BRYANT v. RUCKER et al.
44667
Court of Appeals of Georgia
March 16, 1970
121 Ga. App. 395
The law of Georgia and the decisions of this court hold that a social guest in a defendant‘s private home is a bare licensee. Stanton v. Grubb, 114 Ga. App. 350 (151 SE2d 237); Laurens v. Rush, 116 Ga. App. 65 (156 SE2d 482); Hall v. Capps, 52 Ga. App. 150 (182 SE 625).
“If plaintiff is a social guest in defendant‘s home, the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited. [Ann. 25
The factual situation of the Stanton case, supra, is nearly identical with this case. In Stanton the water was tracked into the basement by other guests coming from the defendant‘s swimming pool. In this case the water was splashed in the yard outside the house by children.
This court has held, even as to a business invitee, that a business proprietor cannot reasonably be expected to prevent the presence of some water on a normal floor during a period of time when it is continually raining. Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (2c) (138 SE2d 77); Card v. Chi-Chesters Baconfield Pharmacy, 111 Ga. Aрp. 358 (141 SE2d 790); Angel v. Varsity, Inc., 113 Ga. App. 507 (148 SE2d 451). If a business proprietor is not required to be continually mopping up rainwater inside his store to protect a
This is not a case of hidden peril, pitfall or mantrap. Crosby v. Savannah Electric &c. Co., 114 Ga. App. 193, 198 (150 SE2d 563).
Judgment affirmed. Bell, C. J., Jordan, P. J., Eberhardt and Whitman, JJ., concur. Pannell, Deen, Quillian and Evans, JJ., dissent.
SUBMITTED SEPTEMBER 11, 1969—DECIDED MARCH 16, 1970.
Paul C. Myers, for appellant.
Nall, Miller, Cadenhead & Dennis, Douglas Dennis, Baxter L. Davis, for appellees.
PANNELL, Judge. I am authorized to state that Judge Quillian and Judge Evans join in this dissent.
The majority has failed to concern itself with rules applicable to motions for summary judgment by a party defendant on whom the burden of proof does not lie upon the trial of the case but on whom it does lie when such defendant makes a motion for summary judgmеnt, and this is such a case; and has also failed to call attention to, and has failed to consider, pertinent and controlling evidence such as, for example, that the defendant husband had placed a sharp metal object next to a puddle of water which created a slippery condition on the floor and his daughter had very recently slipped in this same puddle of water, all of which he knew as well as his wife. For these reasons, I do not deem it amiss that the complete pleadings and all of the material evidence be included in this opinion.
Mrs. Peggy Bryant brought an action against Eugene R. Rucker and Florence Rucker alleging: “1. The defendants above named are husband and wife аnd reside at 3371 Brookfield Lane, DeKalb County, Georgia, and are subject to the jurisdiction of this court. 2. That at all times pertinent hereto defendants were the owners and occupants of a dwelling house situated at the above address. 3. That said dwelling of the defendants at all times pertinent hereto had adjacent thereto a
The defendants filed a joint motion for summary judgment based upon the pleadings and the deposition of the plaintiff taken by the defendants for the purpose of discovery and no other evidence or material was produced by either party. The deposition, so far as here material, is as follows: “Q. Let me call your attention to the date of July 10th, 1967, and ask you
The trial judge granted the defendants’ motion for summary judgment and the plaintiff appealed.
The gist of the arguments of the respective parties on appeal seems to be based primarily on whether or not the plaintiff was an invitee or licensee. See, in this connection,
As we view the case, it is unnecessary to make that determination, as it is our opinion the trial court erred in granting a summary judgment for the defendants whether we consider the plaintiff to be a licensee or invitee.
1. We are not here determining whether the plaintiff‘s deposition proved her case as laid, as we would be if this case were appealed from a directed verdict upon a trial, but rather we must determine (first) whether the defendants, by use of such deposition, pierced the allegation of the plaintiff‘s petition, and (secondly, after the first has been accomplished) does the evidence demand a finding for the defendants as a matter of law. In our opinion, the first has not yet been accomplished and we are, therefore, not concerned with the second under the facts here.
“The purpose of the Summary Judgment Act of 1959 is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit оf all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving
“Until the moving party produces evidence or materials which prima facie pierce the pleadings of the opposing party, no duty rests upon the opposing party to produce any counter evidence or materials in affirmative support of its side of the issue as made by the pleadings. Moore‘s Federal Practice, Vol. 6, par. 56.15 [3], p. 2347, n. 46; Shadix v. Dowdney, 117 Ga. App. 720 (162 SE2d 245).” Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420 (1, 2) (170 SE2d 737).
“The defendant having made the motion, the burden was upon him to produce evidence which conclusively eliminated all issues in the case including the question of the defendant‘s knowledge of the alleged dangerous condition.” Colonial Stores v. Wilson, 118 Ga. App. 120, 122 (162 SE2d 750). See also Sanders v. Alpha Gamma Alumni Chapter, 106 Ga. App. 137 (126 SE2d 545); Lucas v. Mixon, 116 Ga. App. 146 (156 SE2d 375); Peacock v. Adams, 118 Ga. App. 728 (1) (165 SE2d 664). The defendant must produce evidence which conclusively negates at least one essential element entitling plaintiff to a recovery under every theory fairly drawn from the pleadings and the evidence. Saunders v. Vikers, 116 Ga. App. 733 (2) (158 SE2d 324); Calhoun v. Eaves, 114 Ga. App. 756, 759 (152 SE2d 805).
“In order to pierce allegations of material fact contained in the plaintiff‘s petition, the evidence offered by defendant on motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged. It is not sufficient if the evidence merely preponderates toward defendant‘s theory rather than рlaintiff‘s or does no more than disclose circumstances under which satisfactory proof of plaintiff‘s case on trial will be highly unlikely.” Watkins v. Nationwide Ins. Co., 113 Ga. App. 801, 802 (149 SE2d 749); Shadix v. Dowdney, 117 Ga. App. 720, supra; Woody v. Ralston Purina Co., 117 Ga. App. 352 (160 SE2d 662).
It has oft times been held that a motion for summary judgment is analogous to a motion for a directed verdict. “The operation of the motions is, then, essentially the same in reference
It appears, therefore, that the grant of a summary judgment may be improper where, at the trial, the grant of a directed verdict may be proper. Armco Steel Corp. v. Realty Investment Co., 273 F2d 483.
“The liability of the owner or proprietor of premises, for injuries received by persons while present upon such premises, may be viewed in four aspects: (1) Where the person injured is there as a trespasser; (2) where he is there as a licensee; (3) where he is there by invitation of the owner or proprietor; (4) where he is there under some other special relation. In the first case—that of the trespasser—liability arises only where the injury has been occasioned by the wilful and wanton negligence of the proprietor or owner. No duty of anticipating his presence is imposed; and, as was pointed out by this court in Charleston & W. C. R. Co. v. Johnson, 1 Ga. App. 441 (57 SE 1064), the duty to use ordinary care to avoid injuring him after his presence and danger is actually known is, in point of fact, merely the duty not to injure him wantonly or wilfully. So in the first case wanton or wilful negligence is essential to liability. In the second case—that of the licensee—there is a slightly higher duty on the part of the owner or proprietor of the premises. He must not wantonly and wilfully injure the licensee; and since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated. The fundamental
“The distinction between the duty to a licensee and to one entering the premises under invitation is thus expressed in Beehler v. Daniels, 18 R. I. 563, 565 (29 A 6, 27 LRA 512, 49 ASR 790): ‘There is a clear distinction between a “license” and an “invitation” to enter premises, and an equally clear distinction as to the duty of an owner in the two cases. An owner owes to a licensee no duty as to the condition of premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or wilfully cаuse him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation.’ Mere permission to enter the premises creates the relation of licensee; invitation, express or implied, is necessary to create the more responsible relation and the consequent higher duty upon the owner or proprietor. In this class of cases wilfulness or wantonness is not necessary to the existence of liability, but merely ordinary neglect, either through act of omission or of commission. See Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145 (4 SE 759, 12 ASR 244); Archer v. Blalock, 97 Ga. 719 (25 SE 391); Central R. Co. v. Robertson, 95 Ga. 430 (22 SE 551). The case of Augusta R. Co. v. Andrews, 89 Ga. 653 (16 SE 203), s.c. 92 Ga. 706 (19 SE 713), is authority, not for the proposition that mere permission is equal to an invitation, but for the proposition that a duty is owing to a licensee.” Id., p. 611. The owner or occupier of premises is liable for failure to warn invitees of dangers or defects in them or instrumentalities thereon, of which the owner or occupier knew or of which it was his duty to know in the exercise of ordi-
This quick review of the law lets us determine the elements necessary, and alleged by the plaintiff, which constitute a cause of action under either theory and what the defendants in their motion for summary judgment must affirmatively negate in whole or in part.
3. Let us assume first that she is an invitee. The evidence discloses there was a defect in the premises so the defendants have failed to pierce this allegation. Did the defendants lack knowledge of this defect? On the contrary, the evidence affirmatively shows that Mrs. Rucker knew of the presence of the water and that her daughter had previously slipped and fallen because of it. The evidence does not negative Mr. Rucker‘s personal knowledge of the defect and neither does it negative his implied knowledge of the defect although it might fail to prove implied knowledge should the burden here be on the plaintiff. The defendant here does not pierce the pleadings by producing evidence which merely fails to prove the plaintiff‘s case, even though that evidence be the plaintiff‘s testimony.
On the question of the failure to warn of the defect the evidence shows conclusively that neither Mr. nor Mrs. Rucker warned the plaintiff, therefore, instead of piercing this allegation of the plaintiff‘s petition the defendants’ evidence proved it.
4. Let us now assume that the plaintiff was a licensee. The
The next question is whether the evidence shows there was no pitfall or mantrap, for if the evidence shows affirmatively a lack of such a pitfall or mantrap the defendants have pierced the pleadings and in the absence of counter evidence by the plaintiff or other evidence making an issue for the jury, the defendant would be entitled to judgment.
While the courts of this State have been reluctant to declare a statical condition of the premises a mantrap even though it consists of a peril concealed by darkness (Kahn v. Graper, 114 Ga. App. 572, 575 (152 SE2d 10)), here we have no statical condition of the premises, and a portion of the condition (the water on the floor) was obscured because of the coloration and the prior brightness of the floor even in the absence of the water. The floor thus mаde slippery by the water with the sharp metal object adjacent thereto constituted the dangerous condition. As was said in Kahn v. Graper, supra (p. 576), “[t]he doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or licensee and has prepared the premises to do him injury. Moseley v. Alabama Power Co., 246 Ala. 416 (21 S2d 305). . . . This may happen where the owner has deliberately set a trap gun, or has concealed a danger, hiding it with some cover insufficient to prevent injury. It may result from a knowledge of the owner of the existence of the dangerous condition coupled with a conscious indifference to the consequences, so that an intent to inflict injury is inferable. Louisville &c. R. Co. v. Young, 112 Ga. App. 608, 613 (145 SE2d 700).” It is our opinion that under the showing here, whеre we must assume (the pleadings not having been pierced in that regard) that the owners had knowledge of this dangerous condition and that shortly prior thereto their daughter had slipped and fallen
Accordingly, this court should hold that the defendants failed tо pierce the pleadings and that there are material issues of fact still remaining in the case made primarily by the unpierced pleadings. We think the trial court erred in granting the defendants’ motion for summary judgment and that the judgment should be reversed.
DEEN, Judge, dissenting. Unless Hall v. Capps, 52 Ga. App. 150, supra, is overruled, the law of this State is settled that one who comes on the premises of another not “for a purpose connected with the business in which the occupant is engaged” and without “mutuality of interest in the subject to which the visitor‘s business relates” is a licensee regardless of whether the owner‘s invitation to come is express or implied. This ruling by Judge Jenkins has been explicitly followed by Judge Jordan in Stanton v. Grubb, 114 Ga. App. 350, supra, and by Judge Hall in Laurens v. Rush, 116 Ga. App. 65, supra. I do not consider any of the other cited cases absolutely controlling. “Business” as used in these cases clearly refers to pecuniary gain. It might easily have had a broader significance, as witness Griffin v. Russell, 144 Ga. 275 (87 SE 10, LRA 1916F 216, AC 1917D 994), the parent case for the family-car doctrine, which held that “defendant might properly make it an element of his business to provide pleasures for his family” (p. 282), so that a minor child using the car for her own pleasure with the father‘s permission was engaged in his “business.” Judge Lumpkin commented: “The word ‘business’ is commonly employed in connection with an occupation for livelihood or profit, but it is not limited to such pursuits. When Jesus said, ‘Wist ye not that I must be about my Father‘s business?’ He had no reference to matters involving pecuniary rewards.” P. 278.
It occurs to me that the language of
I agree with the majority opinion that plaintiff cannot recover under the licensee theory, but think he should be entitled to go to a jury under the theory that plaintiff might be able to prove the lack of ordinary care to which I think he should be entitled.