ABNEY v. LONDON IRON c. CO., 152 Ga. App. 238 (1979)


262 S.E.2d 505

ABNEY v. LONDON IRON METAL COMPANY INC. et al.

58551.Court of Appeals of Georgia.SUBMITTED SEPTEMBER 26, 1979.
DECIDED OCTOBER 25, 1979. REHEARING DENIED NOVEMBER 8, 1979.

McMURRAY, Presiding Judge.

Jerry W. Abney was an Atlanta police officer who, while on night duty, received a radio message to respond to a burglar alarm call at a place of business, a scrap metal

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yard. He arrived at the yard where he met a fellow police officer and a Wells Fargo guard (“a burglar alarm man”). The Wells Fargo man pointed out the building in the yard where the alarm (“an audible,” “motion alarm …”) had sounded. The two police officers proceeded on to the premises to check the building. They found a number of windows open at the rear of the building and decided to enter through an open window. They climbed down from the window ledge into the building onto some wooden pallets. The building was dark, and the officers were not using their flashlights for safety reasons. While Abney was standing on one of the pallets it broke and he fell into a sump hole containing water and battery acid. He was injured as a result of the fall into the sump hole.

Abney sued the owner of the premises for personal injuries. After discovery, defendants moved for summary judgment which was granted. Plaintiff appeals. Held:

1. We are concerned here with the following law with reference to damage suits:

(a) “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Code § 105-401.

(b) “A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification. The owner of such premises is liable to a licensee only for wilful or wanton injury.” Code § 105-402.

(c) Where one is on the premises of another at the latter’s request and for the sole benefit of the latter, he is an invitee to whom the latter owes the duty of extraordinary care to avoid injury to him. Shepherd v. Whigham, 111 Ga. App. 274(1) (141 S.E.2d 583); Dean v. Gainesville Stone Co., 118 Ga. App. 142, 143(2) (162 S.E.2d 858); LaBranche v. Johnson, 127 Ga. App. 244, 245(2) (193 S.E.2d 228); Chatham v. Larkins, 134 Ga. App. 856, 858 (216 S.E.2d 677); Harvill v. Swift Co., 102 Ga. App. 543
(117 S.E.2d 202).

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(d) It has been held that a fireman who enters the premises of another to extinguish a fire, his entry on the premises is based on the law and not an invitation of the owner or occupier even if the owner or occupier turns in the fire alarm. See Todd v. Armour Co., 44 Ga. App. 609 (162 S.E. 394); and Baxley v. Williams Const. Co., 98 Ga. App. 662, 669 (106 S.E.2d 799).

(e) While there is no duty on the owners of property to licensees to keep their premises up to any given standards of safety, still the premises must not contain pitfalls, mantraps, and things of that kind. Central of Ga. R. Co. v. Ledbetter, 46 Ga. App. 500, 504 (168 S.E. 81); Atlantic C. L. R. Co. v. O’Neal, 180 Ga. 153, 155 (178 S.E. 451); McCall v. McCallie, 48 Ga. App. 99, 101 (9) (171 S.E. 843); Cook v. Southern R. Co., 53 Ga. App. 723, 726(3) (187 S.E. 274); Cobb v. First Nat. Bank, 58 Ga. App. 160, 164 (198 S.E. 111); Leach v. Inman, 63 Ga. App. 790, 792
(12 S.E.2d 103); Greenfield v. Watson, 54 Ga. App. 9 (187 S.E. 183).

(f) But even if the plaintiff were a licensee, if the owner of the property becomes aware, or should anticipate the presence of the licensee (in this instance the repeated burglaries and alarms going off and the killing of security guards, the employment of burglar alarm men or other security guards), a duty rests upon the owner to exercise ordinary care to avoid injuring a licensee. See Banks v. Watts, 75 Ga. App. 769, 773 (44 S.E.2d 510); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 496 (118 S.E. 697).

(g) Where one enters the premises of another for purposes connected with the business of the owner conducted on the premises, he is an invitee and the owner of the premises is liable in damages to him for a failure to exercise ordinary care in keeping the premises safe. See Coffer v. Bradshaw; 46 Ga. App. 143
(6, 7) (167 S.E. 119); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 S.E. 415).

2. Defendants strongly contend that the cases of Todd v. Armour Co., 44 Ga. App. 609, supra, and Baxley v. Williams Const. Co., 98 Ga. App. 662, supra, require the grant of summary judgment here in that the policeman, the plaintiff herein, should be treated summarily as a

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member of a fire department who enters the premises in the performance of his duty as a licensee, and the owner of the premises assumes no duty to the licensee except to refrain from acts of wilful or wanton negligence. However, under our notice pleadings, discovery has disclosed certain facts that the building where the burglar alarm was located was under surveillance by a Wells Fargo security guard (“a burglar alarm man”). The record is silent as to whether he was an agent or an employee of the owner of the premises. The record is silent here as to whether he invited or directed the officers to enter the premises when they arrived there in response to the burglar alarm, the premises having been burglarized on other occasions in which security guards had been killed on the location. However, there was direct testimony that the Wells Fargo guard did direct the police officers to the building where the alarm had sounded. Accordingly, we do not believe the evidence here is sufficient to demand a finding that as a matter of law the plaintiff was a licensee rather than an invitee thereby showing there was no genuine issues as to any material fact and the defendants were entitled to a judgment as a matter of law in consideration of their motion for summary judgment. See Parsons v. Sears, Roebuck Co., 69 Ga. App. 11, 12 (24 S.E.2d 717); Hull v. Massachusetts Mut. Life Ins. Co., 142 Ga. App. 269 (235 S.E.2d 601); Hatcher v. City of Albany, 144 Ga. App. 503 (241 S.E.2d 619).

3. But even conceding that plaintiff was a licensee rather than an invitee on the premises, an issue as to hidden peril or mantrap remains for jury determination by reason of the evidence before the trial court that a series of burglaries had occurred at this location, security guards had been killed; and thus an issue of fact remains for jury determination as to whether the open sump hole constituted a hidden peril, mantrap or a pitfall. See in this connection MacKenna v. Jordan, 123 Ga. App. 801, 802(2) (182 S.E.2d 550); Hicks v. Seaboard C. L. R. Co., 123 Ga. App. 95
(179 S.E.2d 532); Medi-Clean Services v. Hill, 144 Ga. App. 389
(241 S.E.2d 290); Davis v. Childers, 134 Ga. App. 534
(215 S.E.2d 297); Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21
(232 S.E.2d 369).

Judgment reversed. Banke and Underwood, JJ.,

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concur.

SUBMITTED SEPTEMBER 26, 1979 — DECIDED OCTOBER 25, 1979 — REHEARING DENIED NOVEMBER 8, 1979 — CERT. APPLIED FOR.
Action for damages. Fulton Superior Court. Before Judge Tidwell.

Norris C. Broome, Eugene W. Hope, for appellant.

Glenn Frick, Gary Hill, for appellees.