BEFORE ROY NOBLE LEE, SULLIVAN and ANDERSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Richard Goodwin and Christine Goodwin filed suit in the Circuit Court of Harrison County, seeking damages against James O. Jackson, Sr., d/b/a Jackson's Trailer Park, and St.
Paul Fire and Marine Insurance Company, for the wrongful death of their minor child, Heather Goodwin. The lower court granted a summary judgment in favor of St. Paul Fire and Marine Insurance Company [St. Paul], and entered judgment in favor of Jackson on a jury verdict. The Goodwins have appealed from both judgments and Jackson has cross-appealed, contending that the lower court should have sustained his motion for a dismissal and directed verdict.
The body of Heather Goodwin, age 3 years ten months, was found in the swimming pool of Jackson's Trailer Park, operated by James O. Jackson, Sr., between 7:30 and 8:00 p.m. on July 8, 1981. The child lived with her parents in a house approximately seventy-five (75) yards from the trailer park. Apparently, she had wandered from home to the trailer park pool, where she drowned. The pool was enclosed by a wire fence, but the unlocked gate opening into the pool area was open.
The Goodwins filed suit claiming liability against St. Paul under Restatement (Second) of Torts 324 (A) (1965), and against Jackson, under Restatement (Second) of Torts 339 (1965). The lower court sustained a motion for summary judgment in favor of St. Paul, but submitted the case to the jury as to the liability of Jackson. As stated, the jury returned a verdict in favor of Jackson.
DID THE LOWER COURT ERR IN GRANTING SUMMARY JUDGMENT ON BEHALF OF ST. PAUL FIRE AND MARINE INSURANCE COMPANY?
At the time of the tragic incident resulting in the death of Heather Goodwin, a policy of liability insurance issued by St. Paul covered the Jacksons for all sums which they might be legally obligated to pay as damages because of bodily injury or property damages sustained on the trailer park premises. The policy did not create any obligation from St. Paul to the appellants or persons other than the insured. The policy contains the following provision in the" Conditions "section:
The Company shall be permitted but not obligated to inspect the Named Insured's property and operations at any time. Neither the Company's right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the
Named Insured or others, to determine or warrant that such property or operations are safe or healthful or are in compliance with any law, rule or regulation.
The Company may examine and audit the Named Insured's books and records at any time during the policy period and extensions thereof and within three years after the final termination of this Policy, as far as they relate to the subject matter of this insurance.
A loss prevention representative of St. Paul conducted a survey of the trailer park premises and submitted the following recommendations:
1. All trailers in this park should be properly and securely anchored. . . .
2. The swimming pool should be securely fenced with a fence not less than 5 feet high and the gate should be locked at lo o'clock at night.
3. Swimming pool rules should be posted and should include advice on hours of operation, no life guard warning, swimming for park residents only, and small children should be accompanied by an adult. . . .
4. Depth of pool should be marked on sides of pool at 2 foot intervals. . . .
5. A rope partition should separate shallow end of pool from deep end. . . .
6. A shephards [sic] crook life ring device should be available at the pool. . . .
St. Paul advised the Jacksons of the above recommendations by letter dated ...