Bryant v. Rucker

• Decision Date: 16 March 1970
• Docket Number: No. 44667,Nos. 1,2,3,44667,s. 1
• Citation: 173 S.E.2d 875,121 Ga.App. 395
• Parties: Peggy BRYANT v. Eugene RUCKER et al
• Court: Georgia Court of Appeals

Page 875

173 S.E.2d 875

121 Ga.App. 395

Peggy BRYANT v. Eugene RUCKER et al.

No. 44667.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 16, 1970.

Paul C. Myers, Atlanta, for appellant.

Nall, Miller, Cadenhead & Dennis, Doughlas Dennis, Baxter L. Davis, Atlanta, for appellees.

Syllabus Opinion by the Court

HALL, Presiding Judge.

Plaintiff appeals from a summary judgment for the defendants. Plaintiff had brought her children to play at the home of defendants, who were family friends. This was not her first visit to their house. The carport was wet from water which the children had splashed out of a small swimming pool. One child had already slipped there the same day, but defendants did not warn plaintiff of the wet condition or the previous fall. Plaintiff slipped.

The law of Georgia and the decisions of this court hold that a social guest in a defendant's private home is a bare licensee. Stanton v. Grubb, 114 Ga.App. 350, 151 S.E.2d 237; Laurens v. Rush, 116 Ga.App. 65, 156 S.E.2d 482; Hall v. Capps, 52 Ga.App. 150, 182 S.E. 625.

"If plaintiff is a social guest in defendant's home, the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited. (Ann. 25 ALR2d 598.) This classification is often invoked to deny the host's liability for harm caused by a concealed danger that he did not know of, but which would have been discoverable by inspection. * * * Such a limitation of duty probably conforms to people's reasonable expectations in the ordinary host-guest situation. If the host is the kind of person who does not inspect and maintain his property on his own account, the guest scarcely expects an exception to be made on the occasion of his visit. In this country, moreover, where most social contact is among people who are on a similar economic footing, the host is usually in no better position than the guest to absorb or distribute the loss.' 2 Harper & James, The Law of Torts 1477, § 27.11. 'He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with the possessor. The use of the premises is extended to him merely as a personal favor to him. The explanation usually given by the courts for the classification of social guests as licensees is that there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family.' 2 Restatement of the Law, Torts 2d 175, § 330.' Laurens v. Rush, 116 Ga.App. 65, 66-67, 156 S.E.2d 482, 483-484.

The factual situation of the Stanton case is nearly identical to this case. In Stanton the water was tracked into the basement by other guests coming from the defendant's swimming pool. In this case the water was splashed in the yard outside the house by children.

This court has held, even as to a business invitee, that a business proprietor cannot reasonably be expected to prevent the presence of some water on a normal floor during a period of time when it is continually raining. Gibson v. Consolidated Credit Corp., 110 Ga.App. 170(2)(c), 138 S.E.2d 77; Card v. Chichester's Baconsfield Pharmacy, 111 Ga.App. 358, 141 S.E.2d 790; Angel v. Varsity, Inc., 113 Ga.App. 507, 148 S.E.2d 451. If a business proprietor is not required to be continually mopping up rainwater inside his store to protect a business invitee, it ought to follow that an owner of a private home is not required to be continually mopping up water around his swimming pool outside his house to protect a social guest.

This is not a case of hidden peril, pitfall or mantrap. Crosby v. Savannah Electric & Power Co., 114 Ga.App. 193, 198, 150 S.E.2d 563.

Judgment affirmed.

BELL, C.J., JORDAN, P.J., and EBERHARDT and WHITMAN, JJ., concur.

PANNELL, DEEN, QUILLIAN and EVANS, JJ., dissent.

PANNELL, Judge.

I am authorized to state that Judge Quillian and Judge Evans join in this dissent.

The majority has failed to concern itself with rules applicable to motions for summary judgment by a party defendant on whom the burden of proof does not lie upon the trial of the case but on whom it does lie when such defendant makes a motion for summary judgment, and this is such a case; and has also failed to call attention to, and has failed to consider, pertinent and controlling evidence such as, for example, that the defendant husband had placed a sharp metal object next to a puddle of water which created a slippery condition on the floor and his daughter had very recently slipped in this same puddle of water, all of which he knew as well as his wife. For these reasons, I do not deem it amiss that the complete pleadings and all of the material evidence be included in this opinion.

Mrs. Peggy Bryant brought an action against Eugene R. Rucker and Florence Rucker alleging: '1. The defendants above named are husband and wife and reside at 3371 Brookfield Lane, DeKalb County, Georgia and are subject to the jurisdiction of this court. 2. That at all times pertinent hereto defendants were the owners and occupants of a dwelling house situated at the above address. 3. That said dwelling of the defendants at all times pertinent hereto had adjacent thereto a carport with a smooth concrete floor surface. 4. That on July 10, 1967 plaintiff was a guest in the defendants' dwelling at about 5:30 p.m. and was walking on the paved surface of the carport aforesaid. 5. That, unknown to plaintiff, the paved surface of the carport was in a slick, hazardous and dangerous condition due to water which had been spilled or placed thereon by defendants or by persons whose identity is unknown to the plaintiff but well known to the defendants; that said slick, hazardous and dangerous condition of said payement was fully known to the defendants by reason of the fact that immediately prior to the incident and injury to the plaintiff hereinafter complained of, the daughter of the defendants had fallen on said slick pavement; that defendants knew of said fall. 6. That said slick and hazardous condition of the pavement was unknown to the plaintiff and could not have been discovered by plaintiff in the exercise of ordinary care; that plaintiff had no knowledge of the fact that the defendants' daughter had fallen by reason of said slick pavement nor did the defendants advise the plaintiff of such fact. 7. That as plaintiff was walking across said wet, slick and hazardous pavement, she slipped on same and fell upon a sharp and dangerous piece of sheet metal which the defendants had placed in the immediate area of said wet and slick pavement a few minutes prior to the time of the plaintiff's fall. 8. That said sheet metal severely lacerated the posterior portion of plaintiff's right thigh, causing a six and one half inch laceration in the skin thereof which required 64 sutures and which caused the plaintiff great pain, suffering and disability; that said laceration caused a permanent scar and keloid formation and has caused the plaintiff great anguish and humiliation. 9. That by reason of said injury plaintiff sustained great expense for medical attention and treatment and will amend this complaint to set same forth with full particularity prior to trial thereof. 10. That at all times pertinent hereto and immediately prior to the time of the plaintiff's fall as aforesaid and at the time of said fall and as the plaintiff was walking across said carport pavement, the defendant, Eugene R. Rucker, was standing in said carport area within a few feet of said slick and dangerous area of pavement and there existed no facts by reason of which the said defendant Rucker was prevented from giving to the plaintiff a warning concerning the wet, slick and hazardous condition of said pavement; that the defendants, including the said Eugene R. Rucker, wilfully failed to give the plaintiff any warning whatsoever of said wet, slick and hazardous condition of said pavement despite their actual knowledge thereof and despite the fact that the defendant, Eugene R. Rucker was then and there present and could have given the plaintiff a warning of said hazardous conditions without the slightest difficulty; that by reason of defendants' actual knowledge of the wet, slick and hazardous condition of said pavement, the defendants' omission to warn the plaintiff of said hazardous condition, constituted a wanton and grossly negligent disregard for the plaintiff's safety. 11. That by reason of said injuries, pain and suffering plaintiff was damaged in the sum of $15,000.00. 12. That all of said injury and damage to the plaintiff was proximately caused by the negligence of the defendants in the following particulars: (a) In that defendants failed to warn plaintiff of the wet, slick and hazardous condition of said paved floor despite their actual knowledge of said condition. (b) In that defendants placed said sharp and dangerous piece of metal in the immediate area of said wet, slick and hazardous portion of said pavement, or allowed said dangerous object to remain in said location, knowing of the slick and hazardous condition of said pavement, thus increasing the danger of injury to the plaintiff. Wherefore plaintiff prays and demands that a summons and process issue to defendants, requiring them to appear and answer hereof according to law and that plaintiff recover judgment against defendants in the sum of $15,000 and costs hereof.' The answer admitted paragraphs 1, 2 and 4 of plaintiff's action but denied all other paragraphs of the petition material to this case.

The defendants filed a joint motion for summary judgment based upon the pleadings and the deposition of the...