Moon v. Homeowners' Ass'n of Sibley Forest, Inc.

415 S.E.2d 654, 202 Ga. App. 821, 24 Fulton County D. Rep. 18, 1992 Ga. App. LEXIS 176
CourtCourt of Appeals of Georgia
DecidedJanuary 28, 1992
DocketA91A1548, A91A1549
StatusPublished
Cited by32 cases

This text of 415 S.E.2d 654 (Moon v. Homeowners' Ass'n of Sibley Forest, 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
Moon v. Homeowners' Ass'n of Sibley Forest, Inc., 415 S.E.2d 654, 202 Ga. App. 821, 24 Fulton County D. Rep. 18, 1992 Ga. App. LEXIS 176 (Ga. Ct. App. 1992).

Opinions

Carley, Presiding Judge.

In his capacity as president of Racetrac, Inc. (Racetrac), appellee-defendant Max Lenker undertook to host a party for a new Racetrac employee. Appellee Lenker was a member of appellee-defendant Homeowners’ Association of Sibley Forest, Inc. (Association) and, for a fee, Racetrac rented the Association’s clubhouse and pool facility as the site for the party. The Association had contracted with appelleedefendant Swimatlanta Pool Management, Inc. (Swimatlanta) to provide lifeguard services at its pool and, pursuant to that contract, Swimatlanta was providing lifeguard services at the party. As a Racetrac employee, appellant-plaintiff Charles Moon was invited to the party and he attended. At the party, Moon was seriously injured when he either dove or was thrown into the shallow end of the pool. Seeking to recover damages on account of his injuries, Moon and his wife filed suit against the appellees. After answering and engaging in discovery, Lenker, the Association and Swimatlanta moved for summary judgment. The trial court granted the motions and two separate notices of appeal were filed. The two appeals are hereby consolidated for disposition in this single opinion.

1. If the evidence of record is construed most favorably for Lenker, the Association and Swimatlanta, then Moon voluntarily dove into the shallow end of the pool. However, the evidence of record must be construed most strongly against them and most favorably for the Moons. When this is done, a jury would be authorized to find that Moon was involuntarily pulled to the edge of the pool by two other guests and only after he was then forcibly thrown forward did he instinctively raise his arms in a diving motion.

“ ‘The defense of assumption of risk presupposes (1) that the [822]*822plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom[;] and (3) that he voluntarily exposed himself to such risk.’ [Cit.]” Abee v. Stone Mtn. Memorial Assn., 169 Ga. App. 167, 169 (1) (312 SE2d 142) (1983), aff’d 252 Ga. 465 (314 SE2d 444) (1984). Obviously, if Moon “dove” only after he was involuntarily thrust toward the edge of the pool and into the shallow end, he did not voluntarily assume the risk of so doing. His “dive” would have been precipitated by the unauthorized actions of those who threw him into the pool, not by his own voluntary decision to risk the perceived danger of entering the shallow end of the pool headfirst. Compare Plantation at Lenox &c. Assn. v. Lee, 196 Ga. App. 420, 421 (2) (395 SE2d 817) (1990); Bunch v. Stanton, 174 Ga. App. 233, 234 (1) (329 SE2d 538) (1985) (voluntary dive which was immediately preceded only by verbal threats rather than reflexive “dive” which was precipitated by physical act of another). Accordingly, a genuine issue of material fact remains as to whether Moon assumed the risk of diving into the shallow end of the pool and the grant of summary judgment would not be authorized on the basis of that defense.

2. As noted, the Association’s clubhouse and swimming pool facility had been rented for a fee by Racetrac as the site for the party to be hosted by Lenker. Accordingly, Racetrac and Lenker were, as to the Association, tenants, and Moon, as a guest of Racetrac’s and Lenker’s was, as to the Association, an invitee. Plantation at Lenox &c. Assn. v. Lee, supra at 421 (1). However, Moon was, as to Racetrac and Lenker, a social guest and a licensee because “. . . Georgia has adopted the rule that a social guest is not an invitee but is a licensee. [Cits.]” Barry v. Cantrell, 150 Ga. App. 439, 440 (1) (258 SE2d 61) (1979).

“[Wjhere the alleged injury is caused by [an] alleged dangerous statical condition [on] the [premises], no duty arises, with reference to . . . the licensee, ‘of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, mantraps, and things of that character.’ [Cits.]” (Emphasis supplied.) Leach v. Inman, 63 Ga. App. 790, 792 (12 SE2d 103) (1940). However, Moon’s injury was not allegedly caused by any dangerous static condition of the land itself, but by the dangerous act of other guests to which he was subjected while attending a party being held thereon. It is not the swimming pool that Moon alleges to be the cause of his injury, but the act whereby he was involuntarily thrown into the shallow end of that swimming pool. “The fundamental concept of this class of cases . . . is of a liability only for wilful and wanton injury, but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act [823]*823being done ... on one’s premises.” (Emphasis supplied.) Cook v. Southern R. Co., 53 Ga. App. 723, 726 (3) (187 SE 274) (1936). “As to a licensee whose presence is discovered and after his position of peril is known, or should have been known, it may be wilful or wanton to fail to exercise ordinary care to prevent injuring him.” Murray Biscuit Co. v. Hutto, 115 Ga. App. 870, 872 (2) (156 SE2d 132) (1967). “After the presence of the licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited. [Cits.]” (Emphasis supplied.) Cook v. Southern R. Co., supra at 727 (3).

Construing the evidence most strongly against Lenker, he not only had actual knowledge that some of his guests were engaging in the potentially dangerous activity of throwing other unwilling guests into the pool, he had actually instigated that very activity by his initial suggestion that the guest of honor be thrown into the pool. Likewise, there is evidence that Lenker had actual knowledge that Moon was an intended target of this potentially dangerous activity, but did nothing to prevent or dissuade his boisterous guests from throwing the unwilling Moon into the shallow end of the pool. Thus, a jury would be authorized to find that Lenker, after discovering that Moon was in a position of peril as the result of the potentially dangerous act of some of the other guests, wantonly and wilfully failed to exercise ordinary care to prevent Moon’s injury at the hands of those other guests and that Lenker was, therefore, liable for the injury notwithstanding Moon’s status as a licensee. Since “the presence of [Moon was] known, exactly the same acts of caution may be required of [Lenker] to satisfy the legal duty as would be necessary if [Moon] were [an invitee]. [Cits.]” Cook v. Southern R. Co., supra at 727 (3). “ ‘An owner of premises is liable to a guest . . . when the owner has reason to anticipate the misconduct of the guest inflicting the injury.’ . . . [Cit.]” Veterans Org. of Fort Oglethorpe v. Potter, 111 Ga. App. 201, 206 (2) (141 SE2d 230) (1965). “[A] jury could reasonably find that [Lenker] was guilty of negligence if he could expect or anticipate violent conduct on the part of one guest toward another guest.” Georgia Bowling Enterprises v. Robbins, 103 Ga. App. 286, 288 (119 SE2d 52) (1961).

However, in Bunch v. Stanton, supra at 235 (1), we held: “While it would be reasonable to infer that [the defendant] was aware that [guests] were being thrown into the pool before [the plaintiff] was forced in, and to further infer that he knew this was a dangerous activity with respect to the safety of persons, the licensee [plaintiff] knew also. . . .

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Moon v. Homeowners' Ass'n of Sibley Forest, Inc.
415 S.E.2d 654 (Court of Appeals of Georgia, 1992)

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Bluebook (online)
415 S.E.2d 654, 202 Ga. App. 821, 24 Fulton County D. Rep. 18, 1992 Ga. App. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moon-v-homeowners-assn-of-sibley-forest-inc-gactapp-1992.