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Royal v. Armstrong2/1/2000
defendants, a question we do not reach, no evidence suggests that the Burtons were negligent. They were not deposed. Mr. Burton submitted an affidavit stating that he warned the children using the diving board to be sure the diving area was clear before jumping or diving from the board, that he watched both the deep and shallow ends, and that he acted immediately when he saw Darion at the bottom of the pool. Nothing done or not done by Mr. Burton as reflected in this affidavit can be construed as negligence; instead, the affidavit presents a picture of a supervisor who was properly and appropriately vigilant. Although a witness for plaintiffs stated in an affidavit: "I also question the judgment of an individual who saw a child on the bottom of a pool, then sends another child to check on him," this expression of opinion is not evidence of negligence. There is no indication in the record or even in the affidavit quoted above that if Mr. Burton had dived in himself rather than sending another swimmer to check on Darion, the outcome would have been different. Therefore, even if the Burtons were agents of defendants, because the Burtons were not negligent, it follows that defendants cannot be deemed vicariously negligent.
In light of uncontested evidence that defendants exercised reasonable care toward Darion, the trial court properly granted defendants' motion for summary judgment as to plaintiffs' claim for wrongful death. This assignment of error is overruled.
II. Negligent Infliction of Emotional Distress.
Plaintiffs next argue that the court erred in granting defendants' motion for summary judgment as to plaintiffs' claim of negligent infliction of emotional distress. However, because we have determined above that defendants were not negligent as a matter of law, this claim also fails. This assignment of error is overruled.
The trial court's grant of summary judgment in favor of defendants is affirmed.
Affirmed.
Judges MCGEE and SMITH concur.
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