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Howze v. Garner11/15/2005
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 11/15/2005
EN BANC.
. Blaine, Lisa Marie, and Cory Howze attended a swimming party at the home of B.J. Garner. Garner allowed his daughter to use his home and pool for the party, but Garner was not involved in the planning of the party and did not attend. Cory drowned in Garner's pool; the adult who was supervising the pool was unable to see Cory because the water in the pool was cloudy. Blaine and Lisa Marie sued Garner for creating a dangerous condition on his premises and failing to warn of the dangerous condition.
The Harrison County Circuit Court granted summary judgment in favor of Garner. The Howzes appeal, raising the following issue: WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT
. Finding no error, we affirm.
FACTS
. B.J. Garner allowed his daughter to use his premises and pool for the purpose of hosting a children's end-of-the year soccer team party, which was held on April 15, 2000. The pool was enclosed by a tent that enabled Garner to swim in his pool in colder weather. The invitation for the party stated that there would be a cost of $15 for trophies and awards given to each child and a cost of $10 per family for the meal. The invitation advised that parents of children who are not strong swimmers should provide flotation devices and that the pool would be supervised by adults. Garner did not participate in the planning of the party, he did not attend the party, and he was not advised of any of the details regarding the party.
. Blaine and Lisa Howze ("the Howzes") brought their children, seven-year-old Cory and thirteen-year-old Jarred, to the party. The Howzes were not comfortable with allowing Cory to swim without adult supervision, but they did not bring flotation devices. The Howzes did not speak with anyone regarding their concerns with Cory's swimming abilities. When Lisa saw that adults were watching the swimmers, she left her sons at the pool and went to talk with other party attendees. Lisa returned to the pool when she heard someone say that Cory had drowned. Cory was discovered at the bottom of the pool and died two days later.
. One of the parents, Russell Lanier, supervised the swimming shortly before Cory was found in the pool and was in the pool enclosure at the time Cory was discovered. One of the children told Lanier that she thought someone was at the bottom of the pool. Lanier doubted that anyone was at the bottom of the pool because Lanier was looking at the bottom of the pool and did not see anything or anyone. He asked the girl informing him of this fact to dive to the bottom of the pool and double-check. When the girl swam to the bottom of the pool, she disappeared from his sight after she swam under three or four feet of water. Lanier dove in because he realized that someone could be at the bottom of the pool without being able to see him. Lanier pulled Cory out of the pool and into the garage.
. The Howzes sued Garner for creating dangerous conditions on his premises and failing to warn of such dangerous conditions. The circuit court granted summary judgment in favor of Garner.
ANALYSIS
WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT
. Summary judgment motions are reviewed de novo. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 ( 7) (Miss.2001).Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to
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