                             THIRD DIVISION
                            ELLINGTON, P. J.,
                        ANDREWS and RICKMAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   August 17, 2017




In the Court of Appeals of Georgia
 A17A1842. FRAZIER v. GODLEY PARK HOMEOWNERS
     ASSOCIATION, INC. et al.

      ANDREWS, Judge.

      This appeal is from the grant of summary judgment for the defendants in an

action arising out of a drowning death at a community swimming pool. We affirm.

      On July 4, 2014, four-year-old King Frazier drowned in a swimming pool

operated by the defendants for the residents and guests of the Godley Park residential

community in Savannah, Georgia. He was at the pool with his mother and several

relatives, none of whom were residents of that community. But his aunt was a resident

there, and although she was not there that day, she had given her relatives her pool

key card so that they could access the pool.
      The pool was very crowded that day, and King was under water for almost five

minutes before he was discovered. Resuscitation efforts by his mother and a nurse

who was at the pool failed. Emergency personnel were called, but it took them almost

twenty minutes to arrive, partly due to some confusion over the address of the pool.

      King’s father commenced this action against the Godley Park Homeowners’

Association, Gold Crown Management, Inc., and Aaron Hettesheimer in his

individual capacity as property manager for Gold Crown, blaming King’s death on

their negligent management of the pool. The trial court granted summary judgment

for the defendants, and this appeal followed. In granting summary judgment for the

defendants/appellees, the trial court found that King was a trespasser; that the

appellees had owed him only a duty of not wilfully or wantonly injuring him; that the

appellees did not breach that duty; and that none of the appellees’ actions caused

King Frazier’s death.

      The appellant contends the trial court erred in finding King Frazier was a

trespasser. We agree. The aunt who provided the pool key card for accessing the pool

was a resident of the community, and as such she was an invitee. See Gaydos v.

Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994). And “[a]

guest of a tenant is an invitee upon the premises of the landlord where he is invited

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by the tenant and visits him in such premises.” (Citation omitted.) Paul v. Sharpe, 181

Ga. App. 443, 444 (1) (352 SE2d 626) (1987).

      The trial court’s basis for finding King Frazier a trespasser was the

homeowners’ association rules requiring that residents register before getting a pool

key card, and accompany any guests invited to the pool. The aunt did neither in this

case, but she claimed never to have been informed of such requirements. She also

stated that she had frequently allowed her family to use her key card to gain access

to the pool, and that the pool was often open and unlocked so that anyone could get

in even without a key card. “An invitation may arise from known customary use, and

it may be inferred from conduct or from any state of facts upon which it naturally and

necessarily arises.” (Citation omitted.) Chambers v. Peacock Constr. Co., 115 Ga.

App. 670, 676 (3) (155 SE2d 704) (1967).

      It thus appears at least a jury question existed as to whether King Frazier was

a trespasser or invitee. However, even assuming King Frazier was an invitee, the trial

court correctly concluded that the appellees were entitled to summary judgment on

the grounds they had not been negligent in any fashion.

      The appellant contends the appellees had been negligent in three ways: 1. by

failing to have a lifeguard present; 2. by failing to have a safety rope with floats

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demarcating the change in slope from the beginner’s area of the pool (having a depth

of three feet or less) to the shallow area of the pool (having a depth of five feet or

less) ; and 3. by failing to post a sign displaying the pool’s address. With regard to

the need for a lifeguard, it was undisputed that the appellees posted signs at the pool

that no lifeguard was present, and that the applicable safety regulations for swimming

pools did not require the provision of a lifeguard for the type of pool maintained by

the appellees at Godley Park.

      The Godley Park pool was a zero depth entry pool, having the same gradual

slope starting from zero feet at the edge of the pool to the deepest part (with a depth

of five feet.) Chapter 290-5-57-.05(4)(b) of the Chatham County Department of

Public Health regulations for swimming pools requires flotation lines at “[t]he

transition point or point of slope change of the pool from the beginners’ area to the

shallow area and from the shallow area to the deep area. . . .” (Emphasis supplied.)

As there was no change in the slope or break in grade at any point in the gradual slope

of the Godley Park pool, the Chatham County swimming pool inspectors found that

regulation inapplicable to a zero depth entry pool and that no flotation line was

required. Likewise, both the district environmental health director for the coastal

health district and a licensed instructor for the National Swimming Pool Foundation’s

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Certified Pool and Spa Operator’s Course indicated the applicable rules and

regulations for swimming pools did not require a flotation line for the configuration

and depth of the Godley Park pool.

       The appellant adduced the deposition testimony of an expert who interpreted

that regulation as requiring a flotation line at the three feet level of the Godley Park

pool, where the beginners’ area ended and the shallow area began. However, the

appellant’s expert’s interpretation of the regulation was mistaken, as the regulation

clearly applies only where there is a transitional change in slope of the pool’s floor.

      The appellees maintained an emergency land-line phone station at the entry

area of the pool. At the time of the incident, there was no address posted by the

emergency phone. The pool’s street address was posted at the street. After King

Frazier was retrieved from the pool, several observers called 911 on cell phones, and

did not use the land-line emergency phone which would have indicated the exact

address to the 911 operator.

      The appellant contends the possible confusion over the correct address related

to the 911 operator, which might have been avoided if the appellees had posted the

pool’s address by the emergency phone, may have contributed to the late arrival of

the emergency responders. However, according to the appellees’ expert who was a

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licensed instructor for the National Swimming Pool Foundation’s Certified Pool and

Spa Operator’s Course, Godley Park’s signage was Code compliant; Godley Park was

not required to post an address at the pool’s location, and the street signage properly

displayed the street address.

      Moreover, the evidence was undisputed that the arrival time of the emergency

responders had no bearing on King Frazier’s death. The doctor who performed an

autopsy on the child testified that it was unlikely he could have been resuscitated after

being under water for four minutes. Even the appellant’s own swimming pool expert

was of the opinion it served no purpose to criticize the adequacy of the rescue efforts,

because by the time the child was discovered at the bottom of the pool, it was way too

late. So any delay in arrival time of the emergency responders did not contribute to

King Frazier’s death.

      “An owner of a swimming pool is not an insurer of its safety but is liable for

injury only if its negligence was the proximate cause of the injury.” (Citation

omitted.) Plantation at Lenox v. Lee, 196 Ga. App. 420, 423 (395 SE2d 817) (1990).

“Regardless of the age or capacity of the injured person, if there is no breach of any

legal duty on the part of the defendant toward such person, there can be no legal

liability.” (Citation and punctuation omitted.) Winchester v. Sun Valley-Atlanta, 206

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Ga. App. 140, 142 (424 SE2d 85) (1992). In the instant case, even if King Frazier

were considered an invitee and the appellees owed him a duty ordinary care, the

evidence of record failed to show any type of negligence on the part of the appellees

that contributed to his drowning death. Rather, as indicated in the report by the police

officer who investigated the incident, the evidence showed “lack of proper adult

supervision.”

        Accordingly, the trial court properly granted summary judgment for the

appellees.

        Judgment affirmed. Ellington, P. J.,concurs. Rickman, J., concurs in judgment

only.




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