Harris v. Inn of Lake City

• Decision Date: 10 May 2007
• Docket Number: No. A07A0952.,A07A0952.
• Citation: 285 Ga. App. 521,647 S.E.2d 277
• Parties: HARRIS et al. v. INN OF LAKE CITY.
• Court: Georgia Court of Appeals

285 Ga. App. 521

647 S.E.2d 277

HARRIS et al. v. INN OF LAKE CITY.

No. A07A0952.

Court of Appeals of Georgia.

May 10, 2007.

Reconsideration Denied May 24, 2007.

James A. Yancey Jr., Brunswick, for appellants.

Leslie J. Thompson, Michael G. Frick, Hall, Booth, Smith & Slover, Brunswick, for appellee.

BLACKBURN, Presiding Judge.

In this premises liability suit, Patricia Harris and Billy Carter appeal the grant of summary judgment to Inn of Lake City d/b/a King and Prince Beach & Golf Resort (the "Resort"), contending (1) that the trial court erred in ruling that the steps where they fell was not an "approach" to the Resort's property, and (2) that material issues of fact exist as to whether the Resort nevertheless maintained or had knowledge of the dangerous condition of the steps. Finding no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.¹

So viewed, the record shows that, in October 2001, upon arriving as guests at the Resort at approximately 8:30 p.m., Harris and Carter asked the front desk staff for directions to the beach. The Resort's staff directed Harris and Carter to a gate off the Resort's pool area that led to a path and a set of wooden stairs descending to the beach.

As Harris and Carter descended the stairs they stepped off the last available step into a deep hole full of water, in which they were totally submerged. Surprised, they struggled out of the hole, regained composure, and reported the incident to the Resort. Carter stated in his deposition that at least one of the bottom steps was missing. As a result of the fall, both Harris and Carter were injured, and they filed a premises liability suit against the Resort seeking damages.

After discovery, the Resort filed a motion for summary judgment, arguing that the Resort was not liable because the stairs were on property not owned by the Resort and the Resort had no control over the stairs. The trial court granted the motion, giving rise to this appeal.

1. Harris and Carter contend that the trial court erred in failing to conclude that, although the Resort did not own the stairs, the Resort was nonetheless liable because the stairs were an "approach" to Resort property. We disagree.

Under OCGA § 51-3-1, "[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." (Emphasis supplied.) In this context, the term "approach" has been defined

to mean that property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended. By "contiguous, adjacent to, and touching," we mean that property within the last few steps taken by invitees, as opposed to "mere pedestrians," as they enter or exit the premises. It is only within the confines of this limited approach that [case law] imposes a duty on a landowner to exercise ordinary care over property not within the landowner's control.

(Citation and footnote omitted. Emphasis supplied: citation omitted.) Motel Properties v. Miller.² See Elmore of Embry Hills, Inc. v. Porcher³ ("approaches . . . refers to the sidewalk or other approach that is directly contiguous, adjacent to, and touching the premises under control of the owner or occupier") (punctuation omitted).

Here, it is undisputed that the stairs are located on land owned by Glynn County, not the Resort. The evidence of record shows that when a person passes through the gate at the edge of the Resort property, the person steps onto the final portion of the county's paved pathway leading from the street to a short wooden walkway (over a rock erosion barrier), which connects to the wooden stairs where Harris and Carter fell. The record shows that the county owns all areas outside the Resort's gate: the paved pathway, the wooden walkway, the stairs leading to the beach, and the beach.

The plaintiffs' injuries occurred at the bottom of the stairs when they stepped from the last available step and fell into a hole in the sand, on the county-owned beach, apparently filled with tide water. At the point where their injuries occurred, the plaintiffs had passed through the Resort gate (at the Resort's property line), stepped onto the county-owned paved pathway, walked across the short wooden walkway over the rock barrier, and descended the stairs. In light of these facts, and in light of the case law construing the term "approach," we hold that the plaintiffs' injuries did not occur on an "approach" for which the Resort has a duty to maintain under OCGA § 51-3-1. The plaintiffs' injuries occurred as they stepped from the wooden stairs to the beach, not on a "sidewalk or other approach that is directly contiguous, adjacent to, and touching the premises under control of the" Resort. Elmore of Embry Hills, Inc. v. Porcher, supra, 124 Ga.App. at 420, 183 S.E.2d 923. Nor did the plaintiffs' injuries occur "within the last few steps taken by invitees." Motel Properties v. Miller, supra, 263 Ga. at 486(2), 436 S.E.2d 196. Indeed, pedestrians passing by the resort and walking along the county-owned pathway from the street to the beach would use the same set of stairs. Therefore, based on the record before us, the trial court did not err in ruling that the Resort did not have a duty under OCGA § 51-3-1 to keep safe the stairs where plaintiffs were injured.

2. Harris and Carter also contend that the record presents material issues of fact as to (a) whether the Resort undertook to maintain the stairs, and did so negligently, and (b) whether the Resort had prior knowledge of the dangerous condition, thereby giving rise to a duty to warn Harris and Carter of the condition of the stairs. We disagree.

(a) Whether the Resort undertook to maintain the stairs. Although the Resort did not have a duty to maintain the stairs under OCGA § 51-3-1, the Resort

may be held liable for the negligent performance of a voluntary undertaking. Under this principle, one who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary . . . . When one undertakes an act that he has no duty to perform and another person reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. The person assuming such responsibility may be held liable for negligently performing the duties so assumed.

(Citations omitted.) Osowski v. Smith.⁴

Here, as evidence of the Resort's liability, Harris and Carter point to an affidavit from Harris in which she averred that (1) several Resort personnel told her that the Resort had maintained the steps, and (2) nearly four years later, when she telephoned and spoke to a specific Resort employee named "Alex," he told her that the steps were constructed and maintained by the Resort.

With respect to Harris's statement involving several unnamed employees,...