This is an appeal by defendant landowner from a denial of his motion for summary judgment in a suit alleging negligence in maintenance upon his premises of an above-ground plastic swimming pool. Appellees are husband and wife to whom we will refer in the singular as "plaintiff’ because the action is based upon injuries received by the husband when he dove from an adjacent roof into the pool.
Our recital of facts is condensed from the plaintiffs brief:
On August 31, 1974, a hot sunny day, plaintiff, a twenty-year-old male, visited defendant’s home to collect for carpet-laying work he had previously done. While there he and his accompanying companion volunteered to do some roofing work upon defendant’s back porch. Plaintiff changed into a pair of shorts borrowed from defendant, telling defendant "that he might dive off the porch roof into the pool.” The edge of the roof was approximately one foot from the edge of a circular above-ground swimming pool in defendant’s back yard. The porch roof was approximately 8 to 10 feet from the ground and approximately 4 to 5 feet from the top of the swimming pool sides.
Plaintiff, an expert diver, had seen the pool during previous visits but had never used it. He knew that the sides of the pool were approximately 5 feet high and that the water level in the pool could not be seen through the sides of the pool. After the incident he learned that the water level on that day was approximately one and one-half to two feet below the top of the pool. He did not look at the water level before commencement of work. "... When they looked at the pool after they [plaintiff and companion] were on the porch roof and before they had any alcoholic drinks, and again after appellee Joe M. Mashburn, Jr., was intoxicated, the pool looked to [them] like it was full of water... The inside of the pool was blue in color, and the sunshine and blue color on the inside of the swimming pool made the pool look to [plaintiff] like it was full of water when in fact it was not.”
*232 Defendant provided rum drinks to plaintiff and his companion while they were at work. Although defendant disputes plaintiff’s version as to the number of drinks and denies the defendant’s knowledge of plaintiffs inebriation, we accept plaintiffs statements, as is required of the court in a summary judgment action. Plaintiff’s affidavit avers: "After I had approximately three or four of these rum drinks, Mark [defendant] and I had a conversation and I told him that I was intoxicated and Mark said to me that he agreed and could see that I was intoxicated, and after this conversation with Mark, Mark brought me a couple more rum drinks, which I drank, and these rum drinks made me even more intoxicated.” (R. 61).
The concluding paragraph of plaintiffs affidavit reads:"... when I finished my roofing work I said in a loud voice that could be heard by Mark [defendant], who was under the porch roof at the time, that I was going to dive into the pool, and then approximately one minute or so later I dived into the swimming pool and was injured.”
In seeking a reversal of the trial court’s denial of his motion for summary judgment defendant-appellant submits the issues in the form of three questions. We use counsel’s language in each division for our discussion.
1.
Whether there is a duty under Georgia law imposed upon a defendant pool owner to warn of a condition which is or should be obvious?
As the involved instrumentality was a swimming pool, we note the case of
Herring v. Hauck,
One of the allegations of negligence is the failure of defendant to warn plaintiff "of the shallowness of said swimming pool.” (R. 5). Despite the absence of a master-servant relationship, the situation here is analogous to those cases where an employee sought to recover in common law negligence from a master on the
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basis of failure of the master to give the servant notice or warning of a danger incident to his employment. The courts have ruled that it must appear that the master knew or ought to have known of the danger and that the servant did not know and had no equal means with his master of knowing such fact and by the exercise of ordinary care could not have known of the hazards. If the danger is obvious and is as easily known to the servant as to the master the latter will not be liable for failing to warn plaintiff. See
Dekle v. Todd,
This rule as to obvious danger applies also to invitees vis-a-vis landowners.
Rogers v. Atlanta Enterprises, Inc.,
Plaintiffs failure to exercise the duty of ordinary care for his own safety is similar to that which resulted in this court sustaining a summary judgment for defendant in
Simmons v. Classic City Beverages, Inc.,
Plaintiffs contention of "optical illusion” does not excuse him from his negligent conduct. Since he was aware of the pool having a total height of five feet, the language of this court in the recent case of
Lane v. Maxwell Bros. & Asbill, Inc.,
2. Whether a person who becomes voluntarily intoxicated is relieved of the duty placed upon him by the law of Georgia to exercise reasonable care for his own safety?
"In viewing the conduct of an intoxicated person, for
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the purpose of determining his negligence or contributory negligence, the state of mind produced by the intoxication may be disregarded; for he will be judged as if the conduct occurred while he was in possession of his normal mental capacity.”
Seaboard Air-Line R. v. Chapman, 4
Ga. App. 706 (1) (
The standard is not altered by the complaint’s allegation of negligence being "the supply of mixed alcoholic drinks by the defendant to the plaintiff.” (R. 5).
See Henry Grady Hotel Co. v. Sturgis,
Accordingly, plaintiff cannot avoid his duty to exercise ordinary care for his own safety with the excuse that defendant supplied him with alcoholic libations which he voluntarily imbibed.
3. Whether the last clear chance doctrine as it exists in Georgia is applicable to the instant case so as to allow a plaintiff, who otherwise could not recover, to recover against the defendant in this cause?
Plaintiff contends that the last clear chance doctrine is applicable on the basis that defendant heard him state his intention to dive into the pool and thereupon had a duty to prevent him from doing so during the minute that intervened between his statement and his unfortunate act.
As defendant’s counsel has stated the legal propositions showing the contrary to be the correct answer, we adopt these views from his brief without using quotation marks:
The courts in Georgia have stated the doctrine of last clear chance as follows:
"[I]t is only after one [the defendant] finds another [the plaintiff] who has negligently placed himself in a position of peril, and because of his [the plaintiffs] *235 helplessness is unable to extricate himself from his position of peril, that the duty arises to use ordinary care to avoid injuring him [the plaintiff],” that the last clear chance or humanitarian doctrine becomes applicable. Southland Butane Gas Co. v. Blackwell,211 Ga. 665 , 670 (88 SE2d 6 ), conformed to92 Ga. App. 288 (88 SE2d 424 ) (1955).
The principle has been found by the court to be incorporated into Code Ann. § 105-603 (See
Atlantic C. L. R. Co. v. Coxwell,
"If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases, the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.”
It is clear that the plaintiff must show, as a matter of law each of the elements of the doctrine of last clear chance in order to have it apply. The first essential element is that the plaintiff, by his own negligence, must have put himself in a position of peril from which he could not extricate himself (but the defendant presumably could have extricated him). The plaintiff, by his own affidavit, (paragraph 12) has defeated his effort to establish even this first essential element. The plaintiff states, in sum, that he announced his intention to dive from the roof into the pool, indicating thereby first that he had enough sobriety to intend to dive and to announce his intention, and second, that he appreciated what it was that he desired to do. At this point in time, the plaintiff had not placed himself in a position of peril from which he was helpless to recover, for he himself had final and complete control over whether he would or would not dive. In a similar situation, the Georgia Court of Appeals held that:
"A person who voluntarily assumes a position of imminent danger when there is at hand and accessible to him a place of safety, and by reason of having assumed such dangerous position he is injured, cannot recover against another who is also negligent.” Taylor v. Morgan,54 Ga. App. 426 (188 SE 44 ).
In this cause, the plaintiff placed himself in a *236 position of peril only when he actually dived from the roof, not when he announced his intention to do so, and from that position, no person in the known world could have extricated him, no matter how great an effort such person might make. In this regard, see also 65A CJS 138, Negligence, § 137 (3), which states that: "In order for the last clear chance doctrine to be applicable, the injured person must have been in a position of actual and imminent peril from which he could not by the exercise of reasonable care, extricate himself.”
In the instant case, the plaintiff was in no such position of actual peril while he stood on the porch roof.
The second essential element of the doctrine of last clear chance is that the defendant must have knowledge and appreciation of the injured person’s peril in time to avoid the injury. See
Southland Butane Gas Co. v. Blackwell,
In addition, the case of
Lovett v. Sandersville R. Co.,
4. Appellees’ able advocate appropriately argues those general principles which make it difficult for defendants to obtain summary judgments. This is particularly true in negligence cases. Nevertheless, courts recognize that this modern procedural device created to eliminate jury trials applies where there is no genuine issue of fact and where defendant is entitled to judgment as a matter of law under fundamental principles of negligence law. In addition to the cases mentioned earlier in this opinion where summary judgments were granted defendants in negligence cases, we cite the following as examples: (a) no duty to warn as to patent dangers:
Laite v. Baxter,
In affirming our court in this last case the Supreme Court said in
Carden v. Ga. Power Co.,
Judgment reversed.