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Poston v. Vanderlee

Court of Appeals of Georgia
Jan 31, 1978
242 S.E.2d 727 (Ga. Ct. App. 1978)

Opinion

55025.

ARGUED JANUARY 16, 1978.

DECIDED JANUARY 31, 1978. REHEARING DENIED FEBRUARY 16, 1978.

Action for damages. Clayton Superior Court. Before Judge Emeritus Morgan.

Long, Weinberg, Ansley Wheeler, Meade Burns, Michael T. Bennett, for appellant.

Phillips, Hart Mozley, J. Arthur Mozley, Donald R. Andersen, for appellees.


Appellees-plaintiffs brought suit against appellant-defendant landowner for the death of their three-year-old son.

We granted this application for interlocutory review to consider the trial court's denial of appellant's motion for summary judgment. We find that the defendant, as a matter of law, was entitled to summary judgment in his favor and, accordingly, reverse the denial of summary judgment.

The evidence submitted, both in support of and in opposition to the motion for summary judgment, construed most favorably to the appellees (who oppose the motion), established that appellees' three-year-old son died by drowning in appellant's swimming pool, apparently while trying to retrieve a plaything that was thrown into appellant's yard; that the child lived in the neighborhood; that appellant was aware that small children lived in the neighborhood and played in various yards; that appellant's swimming pool was unfenced, but was above ground; that a removable ladder provided the only access to the deck surrounding the pool; and that on the day of this most unfortunate occurrence the ladder had not been removed.

While this court is sympathetic to the great loss suffered by the bereaved parents, under the facts of this case appellees have failed to establish any duty owed which would provide a basis for actionable negligence. Handiboe v. McCarthy, 114 Ga. App. 541 ( 151 S.E.2d 905); Savannah F. W. R. Co. v. Beavers, 113 Ga. 398 ( 39 S.E. 82); Montega Corp. v. Grooms, 128 Ga. App. 333 ( 196 S.E.2d 459).

Accordingly, it was error to deny appellant's motion for summary judgment.

Judgment reversed. Bell, C. J., and Birdsong, J., concur.

ARGUED JANUARY 16, 1978 — DECIDED JANUARY 31, 1978 — REHEARING DENIED FEBRUARY 16, 1978 — CERT. APPLIED FOR.


Summaries of

Poston v. Vanderlee

Court of Appeals of Georgia
Jan 31, 1978
242 S.E.2d 727 (Ga. Ct. App. 1978)
Case details for

Poston v. Vanderlee

Case Details

Full title:POSTON v. VANDERLEE et al

Court:Court of Appeals of Georgia

Date published: Jan 31, 1978

Citations

242 S.E.2d 727 (Ga. Ct. App. 1978)
242 S.E.2d 727

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