Hartley v. Macon Bacon Tune, Inc.

Decision Date11 July 1997
Docket NumberNo. A97A0238,A97A0238
Citation227 Ga.App. 679,490 S.E.2d 403
Parties, 97 FCDR 2661 HARTLEY et al., v. MACON BACON TUNE, INC.
CourtGeorgia Court of Appeals

Nelson & Lord, Ellis M. Nelson, Macon, for appellants.

Katz, Flatau, Popson & Boyer, Barbara S. Boyer, Macon, for appellee.

BIRDSONG, Presiding Judge.

Robin T. and Teresa L. Hartley appeal from the grant of summary judgment to Macon Bacon Tune, Inc. d/b/a Precision Tune in the Hartleys' suit arising from an incident in which Robin T. Hartley slipped and fell in Precision Tune's place of business. Teresa L. Hartley's claim is for her loss of consortium.

The record shows that on the day in question Hartley accompanied his friend, Marsh, to Precision Tune's premises so Marsh could have his car checked out by his son-in-law, a Precision Tune employee. Even though Hartley may not have known it, the record shows that Marsh previously had been ordered by Precision Tune's owner not to return to the premises because Marsh, according to the owner, was always trying to get work done for free by his son-in-law and Marsh was a nuisance to have in the shop because of his drinking. Marsh did not pay for any work done that day. The record further shows, however, that Hartley had no purpose on the premises other than to accompany Marsh. They were hanging out together.

The record also shows that it was raining and rain water was running off the cars brought in for repairs. It was obvious the shop floor was wet.

When Marsh and Hartley arrived at Precision Tune, the son-in-law waved them in and Marsh pulled his car in one of the mechanic's bays to be checked out. Hartley, wearing flip flop sandals, got out of the passenger side of the car and started to walk around to the front when he alleges he stepped in some oil or something and fell. He testified that he later saw he fell in "a big puddle of oil" which looked like new oil; it was light colored.

Hartley also testified that if he had been looking down, he could have seen the oil, but he was looking at Marsh's son-in-law. The oil did not blend into the floor; anyone looking down could have seen the oil, and there was nothing to prevent him from seeing the puddle.

After discovery, Precision Tune moved for and was granted summary judgment. The Hartleys then filed this appeal contending that the trial court erred by granting summary judgment because genuine issues of material fact remained for trial. Held:

1. The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. Further, when ruling on a motion for summary judgment, the nonmoving party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843.

2. Our initial consideration is to determine the legal status that Hartley enjoyed while he was on Precision Tune's premises. "The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon[] vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, a visitor under invitation, express or implied, or a person standing in some special relation recognized by law. The owner or proprietor of premises is liable to a licensee only for wilful or wanton injury. As to an invitee, the owner or proprietor owes the duty to exercise ordinary care. Whether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner of the premises. If the relationship solely benefits the injured person, he is at most a licensee. If the relationship is one of mutual interest to the parties, the injured party is an invitee of the owner. The enterprise must be mutual to the extent that each party is lawfully interested therein; or that there is common interest or mutual advantage involved. Monetary consideration is not essential." (Citation and punctuation omitted.) Walker v. Daniels, 200 Ga.App. 150, 154, 407 S.E.2d 70. As Hartley's deposition shows that he was merely in Precision Tune to accompany Marsh, he was a licensee. Restaura, Inc. v. Singleton, 216 Ga.App. 887, 888, 456 S.E.2d 219. See Adams & Adams, Ga. Law of Torts (1996 ed.) pp. 97-99, § 4-1. Because there is no evidence showing Precision Tune wilfully or wantonly injured Hartley, the trial court did not err by granting summary judgment to Precision Tune. Additionally, even applying the higher standards of care owed to a business invitee, the trial court did not err by granting summary judgment to Precision Tune because the record shows that Hartley produced no evidence that Precision Tune had actual or constructive knowledge of any oil on the floor and the record also shows that Hartley, by not looking where he was going, did not exercise ordinary care for his own safety.

3. It has been asserted that once a licensee's presence is known to a proprietor, a licensee is entitled to the same standard of care as an invitee in a premises liability case. Although this concept unfortunately has been misapplied in some earlier premises liability cases, recent Supreme Court cases establish that it is used properly only in cases involving a defendant's active negligence. See Lipham v. Federated Dept. Stores, 263 Ga. 865, 440 S.E.2d 193 (differentiating between cases concerning conditions of the premises and active negligence); Trammell v. Baird, 262 Ga. 124, 126, 413 S.E.2d 445 ("[h]owever, where the alleged negligence arises from static or passive conditions, the landowner owes the anticipated trespasser a duty not to injure him wilfully or wantonly"); Wade v. Mitchell, 206 Ga.App. 265, 266(2)(b), 424 S.E.2d 810 ("[a]ppellant was not injured by any defect on the truck stop premises pre-existing his arrival thereon"). See also Adams & Adams, supra at p. 69, § 3-5 ("[n]ote that this liability deals with active negligence and not with a static condition"). Thus, it is wrong to apply a rule applicable to active negligence cases in cases alleging a defect existing on the premises. "If the injury arises not from a preexisting defect in the premises but from a claim of active negligence arising from the owner's or occupant's alleged acts or omissions occurring at the time the plaintiff was on the premises, the liability test is the general negligence standard of foreseeability, rather than the more restrictive superior knowledge test." Adams & Adams, supra at p. 99, § 4-1.

Where an injury is caused by a condition on the property, "the act of the owner must be a wilful and wanton act in order for the injured party to recover. While, where the presence of the injured party on the owner's premises is known or should have been anticipated, the duty owing to him, whether he be classified as a trespasser or licensee is to use ordinary care to avoid inflicting injuries on him, it is also usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be or may reasonably be expected to be, within range of a dangerous act being done or a hidden peril on one's premises." (Citation and punctuation omitted; emphasis in original supplied.) Brooks v. Logan, 134 Ga.App. 226, 228(1), 213 S.E.2d 916. Therefore, because no evidence shows the oil came to be on the floor while Hartley was on the premises, the active negligence cases do not apply. Trammell v. Baird, supra.

Moreover, it is not clear how this case is different from the cases in which an owner has intentionally placed a slippery substance on the floor, or all the numerous cases in which it is alleged that foreign substances have been dropped, spilled, or left on floors. If adopted, the result of the active negligence analysis would be to eliminate the entire existing body of law regulating premises liability cases.

4. Any effort to disregard Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327, must be unsuccessful, if constitutional principles are to prevail. The Supreme Court of Georgia has not rejected or revised Alterman Foods. Therefore, the Alterman Foods standards are binding on this Court even though some may believe there is a better concept for allocating the burdens on the parties in these cases. "The decisions of the Supreme Court shall bind all other courts as precedents." Ga. Const.1983, Art. VI, Sec. VI, Par. VI; Coffey v. Wal-Mart Stores, 224 Ga.App. 824, 827, 482 S.E.2d 720.

In the same manner, this Court cannot deem the guidance on foreign substance cases in Alterman Foods as mere dicta. Pretermitting whether this Court could ever reject guidance provided by the Supreme Court in cases of gravity and public importance on this basis (see Ga. Const.1983, Art. VI, Sec. VI, Par. V; OCGA § 15-2-8) is the fact that Alterman Foods has been the seminal case in this area of the law for over 16 years. Thus, even if the foreign substance guidance could have been considered dicta originally, common sense and judicial stability dictate that it is too late for that now. Alterman Foods has been cited with approval, followed, and relied upon by this Court and our Supreme Court (see Martin v. Sears, Roebuck & Co., 253 Ga. 337, 320 S.E.2d 174) and cases relying upon Alterman Foods have been cited, followed, and relied upon by this Court and our Supreme Court in cases too numerous to mention. Consequently, the Alterman Foods principles are too well established in our law to be swept away merely by claiming that they are dicta. Alterman Foods and the cases citing Alterman Foods are the controlling precedent in the area of foreign substance slip and fall cases.

5. We also cannot otherwise avoid the guidance of our Supreme Court in Alterman Foods by attempting to redefine the term "foreign substances." Oil on the floor of a garage or service station which was not...

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