Rowland v. Colquitt , 214 Ga. App. 544 ( 1994 )

Beasley, Presiding Judge.

While a guest at a party given by Rogers, his friend Rowland sustained severe neck injuries after diving from a diving board into a swimming pool which was only four feet deep. Rowland filed the present complaint against Rogers, his stepfather Colquitt, and the pool manufacturer. Rowland appeals the trial court’s grant of Colquitt’s motion for summary judgment.

Rowland alleged in her complaint as originally filed that the pool is located on the premises of a residence owned by Colquitt and leased by him to Rogers. Rogers and Colquitt testified that Rogers leased the residence from Colquitt pursuant to an oral agreement; that Colquitt had relinquished all responsibility for inspection, maintenance, and repair to Rogers; and that Rogers made rental payments to Colquitt in the amount of $500 per month by check. Certified bank records did not show any $500 checks to Colquitt. Rowland amended her complaint to delete the allegation that Rogers leased the property from Colquitt.

It is nonetheless undisputed that Rogers lived on the property with Colquitt’s permission; that Colquitt did not live there; and that the pool was purchased, installed, and maintained by Rogers after he moved onto the property. Colquitt admitted that he knew that Rogers was installing the pool, that it was only four feet deep, and that a diving board had been attached to it.

According to Rowland, the pool was located above ground, but she was not aware that it was only four feet deep because its shallow depth was obscured by a deck and fence surrounding it; moreover, it was poorly lit and no warning signs were posted. Rowland’s testimony was to the effect that the party given by Rogers was filled with revelry. According to her, others at the party were having sexual relations in the pool, and Rogers was trying to persuade her to do the same. She admitted that she had consumed two large mixed drinks, two beers, and a “line” of cocaine provided by Rogers. However, she refused to participate in an orgy. She testified that upon being badgered and coaxed by Rogers and physically dragged by him to the pool, she agreed to go skinny dipping and dive from the diving board into the pool. She had seen Rogers dive from the board without ill effect. He did not warn her of the dangerous condition. Unaware of it, she proceeded to disrobe and dive into the pool head first with her arms extended in front of her head. She immediately hit the bottom, sustaining the injuries for which she now sues.

In moving for summary judgment, Colquitt argued that he is not liable to Rowland under the statute which controls a landlord’s liability to third persons, OCGA § 44-7-14, because the undisputed material facts show that the pool was constructed and maintained by Rogers, and Colquitt had fully parted with possession of the property. He also argued that by diving into the pool in her alcohol-and-drug affected condition, Rowland assumed the risk of injury.

1. Colquitt is not entitled to summary judgment. In this case, as in others, issues of negligence, contributory negligence, and assumption of risk are not susceptible to summary adjudication.

OCGA § 44-7-14 provides, “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” The landlord’s duty to keep premises in repair can result in making him liable for a defect in the premises of which he has notice or actual knowledge. See Hearn v. Barden, 115 Ga. App. 708, 709 (155 SE2d 649) (1967); Howell Gas of Athens v. Coile, 112 Ga. App. 732, 735 (1a) (146 SE2d 145) (1965). Where defects render premises unsafe, the landlord may not avoid these statutory duties. Roth v. Wu, 199 Ga. App. 665, 666 (1) (405 SE2d 741) (1991). Under OCGA § 44-7-13, the landlord “shall be liable for all substantial improvements placed upon the premises by his consent.”

Therefore, even though the pool was constructed and maintained by the tenant, the landlord is statutorily liable for damages arising from defective construction if he has consented to it and has notice or actual knowledge of the dangerous condition which has been created. The landlord is likewise liable for the tenant’s maintenance of a nuisance, if done with the landlord’s license or permission. It is undisputed that Rogers built the shallow pool and attached a diving board to it with Colquitt’s knowledge and permission.

Rowland argues that an issue of fact exists as to whether a landlord-tenant relationship existed between Colquitt and Rogers, and thus whether Colquitt parted with possession of the property or the right of possession, because Colquitt has introduced false deposition testimony that Rogers paid rent to him. However, when the owner of lands grants to another person simply the right to possess and enjoy the use of lands and the other person accepts the grant, the relation of landlord and tenant exists between them. Thompson v. Crownover, 259 Ga. 126, 127 (1) (381 SE2d 283) (1989). Payment of rent is not an essential element of a landlord-tenant relationship. See Black’s Law Dictionary, p. 1635 (Rev. 4th ed., 1968).

Nonetheless, it could be argued that when rent is not paid, the relationship between the parties is more in the nature of that of a host and guest, and the owner of the property is not bound by the statutory duties of a landlord. This would actually make the plaintiff’s burden greater, and Colquitt has not even advanced that argument.

If a landlord-tenant relationship did not exist between Colquitt and Rogers, then as the owner of the property Colquitt would incur liability for breach of duty to Rowland as a licensee or social guest only for wilfully and wantonly causing her injury. OCGA § 51-3-2 (b). See, e.g., Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2) (415 SE2d 654) (1992). Thus, as to a licensee, a duty arises to keep the property free of “pitfalls, man-traps, and things of that character.” Mandeville Mills v. Dale, 2 Ga. App. 607, 610 (1) (58 SE 1060) (1907), quoted recently in Francis v. Hay good Contracting, 199 Ga. App. 74, 75 (1) (404 SE2d 136) (1991), and Moon v. Homeowners’ Assn., supra. An owner owes a licensee a duty not to “ ‘knowingly let him run upon a hidden peril or wilfully cause him harm.’ ” Atlantic Coast Line R. Co. v. O’Neal, 180 Ga. 153, 156 (178 SE 451) (1935).

The definition of the owner’s duty is as follows: “ ‘A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved. . . London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (2) (267 SE2d 214) (1980). The rule imposing liability for harm to licensees “presupposes that the licensees do not know or have reason to know of the risks involved. [Cits.]” Wren v. Harrison, 165 Ga. App. 847, 849 (303 SE2d 67) (1983).

A jury could find that a diving board above a four-foot deep pool, with no warning of depth, is a hidden peril of which a licensee would not have knowledge or reason to know of the risks involved in using it in an ordinary way. Where a diving board has been attached to a swimming pool of obscured shallow depth, such improvement can be found to have been constructed in a defective manner and to constitute an unsafe and dangerous condition.

2. Under the facts and circumstances of this case as thus far developed in the record, it cannot be held that, as a matter of law, plaintiff assumed the risk that the pool into which she dove was too shallow for her dive. Whether Rowland exercised ordinary care is a jury question. Ruling otherwise means that diving from a diving board without independently determining water depth but relying instead on the presence of the board, seeing someone else dive safely from it, and judging depth from the posture of others in the pool, constitutes assumption of risk as a matter of law.

The dissent holds this to be a situation for application of the principle that “[a] person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk.” First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 281 (361 SE2d 261) (1987). A jury should decide.

“ ‘ “Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. ‘The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded as tacitly or impliedly agreeing to take his own chances.’ [Cit.] ‘[T]he courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it. [Cits.]” Lundy v. Stuhr, 185 Ga. App. 72, 75 (363 SE2d 343) (1987).

This case differs from Plantation at Lenox Unit Owners’ Assn. v. Lee, 196 Ga. App. 420, 421 (2) (395 SE2d 817) (1990), in that a jury could determine that plaintiff exercised reasonable care in relying on the presence of a diving board, and on having seen her host dive with no ill effect, as indication that the pool was deep enough for a dive. In Plantation, the plaintiff dove from the side of the pool with no indication of adequate depth.

Using alcohol and drugs and diving into a pool after ingesting such substances may be relevant to whether plaintiff assumed the risk of sustaining injury. There is conflicting evidence of whether the shallow depth of the above-ground pool was known to her. We cannot hold as a matter of law that if plaintiff had been abstinent, the shallow depth of the pool would have been a peril obvious to her or she would not otherwise have been injured. Compare Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169 (393 SE2d 64) (1990).

Judgment reversed.

Pope, C. J., McMurray, P. J., Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Birdsong, P. J., Andrews and Johnson, JJ., dissent.