Holbrook v. Executive Conference Center, Inc.

464 S.E.2d 398, 219 Ga. App. 104, 55 A.L.R. 5th 851, 95 Fulton County D. Rep. 3622, 1995 Ga. App. LEXIS 975
CourtCourt of Appeals of Georgia
DecidedNovember 17, 1995
DocketA95A1641, A95A1642
StatusPublished
Cited by13 cases

This text of 464 S.E.2d 398 (Holbrook v. Executive Conference Center, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holbrook v. Executive Conference Center, Inc., 464 S.E.2d 398, 219 Ga. App. 104, 55 A.L.R. 5th 851, 95 Fulton County D. Rep. 3622, 1995 Ga. App. LEXIS 975 (Ga. Ct. App. 1995).

Opinions

McMurray, Presiding Judge.

Plaintiffs Alfred Holbrook and Carolyn Holbrook, individually and as parents and next friends of Alfred Holbrook II, a minor, brought this tort action against defendants Executive Conference Center, Inc. (“Executive”), as well as the Dayton (Ohio) Public Schools a/k/a Dayton Public School District (“Dayton Public Schools”), the Dayton Board of Education, and Leroi M. Hall (collectively “the Ohio defendants”), after the 13-year-old Alfred Holbrook II nearly drowned when he was found “at the bottom of the deep end” in a swimming pool “owned and operated ... on the premises . . .” of Executive’s conference center in Fulton County, Georgia. Alfred Holbrook II was a guest of Executive while “participating in a school band trip organized, sponsored and supervised by the Defendants, Dayton Public Schools and Dayton Board of Education.” At the time Alfred Holbrook II entered the shallow end, the swimming pool “was in violation of the applicable Fulton County Health Department Code, including but not limited to § 30-2-9-6.” Executive was further negligent in the maintenance and operation of the pool “in that the break line between the shallow end of the pool and the deep end of the pool was inadequately differentiated and/or marked.” According to the amended complaint, defendant Leroi M. Hall “negligently failed to properly supervise the minor Plaintiff and failed to exercise reasonable care for the safety of the minor Plaintiff.”

Executive admitted that Alfred Holbrook II was its guest on August 31, 1991, but denied the material allegations of negligence, asserting that it “adequately instructed and warned Plaintiff Alfred Holbrook II of any alleged risks associated with the use of the pool in question.” In the joint answer of the Ohio defendants, the Dayton Public Schools and the Dayton Board of Education admitted that defendant “Leroi M. Hall, at all times relevant herein, was acting as the agent and/or employee of the defendant Dayton Public Schools,” but each denied all allegations of negligence or liability.

After a period of discovery, Executive filed a motion for summary judgment, arguing that plaintiffs “cannot establish a prima facie case of negligence.” The Ohio defendants filed their own joint motion for [105]*105summary judgment, arguing that the 13-year-old Alfred Holbrook II “assumed the risk of injury.” In support of the various contentions, the following evidence was adduced: Alfred Holbrook II “had basic swimming skills.” He was not afraid of the water. When he entered the shallow end of Executive’s pool, no lifeguard was in attendance, and “there was no life line suspended across the water in the pool.” He “had no plan or intention to swim into the deep end of the pool.” It is not Alfred Holbrook II’s “usual practice or habit while swimming to swim past a life line or into the deep end.” At no time did he “voluntarily enter the deep end of the pool.” His only plan was to swim across the width of the pool, “staying in the shallow end.” Alfred Holbrook II knew to look for “a line across or [to] look to the side and see numbers on the side that say how deep it is” to determine the shallow end from the deep end. He does not know how he came to be found floating face down in the deep end but “remember [s] walking [in waist-high water] over toward the other side of the pool[, . . . i.e.,] the other side of the shallow part, [but does not] remember anything after that.” However, Alfred Holbrook II expressly deposed that he “did not experience an asthma attack or any asthmatic symptoms” while in the pool or at any time that morning.

At all pertinent times, the pool safety provisions of the Fulton County Health Code required a qualified attendant trained in pool operation and first aid “to be on duty at or near the poolside at all times when a pool is open to use by bathers [, . . . with the] authority to enforce all rules of safety and sanitation.” Fulton County Code Section 30-2-9-20. Section 30-2-9-6 (3) requires that life lines “shall be installed across the pool along the slope-break,” denoting the end of the shallow area and the descent into the deep end. Moreover, Section 30-2-9-6 (3) further requires “[permanent easily readable depth markings (minimum four-inch-high numbers) indicated in feet [to be] visible from both inside and outside the pool ... on both interior sides of the pool above normal water level ... (a) at the shallow end (b) at the slope break and (c) at the deep end.” Photographs of Executive’s pool (drained) show the absence of such interior depth markings. Jerry Kerce, an Environmental Health Specialist IV for the Fulton County Health Department and responsible for enforcement of Fulton County pool safety provisions, deposed that the presence of a life line suspended across the pool at all times during its use “is an absolute requirement.” He explained the presence of the life line “to designate the slope break [is] important not only as a visible separation of the shallow end from the deep end, but also to warn swimmers where the slope break in the pool is located.” Since the “slope of the floor of the pool can alter as much as four times the depth from the shallow end as compared to the deeper end[,] ... a life line is an essential warning to any swimmer, adult or child, of the dramatic [106]*106change in depth. . . . The life line is also important because a swimmer may grab onto the life line if surprised by the change in depth.” A swimming pool in Fulton County which has “depths in excess of five feet and does not have a life line installed in the pool is in violation of the Fulton County Health Code,” which violation constitutes a misdemeanor. For purposes of Executive’s motion, counsel stipulated that there was no life line across the pool “marking off the division between the shallow and deep end of the pool[;] . . . that there were no markings on the bottom of the pool which would indicate where the slope to the deep end begins [; and that the lack of a life line] was negligence per se because there is a Fulton County ordinance requiring such.”

The trial court denied Executive’s motion for summary judgment but granted that of the Ohio defendants. In Case No. A95A1641, plaintiffs appeal from the grant of summary judgment to the Ohio defendants. In Case No. A95A1642, Executive cross-appeals from the denial of its motion for summary judgment. Held-.

Case No. A95A1641

1. Plaintiffs contend the trial court erred in concluding that Alfred Holbrook II assumed the risk of injury as a matter of law. We do not reach the merits of this question. It appears that the grant of summary judgment to the Ohio defendants was correct, regardless of any factual question as to proximate cause. These defendants enjoy sovereign and official immunity under the authority of Art. I, Sec. II, Par. IX, subsection (d) of the Georgia Constitution of 1983 as amended, which is extended to them as a matter of comity. See Univ. of Iowa Press v. Urrea, 211 Ga. App. 564, 565 (2), 567 (440 SE2d 203).

“[Supervision and control of students by teachers is a discretionary function. Guthrie v. Irons, 211 Ga. App. 502, 504-507 (439 SE2d 732) (1993); [cits.].” Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 297 (454 SE2d 149). In the case sub judice, there are no allegations of wilfulness, malice, or corruption. “ ‘The record in the present case is utterly devoid of any conduct by ([Leroi M. Hall]) which could remotely be construed as being sufficient to lift the shield that protects public officers acting colore officii.’ Partain v. Maddox, 131 Ga. App. 778, 785 (206 SE2d 618) (1974).” McDay v.

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Holbrook v. Executive Conference Center, Inc.
464 S.E.2d 398 (Court of Appeals of Georgia, 1995)

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Bluebook (online)
464 S.E.2d 398, 219 Ga. App. 104, 55 A.L.R. 5th 851, 95 Fulton County D. Rep. 3622, 1995 Ga. App. LEXIS 975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holbrook-v-executive-conference-center-inc-gactapp-1995.