*1 Ingrid Espy, appellee. Hartman, D. Solicitors, Assistant for
A94A2784. THREE, BROWN v. WHO’S INC. Judge.
Beasley, Chief
Brown
journeyed
to Atlanta on business. Before her arrival she
staying
asked the hotel at which she would be
if it had a hair salon
arrange
appoint-
and was told it did. She had someone at the hotel
an
arrival,
ment for a facial. After
she found Who’s Who Hair Salon
(Who’s
“Special
listed in the hotel’s brochure under
Services.”
Three
Who.)
conducted its hair salon business under the name Who’s
When Brown arrived аt the
which was
located
a match-
ing building
courtyard
connected to the hotel
a covered
or corri-
reclining
dor, she was led to a room with a
esthetician,
table. A facial
Al-Ansari,
Linda
inwas
the room and instructed Brown to lie on the
reclining portion
table. Sometime after Brown did so the
of the table
gave way
injured.
and she was rendered unconscious and
She sued the
theory
products liability,
unknown builder of the table on a
alleged
prem-
she
ises
thаt the hotel and salon were liable on theories of
(OCGA
liability
51-3-1),
inspecting
§
lack of due
care
maintaining
negligent supervision
table,
Al-Ansari,
and im-
puted negligence
any negligent
for
acts of Al-Ansari under the doc-
agency, respondeat superior,
apparent agency.
trines
The court
granted
summary judgment, specifically ruling
the salon’s motion for
undisputed
precluded any liability
that the
facts
under
lia-
bility, negligent inspection
agency,
and maintenance оf the
re-
spondeat superior,
apparent agency;
expressly
the court did not
ad-
theory
negligent supervision.
dress the
Brown asserts the evidence
preclude
liability rejected by
does not
the theories of
the court.
any 1. She first contends that the salon is liable for
acts
of Al-Ansari
virtue of the
between the salon
argues
“apprentice”
Ansari. She
practice
that Al-Ansari held
license to
esthetics,
facial
§ 43-10-14,
see OCGA
and that this status
any negligent
apprentice’s
rendered the salon liable for
acts on the
part by operation
respondeat superior.
of the doctrine of
Although
“apprentice”
longer
the term
holds some of its his
connotations,
torical
service,
such as indentured
see Comas v. Red
(1866),
apprentice
dish,
historically
In chapter requires sanitary, the practi- that salons be that tioners have a maturity training, opera- certain level of and and that subject tions be to regulation. together, administrative Taken this recognition shows the body that the human at risk subjected is when cosmetological practices to regulate industry and the intent to the practitioners its general public for the health and of the which uses it. requirement of OCGA 43-10-14 that a student or § apprentice be . . “learning . under” a holder or certificate instructor must be in light purpose. construed of that
Apprenticeship by imposes upon degree nature the instructor a supervision control the over manner and method of the student’s scheme, work. Undеr the statutory degree necessary it is whatever is protect public; to the equipment aspect use of suitable is the the work reached supervision. that of control is not It disputed owner, through the employee its allowed only Ansari to work there knowledge practice with that she could an apprentice or student. applied
The usual test to for determine if one is a “servant” employer, under the respondeat superior is “whether thе purposes time, written, right has the to contract, oral or whether direct methods, means of the execution manner, and the employer in fact control did . . . The test is not whether work. work, employer employee in but it is whether and direct Hall v. . . . employment contract.’ right under the [Cits.]” had (6) (426 Buck, One who 758-759 apprentice or student the trade responsibility teaching for accepts may liable for OCGA 43-10-14 be cosmetology or esthetics under § in- incident to the performing in the duties the student’s relationship. that Al-Ansari received a structor/apprentice The fact for the salon does not diminish percentage generated of the fees she duty. contractor, independent that Al-Ansari The salon asserts Hall, respondeat superior. See placing her outside the doctrine of student/apprentice supra. require 43-10-14 does not that the OCGA § required employee; specific be an is student uncompensatеd. could be employer original
“The common law rule that an is not liable in independent Georgia contractor is codified OCGA the torts of an employer ‘An is not provides: generally 51-2-4 which in- employee exercises an torts committed his when dependent subject business and it is not to the immediate direction (respect) . . the “inde- employer.’ and control of the . ‘With to [Cit.] section, the test pendent requirement business” set forth the code apart essеntially whether the contractor has a bona fide existence employer’s employer ego.’ from the or functions instead as the alter Hurtig, Enterprises Loudermilk . . . [Cit.]” 43-10-14, Al-Ansari could not Under OCGA § law; such a matter of she business existence as learning was not a licensed esthetician work while and could pre- cosmetologist under a master or certified esthetician. The statute cludes, by public policy, independent contractor for an the status of apprentice. aspects relationship necessary satisfy
Aside from the 43-10-14, ample OCGA there is evidence that Al-Ansari was treated *4 employee independent as an The salon not and not as an contractor. “ methods, only ‘time, manner, right had the to control ” work,’ Hall, apprentice’s] and the means of the execution of [the supra, actually by approving Al-Ansari’s use but exerted such control it, self-provided investigation of her after of when she first be- salon, gan working employee there. An a holder of a owner and cosmetologist person master who satisfied the re- certificate and the quirements apprentice- pertaining of OCGA 43-10-14 to Al-Ansari’s ship, perform him ensure that she did had her several facials on manipulation (sic)” during “the the facial correct and observed “what products knowledge, testimony she[ used], her basic whatever.” This acceptance demonstrates not аpprentice, his of his role as instructor of an right but his to oversee and control the methods and right upon esthetician, manner of her work as an and his to insist again adherence to certain standards and methods. The salon exhib- by telling ited such control the student she could not use the table injury investigated. after Brown’s until it had been further signed The salon contends that Al-Ansari a document which paid stated that she understood she was as an contractor payments. documentary and was for her own tax Such la- beling any person “is not determinative of the status of such may negate Hosp. Augusta other factors [Cits.]” the label. Doctors (6) (a) (392 (1990). Bonner, v. Here, already negate documentary the “other factors” stated label. As “ departure, to control of Al-Ansari’s time of ‘[t]he arrival and test is employer not whether the did in fact control and direct the employer work, in employment clearly right but it is whether the had that under the supra Hall, contract.’ . . . [Cits.]” at 759 The salon right had the to control such. By relationship parties imposed by virtue of the between the acceptance OCGA 43-10-14 and the thereof, salon’s as well as the degree actually by ample of control salon, asserted there was evi- summary judgment dence to thwart a conclusion on that the salon respondeat superior not liable under acts com- employee. mitted Al-Ansari as and/or 2. Brown also asserts that there is evidence that Al-Ansari was an apparent agent imputed of the salon so that her should be theory requires “present to it. This [the Brown evidence that represented apparent salon] agent or held [Al-Ansari] out as its justifiable upon representation servant [that] reliance led to injury. Carpet Cleaning by [Cits.]” &c. Houndstooth, Keefe (1) (444 theory depends upon reasonably perceived not on the actual but one. appeal The issue before us in this does not include Brown’s alle- gations apparent agent that the salon was an hotel, and that apparent agent Al-Ansari was an of the hotel. The hotel was not a party summary judgment, allega- to the salon’s motion and the liability tions of the hotel’s were not affected the court’s order granting the salon’s motion. deposition prevents Brown’s the establishment of the salon as the principal apparent agent thought of an here. She testified that she operation salon was an of the hotel and that all who worked there employees. were hotel She formed the belief on the basis of the ho- response question tel’s affirmative to her of whether it had a *5 guest the fact that the salon was listed the hotel’s services brochure Services,” and, “Special joined building the salon’s location in a under incident, after the the inclusion of the salon’s fee on her hotel bill. upon reputation deciding that she the of the hotel in She stated relied her, go to the salon that she would not to otherwise unknown to kept appointment if the in the her salon had not been listed representation guest points hotel’s services brochure. Brown to no on principalship, upon the of the salon as to its which she relied. Summary judgment apparent agency to the salon on the issue of was proper. injuries
3. Brown also contends that thе salon is liable for her ordinary keep premises because it failed to exercise care to its safe for by allowing defectively invitees Al-Ansari there bring to and use a designed theory and manufactured facial This table. OCGA 51-3-1. recovery duty any relates to the salon’s own and is part. on Al-Ansari’s “ occupier premises duty of a business ‘has a to exercise or- (Cits.) dinary keeping premises care in safe. This includes “a inspect to possible dangerоus to discover conditions of protect which he precautions does not know and to take reasonable dangers arrangement invitee from which are foreseeable from the (Cits.)’ premises.” Howard, use of the Strickland [Cit.]” (1) occupied The salon premises on pursuant agree- which incident occurred to a rental Although premises, ment. Al-Ansari introduced the table to Cox, occupier’s duty nondelegable. is Towles v. 718) (1986). An owner and of the salon testified permitted
that he had Al-Ansari to use her own table instead of one salon’s, himself, facial, sitting receiving investigat- after it a worked, ing visually the manner in which it inspecting it. Another owner testified she had also sat on the table.
The salon argues that there is no evidence the table was defective only way and that through Brown’s fall could have occurred was sup- misuse of the table Al-Ansari. That not the inference portable. produced
Brown visibly evidence that the table was deficient safety that it had spring-loaded supports mechanism on its this was a standard for such tables. She testified that she fell up when “the go.” happened table from the waist let The fall after gotten cape placed Brown had a had been over her clothes, facial, adjusted her hair had been to facilitate the Al-Ansari placed tape tape player, had a music into a and Brown had closed her eyes. apparently passed Given the amount of time that while Brown preliminary adjustments on the table after whatever Al-Ansari it, made to it is a reasonable inference that the fall was due to the absence of mechanism rather than to act of Ansari. ruling summary on a judgment, opposing motion for
“[I]n doubt, party given be should the benefit of all reasonable and the court should construe the evidence and all inferences and conclusions arising favorably party therefrom most opposing toward the the mo- Center, tion. Garmon v. Warehouse Groceries Food [Cit.]” 89, (1) (427 defi- Whether table was deficiency cient and whether injuries caused Brown’s is for a jury’s determination.
The salon also inspection contends that the owner’s satisfied its ordinary However, to exercise safety care for the of invitees. “is- diligence, negligence, contributory sues of are issues jury except plain indisputable determination in cases. [Cit.]” Strickland, supra. We cannot conclude as a matter of law inspection by diligence satisfy related the owners was of sufficient to duty. the salon’s One owner testified that he knew the table had been by constructed an supplier individual who was not a normal of salon equipment, inspection by and there was evidence that the salon would safety revealed that this table lacked a mechanism.
The salon suggests ordinary that Brown should have exercised care for her own any patent and have noticed in defect Putting Brown, table. question aside the whether in- as a customer stead of in the business of operating expected a should be “ ‘ “ to recognize deficiency alleged, obliged ‘an invitee is not to inspect to discover latent nor defects even to observe ‘ patent (Cit.) cases, defects.’ “Only palpable clear ap- where it pears recklessly that one clearly peril, tests an observed and obvious voluntarily position assumes a danger, of imminent will he be ’ (Cits.)” recovery (Cit.)” barred from as a matter of law. . . . [Cit.]’ Johnson, (449 Parker v. [Cit.]” placed There is no evidence that prem- the facial table on the obviously perilous. ises was
As to the superior salon’s knowledge of latent defect and its responsibility it, clearly discover the record reflects that the salon owner knew that by table was not built a standard manufacturеr know, but an individual he not did and that his customers would be reclining In say table. such circumstances we are unable to “ ‘ordinary law, diligence did not aas matter of under the facts ” (as shown), (sufficient require defect).’ inspection an to reveal the Lonard v. Cooper &c. Properties, ordinary The issue of care must also be resolved
jury. Judgment part. McMurray, and reversed in affirmed J., Blackburn, JJ., Smith,
P. J., Johnson and concur. concurs in the judgment only. Birdsong, J., J., JJ., Pope, Ruffin, P. P. Andrews and dissent. Judge, dissenting.
Andrews,
I respectfully dissent from Divisions and 3. respect
With I disagree majority’s to Division with the conclu- apprentice sion employee. that an has the same status as an Gener- ally, treating apprentice as an illogical will lead to unintended results.
Apart general from the rule not that an an em- ployee, in this case the facts established that Al-Ansari was an inde- pendent First, desig- contractor. she had a written contract which document, independent nated her as an contractor. That which 25, 1990, “I, signed August Ansari on stated: . . . I understand that Therefore, being paid independent am I contractor. also under- stand that I am my self-employment own taxes and federal and state income taxes.”
Additionally, provided working, Al-Ansari her own materials for including the chair which underlies the incident this case. Who’s Three did not control the time Al-Ansari arrived or the time that she Additionally, left. pay security Who’s Three did not social or medi- care amounts for her. She was an gener- cоntractor. See ally Assoc., Bartlett v. Realty Northside 744) (1989). Accordingly grant summary there was no error in the *7 judgment on this basis. respect 3,
With
to Division
I
again
would
affirm the trial court’s
grant
summary judgment.
regarding
The evidence
the chair was
the back
prone position by
was held in a
edge.
a saw-toothed
Who’s
only possible
Three contends that the
negligence would be
Ansari’s for
adequately
case,
not
If
securing the catch.
this was the
appears
this
to be a case of
Al-Ansari’s active
and nоt one
premises
liability.
generally Lipham
Stores,
See
v. Federated Dept.
(440
193) (1994).
Nonetheless, assuming arguendo that the claim stated here is one for liability, grant summary judgment proper. was ground “The true liability proprietor’s superior is the knowledge of perilous instrumentality and the danger persons go- therefrom to ing upon property. If the invitee knows of the condition or haz- ard, duty there is no proprietor of the to warn the invitee and there liability is no for resulting injury because the invitee has as much knowledge proprietor (Citations, as the punctuation, does.” omitted.) emphasis Huntley Jiffy Grigsby, 634, Stores v. (431 635 If danger patent here was apparent, hazard was then Brown had a to avoid such haz- ard ordinary and exercise safety. care for her own Winchester v. Sun Assoc., Valley-Atlanta one, hand, then in
If, danger here was a latent on the other Three recover there must be evidence that Who’s order for Brown to care, known, or, of the ordinary in the exercise of should have knew words, liability may predicated be problem. “In other [Who’s Three’s] &c. Cooper Lonard v. knowledge.” on constructive as well as actual Properties, The evidence owners, Merrihew, inspected the chair one of the salon showed that chair while a brought it and that he sat on the when Al-Ansari appeared the chair sound performed. facial was Merrihew stated she sat on the sturdy. Another owner of the salon stated that had appeared it safe. There is no evidence that there chair and that any prior problems been with the table. here,
“[W]here, knowledge alleged there was no actual condition, record to dangerous nothing unsafe and there is inspection propriety necessity making or show or indicate defect, possible probable such as ascertain the existence of table], ordinаry people that other had . . . fallen the same dili- [off law, shown, gence require an did not as a matter of under the facts as inspection had no sufficient to reveal defect where the defendant (Punctuation inspection necessary.” reason to think such was omitted.) Lonard, superior supra at 865. Who’s Three had no knowl- and, edge alleged accordingly, grant defect the trial court’s summary judgment proper.
I Presiding Judge Birdsong, am authorized to state that Presid- ing Judge Pope, Judge join Ruffin this dissent.
Decided March
Reconsideration denied March Kent, Vaughan, Schaeffer, Kidd & Jeffrey David N. B. appel- lant.
Tittsworth, IV, Shivers, Spillers, Grabbe & John C. Grabbe Wilson, Wilson, Wayne Johnson & C. appellee.
A94A2836. CARTER v. E. I. DuPONT de & NEMOURS
COMPANY, INC. de & A94A2840. HARRISON v. E. I. DuPONT NEMOURS COMPANY, INC.
Smith, Judge. Harrison, Gary Company, mis- for Union Tank Car