Atlanta Braves, Inc. v. Leslie, 77548

• Decision Date: 12 January 1989
• Docket Number: No. 77548,77548
• Citation: 378 S.E.2d 133,190 Ga.App. 49
• Parties: ATLANTA BRAVES, INC., et al. v. LESLIE, et al.
• Court: Georgia Court of Appeals

Page 133

378 S.E.2d 133

190 Ga.App. 49

ATLANTA BRAVES, INC., et al. v. LESLIE, et al.

No. 77548.

Court of Appeals of Georgia.

Jan. 12, 1989.

Rehearing Denied Jan. 26, 1989.

Certiorari Denied Feb. 23, 1989.

Neely & Player, Donald D. Reemsnyder, David C. Marshall, Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Atlanta, Mary M. House, and Eve A. Appelbaum, Atlanta, for appellants.

Walbert & Hermann, David H. Bedingfield, and David F. Walbert, Atlanta, for appellees.

CARLEY, Chief Judge.

Appellant-defendant City of Atlanta-Fulton County Recreation Authority (The Authority) leased the Atlanta-Fulton County Stadium facility to appellant-defendant Atlanta National League Baseball Club, Inc. (Braves). The Braves, in turn, contracted with appellant-defendant ARA Leisure Services, Inc. (ARA) to provide concession services at the stadium facility during home games. Appellee-plaintiff Nathaniel Leslie is a full-time police officer, but he also worked as a security guard for ARA during his off-duty hours. When performing his duties for ARA, Leslie wore his police officer's uniform and carried a gun. While he was engaged in guarding a portion of the stadium premises where ARA's employees deposited their daily receipts, Leslie was shot by an armed robber.

As the result of this occurrence, Leslie filed suit against appellants, alleging the negligent breach of the duty to keep the stadium premises safe for invitees. His wife, appellee Mrs. Janice Leslie, also brought suit, seeking to recover for the loss of consortium. Appellants answered, denying the material allegations of appellees' complaints. All appellants moved for summary judgment. The trial court denied appellants' motions, but certified its orders for immediate review. This appeal results from the grant of appellants' applications for interlocutory appeals from the denial of their motions for summary judgment.

1. Appellants The Authority and Braves enumerate the denial of their motions for summary judgment as error, urging that, in their respective capacities as landlord and tenant, no genuine issue of material fact remains as to their liability for the injuries suffered by Leslie.

"Where an 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 caused by his failure to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. At the time that he was shot, Leslie was not on the stadium premises as a patron of the baseball game. He was on the premises in his capacity as an employee of ARA. However, this factor, standing alone, does not establish that, as a matter of law, The Authority and Braves owed no duty to Leslie and have no liability for the injuries that he suffered. In guarding ARA's concession receipts, Leslie was engaged in a facet of the business for which The Authority had leased the stadium premises to the Braves. "It is well to observe that where, as in this case, an owner of property leases it to be used in the conduct of a business, those coming upon the premises in connection with the conduct of the business are invitees of the owner and proprietor alike." Cooper v. Anderson, 96 Ga.App. 800, 808, 101 S.E.2d 770 (1957). See also Lowe v. Atlanta Masonic, etc., Co., 79 Ga.App. 575, 54 S.E.2d 677 (1949).

In this case, however, Leslie was on the premises in his capacity as ARA's armed security guard and he was shot by an armed robber while acting in that capacity. "In the absence of any allegation to the contrary, it must be assumed that [Leslie] was of ordinary intelligence and laboring under no disability which rendered him incapable of knowing and appreciating the dangers incident to his employment. The ordinary risks of the employment, though there be dangers attendant thereon, are assumed by the servant, and especially is this true where the dangers are obvious." Self v. West, 82 Ga.App. 708, 711-712(1), 62 S.E.2d 424 (1950). See also Hollingsworth v. Thomas, 148 Ga.App. 38, 250 S.E.2d 791 (1978); Thigpen v. Executive Committee, etc., of Ga., 114 Ga.App. 839, 152 S.E.2d 920 (1966). "The business invitee on private premises assumes the risk of danger of which he knows about and fully comprehends, or which is sufficiently obvious. [Cit.] ... Likewise there is no obligation to protect the invitee against dangers or hazards which are known to him or which are so obvious and apparent he may reasonably be expected to discover them. [Cits.]" Amear v. Hall, 164 Ga.App. 163, 169(2), 296 S.E.2d 611 (1982). The possibility of a face-to-face encounter with a criminal is an ordinary and obvious risk incident to employment as an armed security guard. Accordingly, as a matter of law, Leslie, by accepting employment as ARA's security guard, assumed the risk that he would have such encounters on the stadium premises. Leslie was, in effect, hired to provide an element of the very security that he alleges was negligently lacking. "[T]o place a duty on [appellants] to protect an armed guard from a generalized potential of harm is to engage in circular reasoning, 'i.e., there is a potential danger so [Leslie is hired as an] armed guard, [the] hiring [of] armed guards shows a potential danger, thus armed guards or other protective measures must be taken to protect the first armed guard from the original potential danger that he was hired to guard against in the first place.' " Hewett v. First Nat. Bank of Atlanta, 155 Ga.App. 773, 774, 272 S.E.2d 744 (1980). See also Carter v. Mercury Theater Co., 146 Mich.App. 165, 379 N.W.2d 409 (1985); Turner v. Northwest Gen. Hosp., 97 Mich.App. 1, 293 N.W.2d 713 (1980).

"There being no duty to exercise extraordinary care, there is no liability for an injury resulting to an invitee from a danger best known to the invitee who assumes the obvious risks and dangers inherent in the known circumstances. ( [cit.])." Tect Constr. Co. v. Frymyer, 146 Ga.App. 300, 303(1), ...