ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
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.
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.
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.
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.
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 S.E.2d
545) (1994). And "[a] guest of a tenant is an invitee
upon the premises of the landlord where he is invited by the
tenant and visits him in such premises." (Citation
omitted.) Paul v. Sharpe, 181 Ga.App. 443, 444 (1)
(352 S.E.2d 626) (1987).
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 S.E.2d 704) (1967).
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
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 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
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 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.
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.
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.
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 licensed instructor for the
National Swimming Pool Foundation's Certified Pool and
Spa Operator's Course, Godley Park's signage was Code