Plantation at Lenox Unit Owners' Ass'n v. Lee , 196 Ga. App. 420 ( 1990 )

Deen, Presiding Judge,

dissenting.

The facts in this case are similar to those in George v. Brandychase, Ltd., Partnership, 841 F2d 1094 (11th Cir. 1988); therefore, we cannot conclude that as a matter of law the plaintiff/movant’s own negligence was the proximate cause of his injury, thereby barring his recovery. The proximate cause issue must go to the jury. This court erroneously determined these issues as a matter of law. The record is sufficient to establish that due to the shadows cast upon the pool by the partial lighting, it was difficult to ascertain the depth of the pool. The affidavits of several party goers in conjunction with the expert affidavit support this proposition. Although the plaintiff stated that he could not see the bottom of the pool, it was for the jury to decide whether his conduct superseded that of the defendants’ and thus was the proximate cause of his injury. We should affirm the trial court’s denial of this motion for summary judgment, and I respectfully dissent.

Decided May 24, 1990 Rehearing denied July 16, 1990 — Cert, applied for. Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Stefan E. Ritter, for appellant (case no. A90A0417). Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Julie L. Ginden, for appellant (case no. A90A0418). ' Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this opinion.