American Mut. Liability Ins. Co. v. Jones

• Decision Date: 06 January 1981
• Docket Number: 60465,Nos. 60464,s. 60464
• Citation: American Mut. Liability Ins. Co. v. Jones, 278 S.E.2d 410, 157 Ga.App. 722 (Ga. App. 1981)
• Parties: AMERICAN MUTUAL LIABILITY INSURANCE COMPANY v. JONES. AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON v. JONES.
• Court: Georgia Court of Appeals

Page 410

278 S.E.2d 410

157 Ga.App. 722

AMERICAN MUTUAL LIABILITY INSURANCE COMPANY v.JONES.

AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON v.JONES.

Nos. 60464, 60465.

Court of Appeals of Georgia.

Jan. 6, 1981.

Rehearing Denied March 3, 1981.

Certiorari Denied May 6, 1981.

Frank E. Jenkins III, John D. Jones, Atlanta, for appellants.

Joe O. Mangum III, G. L. Dickens, Jr., Milledgeville, for appellee.

SHULMAN, Presiding Judge.

Appellee brought this action seeking recovery for injuries he suffered in a mishap at his place of employment.The theory under which he sued appellants, insurers of appellee's employer, was that enunciated in Sims v. American Cas. Co., 131 Ga.App. 461, 206 S.E.2d 121: negligent performance of safety inspection.At trial, after the presentation of appellee's evidence and again at the close of all the evidence, appellants moved for directed verdicts, contending that the essential element of reliance had been disproved by appellee's own testimony.The trial court denied both motions and the jury returned a verdict for appellee.We reverse.

The theory under which appellee traveled and its foundation in § 324A of the Restatement, Second, Torts, were further explained in this court's recent opinion in Argonaut Ins. Co. v. Clark, 154 Ga.App. 183, 267 S.E.2d 797.In that case, as in this case, liability was predicated on the third subparagraph of that Restatement section, which, together with the main body of the section, provides as follows: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if ... (c) the harm is suffered because of reliance of the other or the third person upon the undertaking."Restatement, Second, Torts, § 324A, p. 142.That element of reliance is of such importance that this court has referred to it as a condition precedent to the imposition of liability in cases such as this.St. Paul Fire etc. Ins. Co. v. Davidson, 148 Ga.App. 82, 84, 251 S.E.2d 32.

In a discussion of the theory on which liability is predicated in this action, this court said in Argonaut, supra, 154 Ga.App. p. 186, 267 S.E.2d 797, that the crux of such actions was "that there was an unsafe and concealed condition on the premises of which the safety inspector possessed or should have possessed a superior knowledge as a result of his inspections."(Emphasis supplied.)We agree fully with that statement.It stands to reason that one with superior actual...