Opinion
38424.
DECIDED SEPTEMBER 8, 1960.
Action for damages. Floyd Superior Court. Before Judge Hicks. April 25, 1960.
Fullbright Duffey, Henry J. Fullbright, Jr., for plaintiff in error.
Wright, Rogers, Magruder Hoyt, E. Lamar Gammage, Wade C. Hoyt, Jr., contra.
The allegations of the petition with respect to the issues of negligence of the defendant and the contributory fault of the plaintiff will not be resolved by this court as a matter of law. The issues presented are properly matters to be determined by the jury on the trial of the case.
DECIDED SEPTEMBER 8, 1960.
Ronald D. LaRue brought this action in tort for injuries allegedly caused by the negligence of the defendant, Roy Knowles, in the operation of a swimming pool. The petition alleges in substance the following. The plaintiff paid the customary fee for admission to the swimming pool. The plaintiff sustained an injury while attempting to perform a back dive or back flip from the north side of the swimming pool. The accumulation of water, trash, and other litter at the point of his dive caused his foot to slip as he was attempting the dive. The plaintiff's body entering the pool was turned in such a manner that his head and neck struck "the extended sharp edge of the drainage trough." The drainage tough is built into each side of the four sides of the swimming pool. The drainage trough is located on the inside of the four sides of the pool approximately five inches from the top of the pool, extending downwardly toward the bottom of the pool approximately three and one-half inches, and outwardly from the edge of the pool toward the center of the pool approximately two inches. It is constructed with a sharp and dangerous edge. At the time of the plaintiff's injury the drainage trough was approximately at the water line and "was almost if not completely hidden or concealed by the water in said pool," and the location and condition of the drainage trough was unknown to the petitioner.
The plaintiff was stunned and unable to remove himself from the swimming pool as a result of his injury. He was removed from the pool by persons unknown, whereupon the defendant's lifeguard lifted petitioner's head any body off the concrete wall and "did rotate petitioner's head and neck about for from thirty seconds to one minute," which allegedly caused the plaintiff to be permanently paralyzed from his shoulders down.
The defendant filed a general demurrer to the petition, asserting that neither the petition nor the allegations thereof are sufficient in law or equity to set forth any cause of action. The demurrer further charged that the petition failed to allege any act of negligence which was the proximate cause of the plaintiff's injury, and further that the petition shows that the cause of the plaintiff's injury was his own negligence in making a back dive from the edge of the swimming pool. The plaintiff amended paragraph 23 of the petition, alleging that the acts of negligence set forth therein were the sole and proximate cause of the plaintiff's injury.
The trial court overruled the demurrers as renewed, to which the defendant excepted, bringing the issue to this court for review.
The only question to be resolved in this case is whether the petition as amended sets out a cause of action against the defendant. Nine separate allegations of negligence are charged by the plaintiff's petition: "(a) In allowing trash, paper and other litter to accumulate around the sides and edges of said pool and in the swimming and diving area. (b) In allowing water to accumulate in puddles around the sides and edges of said pool and in the swimming and diving area. (c) In allowing and permitting said pool to be constructed so as to have said drainage trough and the edge of said drainage trough extending out from the edge of the pool and concealed by the water in said pool, thereby creating an extremely dangerous situation and swimming area for swimmers and divers. (d) By failing to properly inspect said swimming pool and the construction of said pool so as to have discovered the dangerous location of said drainage trough and its sharp edge. (e) In failing to warn the public generally, and petitioner in particular, of the dangerous location and condition of said drainage trough and its sharp edge. (f) By permitting said drainage trough to remain in said swimming pool after actual knowledge of its dangerous location and condition. (g) In defendant's agent lifting, moving and rotating the head and neck of petitioner contrary to standard and approved medical procedure for treating a person having a head and neck injury. (h) In defendant's agent moving petitioner's head and neck after he knew or should have known of petitioner's injury and the seriousness thereof. (i) In employing life guards which he held out and allowed them to be held out as having competent first aid knowledge and skill when, as a matter of fact, said life guards were not competent and did not have the necessary skill in first aid or medical skill to render aid to stricken and injured swimmers."
Initially let us say that it is clear from the petition that the plaintiff was an invitee on the defendant's swimming pool property.
Under Code § 105-401 the owner or occupier of the land is liable in damages to those expressly or impliedly invited upon the premises for such damage as is occasioned by his failure to exercise ordinary care to keep the premises and approaches safe. Ordinary care or diligence is defined in Code § 105-201 as that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. A legion of decisions by this court have pronounced the rule that questions of negligence and diligence are ordinarily referred to the jury for settlement. Thus, such questions are for the jury, and the courts will decline to solve them on demurrer except in plain, palpable, and indisputable cases. Holland v. Boyett, 212 Ga. 458 ( 93 S.E.2d 662), Henderson v. Henderson, 94 Ga. App. 64 ( 93 S.E.2d 822). Where reasonable minds might disagree as to whether the alleged acts constitute an action of negligence, a question for the jury is presented. Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159 ( 91 S.E.2d 135). Negligence is a question particularly for the jury. Harris v. Combs, 96 Ga. App. 638, 644 ( 101 S.E.2d 144).
Where the danger is not apparent, the possessor of the land has the duty to exercise ordinary care to make the condition reasonably safe or to give a warning adequate to enable the invitee upon the premises to avoid harm. See II Restatement of Torts § 343. An allegation of the petition here charges, among other things, that the defendant was negligent in having a concealed or partially concealed drainage trough located around the edge of the pool. As against a general demurrer, this alone seems to be a sufficient allegation of negligence. In addition to this, another specification authorizes the introduction of evidence from which a jury might find that the defendant was negligent in allowing trash, paper, and other litter to accumulate around the edges of the pool and in the swimming and diving areas. The same conclusion also applies to the allegation that the defendant was negligent in failing to give the plaintiff warning to the hazards which the drainage trough created.
The other alleged acts of negligence relate to the employment of the lifeguard who, it is contended, was held out as having competent first aid knowledge and skill which he either did not have or did not exercise, and produced the paralysis of the plaintiff by rotating his neck in an apparent effort to revive the injured one. Whether there is any duty upon the proprietor of a swimming pool to employ lifeguards who have skill in first aid generally, we do not find it necessary to decide. However, we do not eliminate the possibility that a jury in this case could find that the efforts, allegedly negligent, of the lifeguard to revive the injured person were within the general scope of his employment, and thus would bind the employer under the principles embodied in Code § 105-108, to wit: "Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." See Prince v. Brickell, 87 Ga. App. 697, 700 ( 75 S.E.2d 288).
Taking the acts of negligence of the defendant as alleged in the petition, we hold that they are sufficient upon proper proof to submit the case to the jury, whose peculiar province it is to determine these issues of negligence and diligence.
Coming now to the assertion of the general demurrer that the petition shows on its face that the plaintiff's own negligence caused his injuries, we hold that this issue too, the issue of contributory fault or assumption of risk, is for the jury to unravel. The petition alleges that the plaintiff had no knowledge of the presence of this almost completely hidden drainage trough. Furthermore, it is certainly clear that the petitioner could not foresee or anticipate the lifeguard's twisting his neck after his injury. The defendant argues that the plaintiff is barred from recovery because of his own intentional and wilful action in attempting to perform a back dive or back flip from a wet concrete surface at the edge of a swimming pool. We cannot conclude as a matter of law that we should hold that diving from the edge of a swimming pool is such negligence as to bar the petitioner from recovery for his injury sustained when he strikes an allegedly concealed dangerous condition. Again, we perceive this to be a matter for the jury to pass upon. The question as to whether or not the plaintiff is the exercise of ordinary care is a question of fact to be passed on by the jury. Johnson v. Collins, 98 Ga. 271 ( 26 S.E. 744); Townley v. Rich's, Inc., 84 Ga. App. 772 ( 67 S.E.2d 403). "One cannot be continuously on the lookout for unsafe conditions. . . The general rule that issues of negligence are peculiarly for the determination of the jury will be followed here." Martin v. Henson, 95 Ga. App. 715, 738 ( 99 S.E.2d 251). In this case the issues of negligence of the defendant and the contributory fault of the plaintiff, we conclude in obedience to abounding authority, are questions which should not be resolved by this court as a matter of law. "The question cannot be resolved as a purely legal question because obviously it is one concerning which reasonable men might differ." Cooper v. Anderson, 96 Ga. App. 800, 809 ( 101 S.E.2d 770).
The trial court did not err in overruling the defendant's demurrer to the petition as amended.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.