Wallace v. Boys Club of Albany, Georgia, Inc.

439 S.E.2d 746, 211 Ga. App. 534, 93 Fulton County D. Rep. 4551, 1993 Ga. App. LEXIS 1563

• Court: Court of Appeals of Georgia
• Decided: December 3, 1993
• Docket: A93A1374
• Status: Published

Opinions

Pope, Chief Judge.

Plaintiffs, a child and his parents, appeal from the trial court’s grant of summary judgment for defendant Boys Club.

We view the evidence in the light most favorable to plaintiffs as the non-movants on a motion for summary judgment. Jonquary Wallace, a five-year-old boy,¹ participated in defendant’s summer day camp program. Defendant’s employees testified that the boys in the program were to be under the direct supervision of an adult staff person at all times. There was also testimony that a desk by the front door was manned at all times, and that the staff person at that desk should not have permitted a young child to just walk out the door. Nonetheless, one day Jonquary was able to walk out the front door and go around the building to look at the swimming pool without adult accompaniment. He was then abducted and assaulted. Defendant’s staff did not notice his absence until Jonquary’s older brother brought it to their attention. A search proved fruitless until someone heard that a young boy had been found in the woods by the police, and that young boy turned out to be Jonquary. About a month before Jonquary’s abduction and assault, defendant called Jonquary’s parents and told them Jonquary was missing. After a thorough search of the premises, Jonquary was found asleep in a small room in the library. Jonquary’s parents expressed concern about defendant and its security procedures at that time. When two of defendant’s employees reassured them and promised them that the staff would watch Jonquary and keep track of his whereabouts, however, Jonquary’s' parents allowed him to continue to attend the camp.

Plaintiffs sued defendant for negligence in its supervision of Jonquary. The trial court granted summary judgment, utilizing a premises liability analysis and stating that a heightened standard of care did not result from defendant’s undertaking to supervise the child because “[t]here is no evidence of reliance by the parents of Jonquary Wallace on any promise by the defendant to protect Jonquary from the criminal acts of third persons.”

1. Plaintiffs argue that the trial court erred in treating this as a premises liability case rather than one involving negligence in the supervision of a child of tender age. We agree. Thus, the applicable duty of care is that set forth in Laite v. Baxter, 126 Ga. App. 743, 745-746 (2) (191 SE2d 531) (1972): “ ‘[T]he measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.’ [Cit.] ‘The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances.’ [Cit.] ‘As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.’ [Cit.]” See also 57 AmJur2d, Negligence, § .204. Applying this standard to the facts of this case, we conclude that a material issue of fact exists regarding whether a prudent person caring for a five or six-year-old child under similar circumstances would have allowed the child to leave the building without an older person, and thus whether defendant breached its duty of care. See also Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (3) (394 SE2d 345) (1990) (“even in premises liability cases, the age of the injured person is relevant,” and landowner may be held to higher standard of care toward a child than toward an adult).

Moreover, there is evidence that defendant undertook to ensure that Jonquary was under the direct supervision of an adult at all times and that a child of his age would not leave the building unattended or unquestioned. And contrary to the trial court’s statement in its order granting summary judgment for defendant, there is evidence that defendant promised to watch Jonquary and keep track of his whereabouts, and that Jonquary’s parents relied on that promise. When one promises to do something and another reasonably and foreseeably relies on that promise, the promisor has a duty to perform the promised act in a non-negligent manner. Mixon v. Dobbs Houses, 149 Ga. App. 481 (254 SE2d 864) (1979). Accordingly, the duty imposed on defendant in this case is not only the general legal duty owed by anyone who undertakes the care of a child but also the duty arising from defendant’s policies, its promises to Jonquary’s parents to enforce those policies and Jonquary’s parents’ reliance on those promises. See also McGarr v. Baltimore Area Council, Boy Scouts, 536 A2d 728, 734 (Md. Ct. Spec. App. 1988).

2. Defendant contends that even if it was negligent in its supervision of Jonquary, its liability for that negligence was cut off by the intervening criminal act of a third party because that intervening criminal act was unforeseeable. Because it is undisputed that no substantially similar criminal act had occurred in or around the Boys Club prior to this one, defendant argues Jonquary’s abduction and assault were unforeseeable as a matter of law. See Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991). Savannah College is a premises liability case, however, and even if a specific showing of a prior similar act on a defendant’s premises is required in a premises liability case,² it is not required in a case involving liability for the negligent supervision of a child. In a premises liability case the landowner can only be held liable for what occurs on the premises. Thus, in order to hold the landowner liable despite the intervening criminal act of a third party, the plaintiff must show that the landowner had notice of a danger specific to the premises. In the case of negligent supervision of a child, however, what is reasonably foreseeable is not exclusively dependent upon what is known about a specific place. The danger is not only what may happen at a specific place but what may happen to any child at any place, given that children are mobile and may, as in this case, wander away from the place where they are supposed to be if they are not adequately supervised. What is at issue in a case alleging negligent supervision of a child is whether the danger of the type of harm the child suffered was reasonably foreseeable. Accordingly, the fact that no similar act had previously occurred on or near the defendant’s premises is not dispositive of the issue of whether a jury could conclude the defendant had notice that the danger of abduction and assault existed in regard to a five or six-year-old child who wandered away from defendant’s premises without adult supervision.

Based on the foregoing, we cannot rule that the intervening criminal act was unforeseeable as a matter of law. One has only to read the daily newspapers, or even the reported cases of this court, to appreciate the prevalence of child abduction and abuse in our society. Perhaps no child has ever been struck by a car on the street near defendant’s premises or drowned in the nearby swimming pool, but these dangers are so obviously foreseeable that an unforeseeability argument could not reasonably be made concerning these dangers to an unsupervised child. Likewise, simply because no child had ever been the victim of abduction and assault near the defendant’s premises does not establish, as a matter of law, that such a danger to an unsupervised child of tender years is unforeseeable in this day. Though we wish it were otherwise, a jury could reasonably find that the abduction and abuse of young children who are not properly supervised is foreseeable and is one of the dangers parents and other care givers expressly protect children from by providing them proper supervision and care. That the danger in this case arose from criminal misconduct is irrelevant if it is foreseeable; the law cannot ignore the reality of what is commonly known to all who care for children. See Wallace v. Der-Ohanian, 18 Cal. Rptr. 892 (Cal. Dist. Ct. App. 1962).

Judgment reversed.

McMurray, P. J., Beasley, P. J., Cooper, Johnson and Smith, JJ., concur. Blackburn, J., concurs specially. Birdsong, P. J., and Andrews, J., dissent.

1 Boys Club membership is limited to boys of ages six through eighteen, and Jonquary’s application indicated that he was six even though he was five. However, there is evidence that Club personnel knew Jonquary was actually five years old and nonetheless allowed him to attend as a member and participate in Club activities.

2 Although Savannah College and other premises liability cases are often read to suggest that a plaintiff must always show a prior similar incident on the landowners’ premises to establish that a danger was foreseeable, we note that Savannah College does not hold that such a specific showing is always required. An absolute requirement of this nature would create the equivalent of a “one free bite rule” for premises liability, even if the landowner otherwise knew that the danger existed. Evidence of a prior substantially similar act is one way to establish notice and foreseeability, and in most cases it will be the only possible way to do so. It is conceivable, however, that a danger could be so obvious that an issue for jury determination could exist regarding notice and/or foreseeability despite the absence of a prior similar incident on those premises. And in some cases the defendant may even acknowledge that it knew of the specific danger. In Savannah College, the danger was not so obvious and there was no other evidence to create an issue of fact as to the foreseeability of the danger at issue.