Chatham v. Larkins, 50409

• Citation: 134 Ga.App. 856,216 S.E.2d 677
• Decision Date: 16 May 1975
• Docket Number: No. 50409,No. 2,50409,2
• Parties: R. P. CHATHAM v. Gladys T. LARKINS et al
• Court: United States Court of Appeals (Georgia)

Page 677

216 S.E.2d 677

134 Ga.App. 856

R. P. CHATHAM v. Gladys T. LARKINS et al.

No. 50409.

Court of Appeals of Georgia, Division No. 2.

May 16, 1975.

Dennis & Fain, Douglas Dennis, Martin D. Chitwood, Atlanta, for appellant.

Rich, Bass, Kidd & Witcher, William G. Witcher, Jr., Decatur, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal again presents the perennial problems: (1) do the facts of the instant case show plaintiff to be a licensee or an invitee? (2) did the plaintiff as a matter of law fail to exercise the required duty of ordinary care for her own safety? This time the case comes to us via an immediate review certificate in which a defendant landlord appeals from the denial of his motion for summary judgment. Plaintiff wife was injured when she was on defendant's premises to return some foods to a tenant at the tenant's request. These edibles were to be available for a church social scheduled for the next day. She and the tenant were members of the same Sunday School class. The husband as co-plaintiff sues for medicial expenses and loss of consortium. Negligence charged against the defendant include a failure to maintain a safe entrance and exit, failure to keep the sidewalk and surrounding area of the apartment complex in safe and good repair, and failure to warn plaintiff of defects or dangers in the premises.

We reconstruct the facts from the depositions to be as follows: Both plaintiffs, husband and wife, in compliance with a request of one of defendant's tenants, entered the landlord's premises. Their mission was to return hamburger meat and buns which had been stored in their freezer as an accommodation for the tenant. Their acceptance of these viands had occurred several weeks before and marked the only other occasion upon which plaintiffs visited the tenant's place of abode.

On their previous visit, plaintiffs, in approaching the tenant's apartment unit, traversed the entire apartment complex walkway without departing from the concrete. But when plaintiffs arrived at the landlord's premises on the day in question, a moving van blocked their path to the foot of the walkway. To enter the tenant's apartment, therefore, plaintiffs walked across the lawn of the complex until they reached a point at which they could gain access to the sidewalk. They then proceeded on the walkway to the tenant's apartment and, finding the tenant not at home, left the foodstuffs with the tenant's daughter. Returning to their automobile, plaintiffs departed from the walkway on account of, again, the presence of the moving van.

The walkway was not level with the ground and at their point of departure it was necessary for plaintiffs to step down approximately nine or ten inches. As the wife stepped down she was aware that the lawn was lower than the sidewalk; nevertheless, she lost her footing ('my foot hit something') and fell, breaking a bone in her knee. As he calmed and helped his wife, the husband noticed two pipes, which were partially hidden by vines, protruding from under the walkway. The pipes were approximately fifteen or eighteen inches from the point at which the wife's foot came to rest. Neither plaintiff had seen the pipes until that time. Held:

1. 'As regards the liability of the owner of an apartment house, a guest of a tenant therein may be an invitee. (Cits.) Under the rules applicable, therefore, a landlord is liable to one lawfully brought on the rented premises, by invitation of the tenant, for injuries arising from failure to keep the premises in repair, where the defect is known to the landlord or in the exercise of reasonable diligence could have been known, provided, of course, the person killed or injured was himself in the exercise of due care. (Cit.).' Rothberg v. Bradley, 85 Ga.App. 477, 483, 69 S.E.2d 293, 298.

Recognizing this principle, the landlord argues that (1) the wife was a licensee and, therefore, cannot recover in the absence of a showing that he wilfully and wantonly injured her; and (2) the wife did not exercise due care for her own safety. We consider these arguments seriatim.

2. Was the wife an invitee or a licensee? 'A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification.' Code § 105-402; Petree v. Davison-Paxon-Stokes Co., 30 Ga.App. 490, 492, 118 S.E 697. Thus, whether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner (or tenant) of the premises. If the relation solely benefits the person injured, he is at most a licensee. If, on the other hand, the relation was of mutual interest to the parties, he is an invitee. Cook v. Southern Railway Co., 53 Ga.App. 723, 725(2a), 187 S.E. 274; Fries v. Atlanta Enterprises, Inc., 66 Ga.App. 464, 17 S.E.2d 902.

While the mutuality of interest required to render a person an invitee does not necessarily contemplate mutual economic or monetary advantage (Candler General Hospital v. Purvis, 123 Ga.App. 334, 336(2), 181 S.E.2d 77), the legal status of a mere social guest is, nevertheless, that a licensee. Laurens v. Rush, 116 Ga.App. 65, 156 S.E.2d 482; Patterson v. Thomas, 118 Ga.App. 326, 163 S.E.2d 331; Rodriguez v. Newby, 131 Ga.App. 651,...