Atkins v. Tri-Cities Steel, Inc.

• Decision Date: 05 April 1983
• Docket Number: No. 65881,TRI-CITIES,65881
• Citation: 304 S.E.2d 409,166 Ga.App. 349
• Parties: ATKINS v.STEEL, INC.
• Court: Georgia Court of Appeals

Page 409

304 S.E.2d 409

166 Ga.App. 349

ATKINS v. TRI-CITIES STEEL, INC.

No. 65881.

Court of Appeals of Georgia.

April 5, 1983.

Rehearing Denied April 20, 1983.

Certiorari Denied June 7, 1983.

M. Shannon Feeney, Jonesboro, for appellant.

Hugh M. Worsham, Jr., David A. Handley, Atlanta, for appellee.

DEEN, Presiding Judge.

Lynn Atkins brought a wrongful death action against Tri-Cities Steel, Inc., following the death of her husband who was killed after he came in contact with an electrical cable in the rafters of an industrial building owned by Tri-Cities Steel, Inc.

The Atkins rented a small mobile home from John Young, a shop foreman of appellee and son of the president, which was located on the business premises of Tri-Cities Steel near the industrial building in which Atkins was killed. As the mobile home was located on industrial property, a special permit had to be obtained from the College Park City Council before it could be occupied. William Young, president of appellee, went before the council on February 4, 1981, and requested the permit indicating that he needed someone to reside on the property because of vandalism in the area. The mayor asked if "they looked after the property when they were around" and Young replied, "Yes." The permit was granted. On May 17, 1981, a Sunday, Atkins was playing on the premises, in the area adjacent to the mobile home, with a frisbee and it apparently went on the roof of the industrial building. He attempted to retrieve it and came into contact with an electrical cable in the roof which served an overhead crane and was killed instantly. His body was found in the rafters of the building. In her affidavit, Mrs. Atkins claims she was never warned of the dangerous condition of the cable or that she was not allowed to enter into the other buildings on the property. She did not know if her husband had been told to stay out or off of the buildings. There were no warning signs posted. The affidavits of John Young and his father state that Atkins' presence on the property provided no benefit to the company and that he was told not to enter or go on any of the buildings. Mrs. Atkins brings this appeal from the grant of summary judgment in favor of appellee. Mrs. Atkins brought a claim under the Workers' Compensation Act, but no award was made because her husband was found not to be an employee within the meaning of the Act, and even if he were, the injury was not sustained during the scope of his employment. Held:

The liability of Tri-Cities Steel depends upon whether Atkins, at the time he suffered his fatal injury, was a trespasser, a licensee or an invitee (express or implied). Under OCGA 51-3-2 (Code Ann. § 105-402), the owner or proprietor of the premises is liable only for wilful or wanton injury to a licensee whereas under OCGA § 51-3-1 (Code Ann. § 105-401) the landowner or occupier owes an invitee the duty to exercise ordinary care in keeping the premises safe. The duty owed to a trespasser is not to wilfully and wantonly injure him. Huddle House, Inc. v. Burke, 133 Ga.App. 643, 647, 211 S.E.2d 903 (1974).

To determine whether a person is an invitee or a mere licensee, the nature of his relation or contact with the owner or occupier of the premises must be determined. The test is " 'whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience...' " Brown v. Hall, 81 Ga.App. 874, 880, 60 S.E.2d 414 (1950). There must be a mutuality of interest in the subject to which the plaintiff's business related, even if the subject of the business is not for the benefit of the defendant. American Legion v. Simonton, 94 Ga.App. 184, 186, 94 S.E.2d 66 (1956). "[A]n 'invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.' " Higginbotham v. Winborn, 135 Ga.App. 753, 754, 218 S.E.2d 917 (1975). See also Davis v. Garden Services, 155 Ga.App. 34, 35, 270 S.E.2d 228 (1980). An owner or occupier of land is liable when he fails to warn his invitees of dangers or defects of which he knew or should have known had he exercised ordinary care. Fulton Ice etc., Coal Co. v. Pece, 29 Ga.App. 507, 116 S.E.2d 57 (1922), Brown v. Hall, supra; Flint River Cotton Mills v. Colley, 71 Ga.App. 288, 30 S.E.2d 426 (1944).

If an invitee does not go beyond that part of the premises to which, as it reasonably appears to him the invitation extends, he does not become a licensee. Mortgage Comm. Servicing Corp. v. Brock, 60 Ga.App. 695, 699, 4 S.E.2d 669 (1939). If, however, he does go...