Clark v. Rich's Inc., 42052
| Decision Date | 06 September 1966 |
| Docket Number | No. 1,No. 42052,42052,1 |
| Citation | 150 S.E.2d 716,114 Ga.App. 242 |
| Parties | Christopher CLARK, by Next Friend v. RICH'S INC., et al |
| Court | Georgia Court of Appeals |
Holcomb & McDuff, Frank D. Holcomb, Robert E. McDuff, Marietta, for appellant.
Bryan, Carter, Ansley & Smith, Henry M. Quillian, Jr., Smith, Ringel, Martin & Lowe, H. A. Stephens, Jr., Atlanta, for appellees.
Syllabus Opinion by the Court
1. Where, in a petition seeking damages on account of injuries sustained by the plaintiff by reason of the wrecking of an automobile alleged to have been proximately caused by the negligence of the defendants in maintaining the parking lot of a shopping center, it appears that the plaintiff, together with his brother, went to the shopping center at 10:20 p.m., on the night of the injury for the purpose of trading with the defendant department store located therein, and where the sole reason assigned for visiting the center at such an hour was that the shopping center had been opened only for a few weeks and 'all stores had not been opening and closing at the same time and because of its recent opening plaintiff felt that Rich's, Inc. store would be opened for business at the time he entered upon the parking lot,' in the absence of allegations that the defendant Rich's, Inc. store had in fact on previous occasions been open at such a late hour, and that the plaintiff knew that it had been opened at such a late hour, or of an allegation that some other store or stores in the shopping center were open at the time, these allegations were insufficient to establish that the plaintiff was an invitee on the premises rather than a mere licensee. Construing the allegations of the petition most strongly against the pleader, as we are required to do on general demurrer, the plaintiff alleges that it is not customary for department stores such as the defendant Rich's to remain open until 10:20 p.m., and we would be inclined to apply this custom to the allegations of the petition if this construction were not authorized, under the principle of judicial notice. Code § 38-112. One who goes upon the premises of a merchant at a time other than a time when such merchant might reasonably be expected to be open for business or at a place to which the invitation to visit does not extend is, at most, a mere licensee on the premises. Nocar v. Greenberg, 210 Md. 506, 124 A.2d 757, 763; Mandeville Mills v. Dale, 2 Ga.App. 607, 611, 58 S.E. 1060.
2. The owner or occupier of premises owes to a mere licensee only the duty not to injure him wilfully or wantonly once his presence is discovered nor to maintain a pitfall or...
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...as an invitee to the park for the mutual benefit of the parties, but as a licensee for his sole convenience. Id.; Clark v. Rich's, Inc., 114 Ga.App. 242, 150 S.E.2d 716 (1966). Because Martin was not an invitee when the injury occurred, his claim under OCGA § 51–3–1 failed as a matter of la......
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