A recent Georgia wrongful death decision arose from a lawsuit that involved the drowning of a small child. Our firm is currently handling a sad case involving a five year old who climbed the fence of a closed pool because the fence had improper handholds available to allow it to be climbed. Our case is in litigation which will hopefully result in changes to the pool fence and the way management assesses danger. Sadly in the case below, the tragedy could not be averted and there was no legal liability.
On the Fourth of July in 2014, a four-year-old boy drowned in a community swimming pool that was for the people who lived in a particular residential community and their guests. The child was at the pool with his mother and relatives, none of whom lived there. His aunt had given them her pool key card so that they could go to that pool, but she wasn’t present.
The pool was crowded, and the four-year-old was underwater for almost five minutes before someone found him. His mother and a nurse tried to resuscitate him. It took emergency personnel 20 minutes to get there. The boy died.
His father sued the Homeowners’ Association, its management company, and the property manager. He asserted that the boy’s death was a result of negligent pool management. Summary judgment was granted for the defendants. The lower court found the boy was a trespasser, so the only duty owed to him was of not willfully or wantonly hurting him, and they hadn’t breached that duty. The father appealed.
On appeal, the father argued that it was improper for the lower court to find his son was a trespasser. The aunt who’d given them the pool key was a resident and an invitee. Under an earlier Georgia case, the guest of a tenant is an invitee upon the landlord’s premises if he’s invited by the tenant.
The trial court had found the boy a trespasser because the HOA rules required residents to register before they got a pool key card and go with any guests whom they invited to the pool. The aunt hadn’t done this, but she said she wasn’t informed that these were the rules. She also said she frequently let her family use the key card, and often the pool was open and unlocked so that others could go into it even without a key card. Generally, an invitation can arise from known customary use, and it can be inferred from actions or any state of facts upon which it naturally and necessarily arises.
The appellate court found that there was at least a jury question about whether the boy was a trespasser or an invitee. Even if he was an invitee, however, the appellate court found it was correct for the lower court to conclude summary judgment should be granted because the pool owner had not been negligent in any way.
The plaintiff argued it was negligent for the HOA to fail to have a lifeguard, fail to have a safety rope, and fail to put up a sign displaying the address of the pool. However, the defendants had posted signs at the pool that there was no lifeguard present, and safety regulations didn’t require them to have lifeguards.
The appellate court also found that the pool was a zero depth entry pool that met regulations. There was no requirement of a flotation line, as argued by the plaintiff. The HOA had an emergency landline near the pool, which would have indicated the address to the 911 operator, had it been used instead of cell phones. The arrival time of emergency workers didn’t affect the child’s death. The appellate court held that even if the decedent was an invitee, there was no evidence to show negligence by the defendants. The evidence instead showed a lack of proper adult supervision.
Although there was no liability here, you should consult a wrongful death attorney if your child drowned in someone else’s pool, and you believe someone else may have been to blame. Atlanta wrongful death attorney Christopher Simon has considerable experience representing families who have lost their loved ones due to negligence and wrongful conduct, and he is prepared to assist you with a possible claim. Indeed, if you believe you have a possibly meritorious claim and would like to discuss the options you may have for legal recovery, feel free to contact us to arrange a free case consultation.
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