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Royal v. Armstrong2/1/2000
Appeal by plaintiffs from judgment entered 25 August 1998 by Judge Robert L. Farmer in Johnston County Superior Court. Heard in the Court of Appeals 28 October 1999.
Plaintiffs appeal the trial court's grant of defendants' motion for summary judgment in this negligence action. We affirm.
On 17 July 1999, defendants (Mr. and Mrs. Armstrong) hosted a pool party for Robbie Burton. Eight-year-old Darion Tyron Royal (Darion), who had visited defendants in the past, was one of the invited guests. Darion's grandmother, plaintiff Janice Royal, and Darion's mother dropped him off at defendants' house around 6:17 p.m. At that time, Darion had known how to swim for approximately one and one-half years. The children were not allowed to enter defendants' private pool until Mrs. Armstrong came home from work. When Mrs. Armstrong arrived, which was shortly after Darion's appearance, she set down for the children several rules for using the pool. One of the rules was that each child should wait until the diving area was clear of other children before jumping or diving off the diving board.
Once Mrs. Armstrong briefed the children, they were allowed to swim. Although the numbers varied, between seven and ten children were usually in the pool at any given time. A few minutes after opening the pool for use, Mrs. Armstrong asked Brian and Liz Burton, parents of the guest of honor, to watch the swimmers. While the Burtons stayed outside by the pool, Mrs. Armstrong went inside the house to prepare hotdogs for the children. Other parents who attended the party helped Mrs. Armstrong inside the house. She could see the pool from her vantage point in the kitchen.
Mr. Armstrong arrived home around 6:45 p.m. When he entered the pool area, he saw Mrs. Burton near the pool-side table and Mr. Burton close to the pool's ladder. He spoke briefly with the Burtons before joining Mrs. Armstrong and other adults who were preparing food in the house. Before going inside, he saw some children in the shallow end of the pool, while others were getting out of the water to jump off the diving board, but did not observe any unusual behavior.
Mr. Burton was a swimmer and had experience as a lifeguard. He observed that the children were all having a good time in the pool. Some were playing a game with a "nerf" type ball in which one child would throw the ball as another child would run off the diving board in an attempt to catch it. Mr. Burton instructed the children not to run to the board and to be sure the diving area in front of the board was clear before jumping off the diving board.
After the "nerf" game ended, some of the children, including Darion, remained in the deep end of the pool. Mr. Burton continued to observe the children in both ends of the pool. He noticed that Darion was sitting at the bottom of the pool. Although his first reaction was that Darion was playing, he was concerned and told one of the children to swim down to check on Darion. When the child surfaced, he reported to Mr. Burton, who had risen from the chair in which he had been sitting, that Darion was fine and that his eyes were open. Mr. Burton sent the child back down to have Darion come up. The child brought Darion to the surface, and Mr. Burton pulled him out of the water and began administering CPR.
Mr. Armstrong had been in the house only a matter of minutes when someone rushed in to report something was wrong with Darion. Mr. Armstrong immediately went out to the pool where Mr. Burton was administering CPR. The two men were able to expel some water from Darion's lungs. Paramedics transported Darion to the hospital, but he did not survive. The cause of death was drowning. No one at
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