable safety regulations for swimming
pools did not require the provision of a lifeguard for the type of pool maintained by
the appellees at Godley Park.
The Godley Park pool was a zero depth entry pool, having the same gradual
slope starting from zero feet at the edge of the pool to the deepest part (with a depth
of five feet.) Chapter 290-5-57-.05(4)(b) of the Chatham County Department of
Public Health regulations for swimming pools requires flotation lines at “[t]he
transition point or point of slope change of the pool from the beginners’ area to the
shallow area and from the shallow area to the deep area. . . .” (Emphasis supplied.)
As there was no change in the slope or break in grade at any point in the gradual slope
of the Godley Park pool, the Chatham County swimming pool inspectors found that
regulation inapplicable to a zero depth entry pool and that no flotation line was
required. Likewise, both the district environmental health director for the coastal
health district and a licensed instructor for the National Swimming Pool Foundation’s
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Certified Pool and Spa Operator’s Course indicated the applicable rules and
regulations for swimming pools did not require a flotation line for the configuration
and depth of the Godley Park pool.
The appellant adduced the deposition testimony of an expert who interpreted
that regulation as requiring a flotation line at the three feet level of the Godley Park
pool, where the beginners’ area ended and the shallow area began. However, the
appellant’s expert’s interpretation of the regulation was mistaken, as the regulation
clearly applies only where there is a transitional change in slope of the pool’s floor.
The appellees maintained an emergency land-line phone station at the entry
area of the pool. At the time of the incident, there was no address posted by the
emergency phone. The pool’s street address was posted at the street. After King
Frazier was retrieved from the pool, several observers called 911 on cell phones, and
did not use the land-line emergency phone which would have indicated the exact
address to the 911 operator.
The appellant contends the possible confusion over the correct address related
to the 911 operator, which might have been avoided if the appellees had posted the
pool’s address by the emergency phone, may have contributed to the late arrival of
the emergency responders. However, according to the appellees’ expert who was a
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licensed instructor for the National Swimming Pool Foundation’s Certified Pool and
Spa Operator’s Course, Godley Park’s signage was Code compliant; Godley Park was
not required to post an address at the pool’s location, and the street signage properly
displayed the street address.
Moreover, the evidence was undisputed that the arrival time of the emergency
responders had no bearing on King Frazier’s death. The doctor who performed an
autopsy on the child testified that it was unlikely he could have been resuscitated after
being under water for four minutes. Even the appellant’s own swimming pool expert
was of the opinion it served no purpose to criticize the adequacy of the rescue efforts,
because by the time the child was discovered at the bottom of the pool, it was way too
late. So any delay in arrival time of the emergency responders did not contribute to
King Frazier’s death.
“An owner of a swimming pool is not an insurer of its safety but is liable for
injury only if its negligence was the proximate cause of the injury.” (Citation
omitted.) Plantation at Lenox v. Lee, 196 Ga. App. 420, 423 (395 SE2d 817) (1990).
“Regardless of the age or capacity of the injured person, if there is no breach of any
legal duty on the part of the defendant toward such person, there can be no legal
liability.” (Citation and punctuation omitted.) Winchester v. Sun Valley-Atlanta, 206
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Ga. App. 140, 142 (424 SE2d 85) (1992). In the instant case, even if King Frazier
were considered an invitee and the appellees owed him a duty ordinary care, the
evidence of record failed to show any type of negligence on the part of the appellees
that contributed to his drowning death. Rather, as indicated in the report by the police
officer who investigated the incident, the evidence showed “lack of proper adult
supervision.”
Accordingly, the trial court properly granted summary judgment for the
appellees.
Judgment affirmed. Ellington, P. J.,concurs. Rickman, J., concurs in judgment
only.
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