This is a wrongful death case arising from the drowning of the decedent, Stephanie Brazier, after she rescued her 13-year-old son from a lake near their home. Arturo Brazier and Linda Brazier Francis1 collectively, “Brazier” appeal from the trial court’s grant of summary judgment to Phoenix Group Management, G.P., and its partners, Alton Housworth, Jr., Bruce Mundy, Joseph R. Singleton, Gerald Sheppard, and Robert E. Talley collectively, “Phoenix”. Brazier contends that summary judgment was improper because a jury question exists as to whether Phoenix, the developer of the property on which the lake was located, was negligent per se. He also argues that jury issues exist as to whether the decedent assumed the risk of drowning and whether her actions constituted contributory negligence. For the following reasons, we find summary judgment was proper and, therefore, affirm. “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” Citations and punctuation omitted. White v. Ga. Power Co. , 265 Ga. App. 664, 664-665 595 SE2d 353 2004. So viewed, the record shows the following undisputed facts.
In 1996, Phoenix purchased several acres of property known as Southland Units 2 and 8 in Stone Mountain. A lake was located on part of the property; the lake had been there for at least 50 years, had been used for fishing, and had never been fenced.2 Although the lake’s water level varied when it collected stormwater that drained off the surrounding properties, the lake always contained some water and never dried up. In October 1996, Phoenix entered into a sales contract with The Ryland Group “Ryland” which provided that Phoenix would develop the property and subdivide it into individual lots. Ryland agreed to purchase the lots, upon which it planned to build homes for resale. During its development of the property, Phoenix repaired the lake’s dam and constructed a spillway from the lake to allow excess water to drain off. DeKalb County officials approved Phoenix’s construction plans, repeatedly inspected the construction during development, and concluded that the county’s ordinances did not require a fence around the lake. After Phoenix subdivided the property, it filed a final plat with the county which showed that the property lines of the lots adjacent to the lake divided the lake among those lots. The final plat also contained a note that the “Lake and detention pond are to be owned & maintained by the subdivision’s Homeowners Association.” Two county officials certified that Phoenix had developed the property in compliance with the approved construction plans and with “DeKalb County Specifications and Standards.”
