Holbrook v. Executive Conference Center, Inc.

Andrews, Judge,

dissenting.

Because I find that the Holbrooks cannot show that Executive’s negligence was the proximate cause of Alfred Holbrook’s accident, I must respectfully dissent.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most *109favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Citation and punctuation omitted; emphasis supplied.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (456 SE2d 93) (1995), quoting Prosser and Keaton on Torts (5th ed. 1984), p. 269, § 41.

Further, there are no disputed issues of fact to go to a jury. It is undisputed that the last time anyone saw Alfred, he was in the shallow end of the pool. No one heard him cry for help. No one saw him again until he was found unconscious in the deep end. Alfred himself says that the last thing he remembers was wading across the shallow end of the pool. In addition, the Holbrooks stress that at no time did Alfred go toward the deep end of the pool.

The speculations on which the plaintiffs rely are not sufficient to form a basis for the conclusion that Executive’s negligence more likely than not was responsible for the accident. To deny summary judgment to Executive in this case would be to hold that since Executive cannot show that its negligence was not responsible for the accident, this case must go to trial. However, the Holbrooks will bear the burden of proof at trial and even if they get a favorable verdict, they “will not be able to sustain it by a single fact, for it will be based on sheer speculation.” Ware County v. Medlock, 192 Ga. App. 542, 550 (385 SE2d 429) (1989) (Birdsong, J., dissenting).

In upholding the trial court’s denial of Executive’s motion for *110summary judgment, the majority appears to be applying the doctrine of res ipsa loquitur. However, plaintiffs do not claim, and the facts are not consistent with, res ipsa loquitur. This court, in finding that res ipsa loquitur did not apply in similar circumstances where a boy drowned and was found in the deep end of the pool, held that “drowning is not an occurrence that is within itself sufficient to indicate that it must have been brought about by negligence on the part of someone. It is just as likely to happen as the result of accident, which is negligence of no one.” Y.M.C.A. v. Bailey, 112 Ga. App. 684, 693 (146 SE2d 324) (1965).

A different result is not required by Walker v. Daniels, 200 Ga. App. 150 (407 SE2d 70) (1991), cited by the majority. The issue in that case was not how the deceased came to drown, but rather the inattentiveness of the lifeguard and whether the victim could have been rescued if “due diligence had been exerted.”1 Walker, supra at 156.

Accordingly, for the reasons discussed above, I would find that the trial court erred in denying Executive’s motion for summary judgment.

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this dissent.

It should be noted that there is no requirement that there be a lifeguard on duty at the pool. The Fulton County Health Code section quoted in the majority’s opinion merely requires that: “A qualified attendant should be on duty at or near the poolside at all times when a pool is open to use by bathers and shall be available during all department pool inspections.” Fulton County Code Section 30-2-9-20.