Brooks v. Logan, 50017

• Decision Date: 10 March 1975
• Docket Number: No. 2,No. 50017,50017,2
• Citation: 134 Ga.App. 226,213 S.E.2d 916
• Court: Georgia Court of Appeals
• Parties: Cynthia Ann BROOKS et al. v. F. A. LOGAN et al

Page 916

213 S.E.2d 916

134 Ga.App. 226

Cynthia Ann BROOKS et al. v. F. A. LOGAN et al.

No. 50017.

Court of Appeals of Georgia, Division No. 2.

March 10, 1975.

Peek, Arnold, Whaley & Cate, William H. Cate, Atlanta, for appellants.

John F. Davis, Jr., Richard L. Ormand, Atlanta, for appellees.

Syllabus Opinion by the Court

PANNELL, Presiding Judge.

This is an appeal from the grant of a summary judgment in favor of the defendants in a joint action by a father and child against a husband and wife, homeowners, seeking to recover damages for injuries received by the child when she stepped into a hole in defendants' front yard. Hospital and Doctor's bills were sought to be recovered by the father of the child. The hole in question was placed by a Municipal Water Department when it installed water lines to the house from the main in the street, it was about 11 feet from the edge of the street. There were no sidewalks. In the bottom of the hole was the water cutoff valve. The walls of the hole consisted of a terracotta pipe in the shape of a square with rounded corners and, as testified to by the child, was of a diameter longer than a pencil but shorter than one foot. The affidavit of the husband disclosed that the grass had been recently cut and that the lawnmower would run over the terracotta pipe when it was used to cut the grass; and that the terracotta pipe extended one and one-half to one and three-fourths inches above the ground. He further testified that immediately after the child was injured, he examined the area and that the grass did not obscure or hide the hole and that the hole could plainly be seen. The child's testimony was that the pipe was even with the ground; that the edges of the pipe were covered with grass 'and you couldn't see it'; that the grass had grown just around the edges of the pipe so there was a hole in the ground that the grass had not covered over. She further stated that all other yards in the neighborhood had a similar installation, some with the pipe extending above the ground and some even with the ground, including her own yard. She was pushing her bike at the time and was looking ahead instead of at the ground and did not see the hole. The child further testified that she and other children frequently used the yard as a passageway while going to and from school, there being no sidewalks in the area; that both defendants had been there in the carport on occasions when children used the yard as a passageway, but she could not say whether they had ever seen them or not; but that she had never been invited into the yard or given permission to cross the yard by the Logans and had not been invited on the occasion in question. There was evidence the wife had made an out-of-court statement to the father of the child after the injury; that she did not object to such use because there were no sidewalks and walking in the street was dangerous for the children. The husband's affidavit disclosed that he had no knowledge of such use. There was no affidavit or testimony from the wife. There was no evidence showing that it was necessary to go in the area where the hole was in order to stay out of the street. In answer to interrogatories and a question as to the plaintiff's 'contentions,' the father of the child, under oath in stating these contentions, said 'the aperture, or opening, was completely concealed from view by grass which had grown up, around and over the aperture and it could not be seen upon ordinary observation and the edge of the aperture was broken, with sharp edges.' There was no evidence to this effect; but only to the contrary.

1. The first question for determination is the status of the child and the duty of the owner resulting from this status. The child was clearly not an invitee by express or implied invitation, and this is practically conceded by the parties. Mere acquiescence in the child coming upon the premises on a few prior occasions is not sufficient to convert her presence on the occasion in question from that of the trespasser or licensee to that of an invitee. See McCall v. McCallie, 48 Ga.App. 99, 101(7, 8), 171 S.E. 843. The owner of land is under no duty or obligation to keep the premises in a safe condition for the benefit of trespassers, intruders, idlers, or bare licensees, or others who come upon it, not by invitation express or implied, but for their own pleasure or to gratify their curiosity, however innocent and laudable their purpose may be. Cook v. Southern Railway Co., 53 Ga.App. 723, 187 S.E. 274; Flint River Cotton Mills v. Colley, 71 Ga.App. 288, 30 S.E.2d 426; Jones v. Asa G. Candler, Inc., 22 Ga.App. 717, 719, 97 S.E. 112; Rawlins v. Pickren, 45 Ga.App. 261, 164 S.E. 223; Leach v. Inman, 63 Ga.App. 790(1), 12 S.E.2d 103; Bowers v. Texas Co., 65 Ga.App. 874, 16 S.E.2d 765. Where an injury is caused by a static condition, as in the present case, the act of the owner must be a wilful and wanton act in order for the injured party to recover. Leach v. Inman, supra. While, where the presence of the injured party on the owner's premises is known or should have been anticipated, the duty owing to him, whether he be classified as a trespasser or licensee is to use ordinary care to avoid inflicting injuries on him (Ga. Power Co. v. Deese, 78 Ga.App. 704, 707, 51 S.E.2d 724), it is also usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be or may reasonably be expected to be, within range of a dangerous act being done or a hidden peril on one's premises. Cook v. Southern Railway Co., 53 Ga.App. 723, 187 S.E. 274, supra.

2. The following was held by this court in Rowland v. Byrd, 57 Ga.App. 390, 195 S.E. 458: 'A child who strolls upon private premises to play, without the permission or consent of the owner or person in charge, is a trespasser upon the premises. The owner of premises, or person in charge thereof, owes no duty to keep the premises in a condition safe for trespassers who come thereon without the knowledge of the owner or person in charge, although the owner may have knowledge that it is customary for such trespassers to come upon the premises. It is not a violation of any duty owed by the owner of premises to a child who, as a trespasser, comes upon the premises to play, although the owner may know that it is a custom for children to come upon the premises to play, for the owner to permit the...