Abney v. London Iron & Metal Co., Inc.

• Decision Date: 20 December 1979
• Docket Number: No. 58551,58551
• Citation: 262 S.E.2d 505,152 Ga.App. 238
• Parties: ABNEY v. LONDON IRON & METAL COMPANY, INC. et al.
• Court: Georgia Court of Appeals

Page 505

262 S.E.2d 505

152 Ga.App. 238

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

No. 58551.

Court of Appeals of Georgia.

Submitted Sept. 26, 1979.

Decided Oct. 25, 1979.

Rehearing Denied Nov. 8, 1979.

Certiorari Granted Dec. 20, 1979.

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

Glenn Frick, Gary Hill, Atlanta, for appellees.

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 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.

(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, 162 S.E. 394, supra, and Baxley v. Williams Const. Co., 98 Ga.App. 662, 106 S.E.2d 799, supra, require the grant of summary judgment here in that the policeman, the plaintiff herein, should be treated summarily as a 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,...