Bright v. Sandstone Hospitality, LLC

• Decision Date: 14 April 2014
• Docket Number: No. A13A1811.,A13A1811.
• Citation: 327 Ga.App. 157,755 S.E.2d 899
• Parties: BRIGHT et al. v. SANDSTONE HOSPITALITY, LLC et al.
• Court: Georgia Court of Appeals

327 Ga.App. 157

755 S.E.2d 899

BRIGHT et al.

v.SANDSTONE HOSPITALITY, LLC et al.

No. A13A1811.

Court of Appeals of Georgia.

March 26, 2014.

Reconsideration Denied April 14, 2014.

Patrick Arthur Cruise, Hubert E. Hamilton III, for Appellants.

Crim & Bassler, Jason Digges Darneille, Baker, Donelson, Bearman, Caldwell & Berkowitz, Harry W. Bassler, Steven Ryan Press, Joshua Neil Tropper, Atlanta, for Appellees.

RAY, Judge.

This appeal arises from a premises liability claim filed by Joe Wayne Bright ¹ against Sandstone Hospitality, LLC, and Wingate International Inns, Inc. Bright sued after he sustained injuries from a fall that occurred while he was a guest at a hotel owned by Sandstone and franchised by Wingate. The trial court, in two orders, granted Sandstone and Wingate's respective motions for summary judgment. Bright appeals, raising 11 enumerations of error. For the reasons that follow, we affirm as to Wingate, and reverse as to Sandstone.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Punctuation, footnotes and emphasis omitted.) Dew v. Motel Properties, Inc., 282 Ga.App. 368, 368, 638 S.E.2d 753 (2006). Such specific evidence, however, even if “meager and indefinite [may be] sufficient to establish the necessary standard as against a motion for [summary judgment] since this slight evidence must be considered in the light most favorable to plaintiffs.” Covil v. Robert & Co. Assocs., 112 Ga.App. 163, 167(1), 144 S.E.2d 450 (1965). We conduct a de novo review of a trial court's grant of summary judgment. Dew, supra.

Viewed in favor of Bright, the evidence shows that on August 11, 2008, Bright checked into a Wingate Inn. The next morning, he took a bath. When he attempted to rise from the tub using the grab bar to pull himself up, the bar pulled loose from the wall and he fell, striking his head and injuring his lower back, necessitating surgery. Bright sued Sandstone and Wingate, and now appeals from the trial court's grants of summary judgment in the defendants' favor.

1. We first address the grant of summary judgment to Wingate.²

(a) Apparent agency. Bright contends that the trial court erred in finding

that no genuine issue of material fact existed as to whether Wingate could be found responsible for any actions or inactions by Sandstone under an apparent agency theory.³

In order to recover under a theory of apparent or ostensible agency, a plaintiff must establish three elements: (1) that the alleged principal held out another as its agent; (2) that the plaintiff justifiably relied on the care or skill of the alleged agent based upon the alleged principal's representation; and (3) that this justifiable reliance led to the injury.

(Citation omitted.) Butkus v. Putting Greens Intl. Corp., 222 Ga.App. 661, 663, 475 S.E.2d 693 (1996).

Bright argues that Wingate, as the principal, held out Sandstone as its agent. In support of his argument, Bright points to Wingate's Standard of Operations Manual at Section 901.1, which provides that “Wingate by Wyndham standard exterior signage shall be incorporated into all projects[,]” and at Section 901.0, which provides that “[s]ignage must be approved by Wingate Inns International, Inc .... prior to installation of all exterior signs.” In an affidavit, Bright argues that he justifiably relied on Wingate's care and skill, and that he chose the hotel because “Wingate had a national reputation for safety, security and cleanliness.”

We have held that merely displaying signs or a trademark may be insufficient to establish an apparent agency relationship, Texaco Inc. v. Youngbey, 211 Ga.App. 789, 790, 440 S.E.2d 533 (1994), and that a failure to post a sign stating that someone other than the franchisor owns and operates a business is insufficient, standing alone, to show apparent agency. See Anderson v. Turton Dev., Inc., 225 Ga.App. 270, 275(2)(b), 483 S.E.2d 597 (1997). Further, “[t]o establish the required elements [of apparent agency], ... it is not enough that the plaintiff believe that an agency relationship exists.” (Citation omitted; emphasis in original.) Butkus, supra.

Bright relies upon Watson v. Howard Johnson Franchise Systems, Inc., 216 Ga.App. 237, 237, 453 S.E.2d 758 (1995). In Watson, a hotel displayed “HoJo Inn by Howard Johnson” signs, and the franchise agreement provided that all signage required prior approval from Howard Johnson. Further, the franchisee was required to post a sign saying it was independently operated, but it had not done so and Howard Johnson was aware of this. Id. The Watson court found that a jury issue existed as to whether an apparent agency relationship existed. Id.

In the instant case, by contrast, there was clear testimony from Amisha Patel, who was employed as a general manager and director of sales with Sandstone, that when Bright's fall occurred, a sign at the front desk of the hotel stated that the hotel was “owned and operated by Sandstone Hospitality, LLC.” See McGuire v. Radisson Hotels, Intl., Inc. 209 Ga.App. 740, 743(2), 435 S.E.2d 51 (1993) (physical precedent only) (where partnership operated hotel through franchise from Radisson, was authorized by franchise agreement to display Radisson signs, and posted no sign indicating that anyone other than Radisson owned and operated the hotel, no apparent agency found because partnership—rather than Radisson as the principal—was solely responsible for holding itself out as Radisson). Given the foregoing, Bright cannot meet the three-prong Butkus test, supra. As there is no genuine issue of material fact, the trial court did not err in concluding as a matter of law that there was no apparent agency relationship between Wingate and Sandstone.

(b) Third-party beneficiary. Bright argues that because Wingate undertook to

perform quality assurance inspections of its franchisees' properties, it assumed a duty to exercise ordinary care toward him as a hotel guest.

Wingate's franchise agreement at Section 3.9 requires franchisees to “acknowledge [their] participation in [Wingate's] quality assurance inspection program (including unannounced inspections)[.]” Further, Wingate's manual requires that there be a shower grab bar capable of supporting a 300–pound sustained weight. Dan Olsen, Wyndham Hotel Group's ⁴ director of quality assurance and conversions, testified that his department was tasked with inspecting only the cosmetic aspects of a hotel—such as whether the shower grab bar was rusty or unclean—and not its safety or function. He testified that he did not know what, if any, department inspected the grab bars for safety or to enforce the 300–pound sustained weight requirement.

Bright essentially is arguing that he is a third-party beneficiary of the agreement between Sandstone and Wingate that provides for inspections. OCGA § 9–2–20(b) provides: “The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” However

in personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury.

(Citations and punctuation omitted.) Anderson v. Atlanta Committee for the Olympic Games, Inc., 273 Ga. 113, 117(4), 537 S.E.2d 345 (2000). An examination of the franchise contract between Sandstone and Wingate shows no intent to benefit third persons such as hotel guests. The franchise agreement, under the heading, “Your Improvement and Operating Obligations” states: “We will not be liable to your ... guests, others or you on account of ... our inspection of the Facility before, during, or after your initial or any subsequent renovation.” ⁵ While the “Operations” section of the agreement makes no mention of liability, a blanket statement applicable to the entire agreement provides: “This Agreement is exclusively for the benefit of the parties. There are no third party beneficiaries.” Based on the foregoing, we conclude that Bright was not a third-party beneficiary to the agreements between Sandstone and Wingate, and the trial court correctly granted summary judgment to Wingate.

2. We next address the grant of summary judgment to Sandstone.

Owners or occupiers of land are liable to their business customers for injuries caused by the owners' failure to exercise ordinary care in keeping the premises and approaches safe. However, they are not insurers of their safety. In order to recover, the invitee must prove that (1) the defendant had actual or constructive knowledge of the hazard, and (2) the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the defendant's control. The basis for the owner's liability is the owner's superior knowledge of the existence of a condition that could subject the invitee to an unreasonable risk of injury.

(Punctuation and footnotes omitted.) Bonner v. Southern Restaurant Group, Inc., 271 Ga.App. 497, 499, 610 S.E.2d 129 (2005). See also OCGA § 51–3–1. “The mere fact that...