Epps v. Chattahoochee Brick Co., 52808

• Decision Date: 12 November 1976
• Docket Number: No. 52808,No. 1,52808,1
• Citation: 140 Ga.App. 426,231 S.E.2d 443
• Court: Georgia Court of Appeals
• Parties: Stella L. EPPS v. CHATTAHOOCHEE BRICK COMPANY

Page 443

231 S.E.2d 443

140 Ga.App. 426

Stella L. EPPS v. CHATTAHOOCHEE BRICK COMPANY.

No. 52808.

Court of Appeals of Georgia, Division No. 1.

Nov. 12, 1976.

Freeman & Mobley, James H. Mobley, Jr., E. Marcus Davis, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, J. M. Hudgins, IV, Atlanta, for appellee.

CLARK, Judge.

This appeal is by plaintiff from a summary judgment granted defendant. The issue is to determine if there is liability upon a property owner upon the facts presented where a six-year-old boy drowned when he slipped or fell into a small artificial lake located approximately 900 feet from an apartment complex. The situation presented was so similar to Montega Corp. v. Grooms, 128 Ga.App. 333, 196 S.E.2d 459 that the trial court relied upon that decision in ruling for the landowner in this suit by the mother for her son's death.

The lake was accessible either by a path through some woods or by a dirt road leading off of Bankhead Highway. Near the entrance of the dirt road were signs that read 'Lake Lucky-Good Fishing-No Night Fishing' and 'Lake Lucky.' The property, the lake, and the approaches to it had appearances of being abandoned or not maintained.

Some of the residents of the apartment complex knew of the lake, and there is evidence that it was used by children and others on occasion. No warning signs were posted and the lake was not fenced off. The child was upon the property with three other children at the time of the tragedy.

1. Plaintiff initially contends that the trial court erred in granting summary judgment because there is an issue of material fact as to the status of the deceased child, invitee or licensee, at the time of his death.

In Higginbotham v. Winborn, 135 Ga.App. 753(1), 218 S.E.2d 917 this court restated the test that must be met in order for a person to be classified as an invitee. The visitor must be on the owner's premises in connection with the owner's business and there must be some mutuality of interest in the subject of the visit between the visitor and the owner. This 'privity of interest' is necessary in order to hold an owner liable under either a theory of express or implied invitation. Higginbotham, supra, at pages 754-755, 218 S.E.2d 917, citing Hall v. Capps, 52 Ga.App. 150, 151, 152, 182 S.E. 625. 'In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. (Cits.). Cook v. Southern R. Co., 53 Ga.App. 723, 725, 726, 187 S.E. 274, 276.' Higginbotham, supra, 135 Ga.App. at page 755, 218 S.E.2d at page 920.

Applying this test to the facts and construing the evidence most favorably toward the plaintiff, we find that the child was not an invitee, but at most was a mere licensee.

The plaintiff argues, however, that the presence of the signs on the property constituted an invitation to the deceased and the community at large and that the 'benefit' the defendant derived therefrom was the goodwill of the community. This is without merit. If...