Poston v. Vanderlee

Shulman, Judge. 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 SE2d 905); Savannah F. & W. R. Co. v. Beavers, 113 Ga. 398 (39 SE 82); *834 Montega Corp. v. Grooms, 128 Ga. App. 333 (196 SE2d 459). Argued January 16, 1978 Decided January 31, 1978 Rehearing denied February 16, 1978 Long, Weinberg, Ansley & Wheeler, Meade Burns, Michael T. Bennett, for appellant. Phillips, Hart & Mozley, J. Arthur Mozley, Donald R. Andersen, for appellees. Accordingly, it was error to deny appellant’s motion for summary judgment. Judgment reversed. Bell, C. J, and Birdsong, J., concur.