ATLANTA (Legal Newsline) - A grandfather who was captured on videotape walking away from his 4-year-old granddaughter at a busy pool party before she drowned is primarily responsible for the girl’s death, a Georgia appeals court ruled, rejecting an attempt by the child’s mother to collect damages from the party hosts and the company that built the pool.
The Georgia Court of Appeals reversed a trial judge’s decision to allow the case to move forward, saying there were no disputed questions of fact about whether the homeowners had a duty to protect guests from drowning or if the pool had “hidden perils” the pool installer should have warned about.
“The mere ownership of a swimming pool does not make a property owner liable for a licensee’s injuries,” the appeals court ruled in an Oct. 17 decision, using the legal term for invited guests.
Ebony Green sued Tahir and Shannon Whitehead and White Pools after Rolinda and Bernard Bond brought Ebony’s daughter Tamira – the Bonds’ granddaughter – to a pool party hosted by the Whiteheads. The Bonds didn’t know the Whiteheads but were invited by another guest with the Whiteheads’ permission.
The Bonds knew Tamira couldn’t swim but asked a relative if she could join her in the pool. Tamira played with the relative in the shallow end of the pool, with Bernard Bond sitting by the side. Surveillance video showed the relative leaving the pool, discussing something with Bernard, and then Tamira slipping below the surface, attempting to resurface several times until she drifted underwater and drowned. Despite the fact Bernard and several adults were seated next to the pool’s edge and the water was full of swimmers, Tamira’s body wasn’t discovered until 13 minutes later.
Bernard said he didn’t realize the relative left the pool, but the relative told police she told the grandfather she was leaving and he needed to watch Tamira. The local sheriff’s office concluded Bernard failed to supervise Tamira. The girl’s mother declined to press charges against Bernard and sued the Whiteheads and White Pools instead.
The trial judge refused to dismiss the case, citing opinions by plaintiff experts Thomas Griffiths and Gerald Dworkin that the pool’s dark color and a waterfall made it hard to see a drowning child. The judge also said it was up to a jury to decide if the Whiteheads assumed a duty to protect visitors against drowning because they had offered the use of floatation devices. And the judge rejected the defense argument the girl’s grandparents were responsible for her death.
The appeals court reversed all of those findings. Tamira was a licensee under Georgia law, the appeals court ruled, meaning property owners only had a duty to protect her against hazards they know about. The Whiteheads testified they never had trouble seeing swimmers under the water of their pool, contradicting the experts’ opinion it was dangerous.
“There is no evidence the Bonds would have acted differently while supervising Tamira if they had been warned that particular features of the Whiteheads’ pool reduced visibility,” the court said. Bernard “was unquestionably negligent” for failing to watch her, the court said, “nor is there any evidence Bernard ever attempted to lay eyes on Tamira in the 13 minutes before her body was discovered.”
Even the plaintiff experts acknowledged there was no requirement to install the pool with a lighter interior color and Dworkin said the “biggest contributor was the lack of dedicated supervision of people in the water.” Griffith blamed the waterfall for creating ripples on the surface, but agreed lack of supervision was the primary reason Tamira drowned.