On August 13,1994, Carl A. Lemon, deceased, was a social guest at rental property owned by John Martin, defendant-appellee. The deceased and his wife, Alice Johnson-Lemon, plaintiff-appellánt, were guests of plaintiff’s sister, Wanda Gatrell and her husband, John, the defendant’s tenants, and had been invited to a barbeque there and to swim in the pool maintained on the rental property. The home was at 6827 Rockbridge Road, Stone Mountain, DeKalb County, and the pool was subject to DeKalb County regulation. The deceased dove into the pool, which had no depth markings, and received what appeared to be a head injury prior to drowning. All the people present were non-swimmers, and the deceased drowned because the non-swimmers had no way to rescue or to assist the deceased before he drowned. The pool had not been maintained with appropriate rescue equipment, i.e., safety flotation devices, shepherd’s hook, or life line, which could have saved the deceased or allowed the non-swimmers to enter the pool safely to save the deceased prior to his drowning. Despite the efforts of the plaintiff to reach her drowning husband, without safety equipment he sank to the bottom of the pool and drowned before he could be reached.
Defendant had the pool built in 1979, while he lived there, and knew that the pool had no visible depth markings. Defendant later moved to Walton County but kept the home as rental property. When the Gatrells rented the property, they asked defendant for the depth of the pool; however, defendant did not know the depth and told them that he would have the depth measured. He never did. However, defendant testified that he told Mr. Gatrell the depth of the pool. As such, there is a conflict with testimony. Defendant never furnished the pool with appropriaté safety equipment, either during his resi *580 dency or during the rental of the property. Under the terras of the lease, defendant expected that the pool would be used by the tenants and their guests.
Mr. Gatrell testified that he discussed with the deceased where the deep end began just prior to leaving for work that day and showed him which was the deep end of the pool, but did not tell him the depth of the pool prior to the deceased’s diving into the pool. Mr. Gatrell was uncertain as to the depth of the pool in the deep end. He just estimated the depth at six to eight feet. The deceased did not know how deep the pool was. The deceased had never been in the pool prior to the time that he died. On the day that the deceased drowned, Mr. Gatrell had to suddenly leave his guests because of a work emergency and was not present when the drowning occurred. No one was in the pool when he left, nor had they been that day. The drowning occurred four or five hours after Mr. Gatrell left.
Defendant was sued on August 1, 1996, for wrongful death and recoverable administratrix’s damages. Defendant was personally served on August 6, 1996. Defendant timely answered on September 5, 1996. On October 2, 1997, defendant filed a motion for summary judgment. Plaintiff filed a response along with the affidavit of expert witness Theodore R. Boyette in opposition on October 29, 1997.
Mr. Boyette, from his curriculum vitae, qualified as an expert witness as to water safety and proper pool management. Based upon the facts stated in the complaint, he gave the expert opinion that the defendant breached the standard of care, which caused injury to the deceased by: “1. [flailing to have safety equipment around the swimming pool or upon the property for others to aid a drowning victim; 2. [flailing to have adequate warnings to place probable users on notice of the dangers associated with swimming and diving; 3. [flailing to conform a leased public pool to the swimming pool regulations of DeKalb County.” He went on to testify that “[w]hen a swimming pool is in operation for profit upon a commercial property, even if it is leased as a private residence, it should at least have a safety line, a light but strong pole or shepherd’s crook and a throwing buoy with length equal to the width of the pool so that swimmers might be aided in a drowning situation. Furthermore, numbers should be tiled or painted on the side and top of the pool edge to warn swimmers and divers of the depth of the pool in various locations. . . . Had the swimming pool devices and warnings been available, the average user would have notice of the dangers associated with swimming and diving and would have been capable of being rescued in the event of drowning. . . . Defendant’s omission in providing warnings and safety equipment deviate from the ordinary care necessary to protect swimmers and non-swimmers from the hidden dangers associated with swimming and diving.”
*581 After oral argument, the trial court granted summary judgment. Plaintiff filed a timely notice of appeal.
The plaintiff’s enumeration is that the trial court erred in granting defendant’s motion for summary judgment. We agree.
1. The first issue that must be addressed is whether or not the DeKalb County pool rules and regulations have been judicially determined for purposes of negligence per se. OCGA § 9-11-43 (c) states: “[a] party who intends to raise an issue concerning the law of another state or of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court’s determination shall be treated as a ruling on a question of law.” In the complaint, plaintiff pled the DeKalb County pool regulations, which satisfied the requirements of notice to the court and opposite party. See
P. G. L. & C. C. Employees Credit Union v. Kimball,
“A party intending to rely upon a foreign law is not required to provide the court with copies of that law; rather, they must only provide notice of their intent to do so in the pleadings or otherwise.”
Fortson v. Fortson,
supra at 828. “We therefore conclude that notice of intent to rely on foreign law is required before a
party
can establish such law in accordance with any of the three statutory methods or place a duty on the trial court to judicially recognize foreign law as published by authority.” (Emphasis in original.)
Samay v. Som,
supra at 814. “[WJhere a party gives reasonable notice of intent to rely on foreign law, the trial court has a duty, as well as the right, to refer to and consider the foreign law ‘as published by authority,’ whether or not the party produced it.”
Meeker v. Eufaula Bank &c.,
While a municipal or county ordinance, for purposes of proof, is treated as foreign law, such law cannot be judicially noticed by any court other than the court of such jurisdiction, because the ordinance is not “published by authority.” See generally
Oliver v. City of Macon,
2. However, the trial court should have considered the affidavit of plaintiff’s expert witness, because this evidence created factual issues as to the deceased’s knowledge of a latent defect and as to the landlord’s liability for his allegedly negligent creation and maintenance of latent defects, which arose from his construction of the pool and his failure to properly equip the pool perpetuated. See OCGA § 44-7-14;
Colquitt v. Rowland,
“An expert may give his opinion merely because he is an expert [OCGA § 24-9-67], and any witness may give his opinion if he testifies to the facts on which such opinion is based [OCGA § 24-9-65], but in no case where the facts are before the trior of facts can it be said that a judgment is demanded as a matter of law based upon the opinions expressed, for the trior of facts may arrive at a different conclusion based upon the evidence introduced and is not bound by the opinion testimony. [Cits.] . . . [O]pinion evidence adduced by the respondent is sufficient to preclude the grant of a summary judgment[.] [Cit.]”
Harrison v. Tuggle,
Judgment reversed.