Laurens v. Rush, 42860

• Decision Date: 23 June 1967
• Docket Number: No. 42860,No. 1,42860,1
• Citation: 116 Ga.App. 65,156 S.E.2d 482
• Parties: Dorothy F. LAURENS v. Louise D. RUSH
• Court: Georgia Court of Appeals

Page 482

156 S.E.2d 482

116 Ga.App. 65

Dorothy F. LAURENS v. Louise D. RUSH

No. 42860.

Court of Appeals of Georgia, Division No. 1.

June 23, 1967.

Syllabus by the Court

The legal status of a social guest in a defendant's home is that of a licensee.

This is an appeal from the judgment of the trial court sustaining the defendant's renewed general demurrer to the petition as amended. The plaintiff sought damages arising out of personal injuries she sustained late in the evening when leaving the defendant's home to which she had been invited to play a social game of bridge. The defendant's alleged negligence was generally in failing to adequately light the steps, provide a handrail or bannister and warn the plaintiff of the illusory effect created by the inadequate lighting.

E. T. Hendon, Jr., Decatur, for appellant.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, William T. Johnson, Meade Burns, Atlanta, for appellee.

HALL, Judge.

This case presents the question of the duty owed to a social guest of an owner or occupier of land-a difficult problem in semantics. While a rose is a rose, the invited are not always invitees. "Invitation' is today a much discredited work, if only because a private social guest is invited, and yet is not in the legal sense an 'invitee." Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573, 585.

'If plaintiff is a social guest in defendant's home, the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited. (Ann. 25 A.L.R.2d 598). This classification is often invoked to deny the host's liability for harm caused by a concealed danger that he did not know of, but which would have been discoverable by inspection. * * * Such a limitation of duty probably conforms to people's reasonable expectations in the ordinary host-guest situation. If the host is the kind of person who does not inspect and maintain his property on his own account, the guest scarcely expects an exception to be made on the occasion of his visit. In this county, moreover, where most social contact is among people who are on a similar economic footing, the host is usually in no better position than the guest to absorb or distribute the loss.' 2 Harper and James, The Law of Torts 1477, § 27.11. 'He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with the possessor. The use of the premises is extended to him merely as a personal favor to him. The explanation usually given by the courts for the classification of social guests as licensees is that there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family.' 2 Restatement of the Law, Torts 2d 175, § 330.

In our opinion this case is controlled by Stanton v. Grubb, 114 Ga.App. 350(2), 151 S.E.2d 237 which held: 'The legal status of Mrs. Stanton as an invited social visitor in the home of the defendant was that of a licensee and not an invitee, no special mutuality of interest being alleged (Hall v. Capps, 52 Ga.App. 150(3, 4), 182 S.E. 625; Martin v. Henson, 95 Ga.App. 715, 99 S.E.2d 251; Campbell v. Eubanks, 107 Ga.App. 527, 130 S.E.2d 832), and since the petitions do not show that the defendant breached any legal duty which she owed to her in that capacity under Code § 105-402, the trial court did not err in dismissing the petitions on oral motions of the defendant.'

The test of 'mutuality of interest' under Code § 105-402 is generally used in reference to a business in which the occupant is engaged or which he permits to be carried on there; it has no application in regard to a mere social guest. Hall v. Capps, 52 Ga.App. 150, 182 S.E. 625. To hold otherwise would be to say that while a driver of an automobile owes no duty of ordinary care to a social guest as to active negligence, an owner or occupier of land owes a duty of ordinary care to a social guest as to static negligence. In our opinion, that won't wash.

A licensee cannot recover by showing that the defendant was merely negligent, but must show that the defendant wilfully and wantonly injured her.

The trial court did not err in sustaining the defendant's renewed general demurrer to the petition as amended.

Judgment affirmed.

EBERHARDT, J., concurs.

FELTON, C.J., concurs specially.

FELTON, Chief Judge (concurring specially in the judgment and dissenting from the ruling that the guest in this case was a mere licensee).

Mrs Dorothy F. Laurens brought an action against Mrs. Louise D. Rush for damages for personal injuries sustained in a fall on the defendant's steps caused by the defendant's alleged negligence. The petition, as finally amended, alleged substantially as follows: At approximately 7:30 p.m. on October 24, 1962, the plaintiff entered the defendant's residence at her invitation to play a bridge game. Adjoining the front door and extending approximately two-thirds of the distance across the front of the house is an approximately 14 foot wide porch, at one end of which were situated 3 or 4 steps from the porch to the ground. An electric light next to the door lighted the porch, but was so situated that it did not provide adequate lighting upon the steps, but cast shadows upon the steps from the top to the bottom, creating an illusory effect as to the dimensions and location of the steps. Anyone attempting to leave the house by way of the front door must necessarily come directly between the light and the steps, causing additional shadows upon the steps which must be descended. There was provided no handrail or bannister. Upon leaving defendant's home at approximately 10:30 or 11:00 p.m., the plaintiff became deceived and confused as to the exact location and dimensions of the steps because of the aforesaid illusory effect and fell down the steps, causing her alleged injuries. The defendant had actual knowledge of all of the alleged conditions and knew, or in the exercise of ordinary care should have known, them to be dangerous. This was the plaintiff's first visit to the defendant's premises and the illusory effect was not noticeable to her as she ascended the steps. The defendant failed to warn her of the existence of the alleged dangerous condition. The defendant's alleged negligence was, generally, in failing to adequately light the steps, provide a handrail or bannister and warn the plaintiff of the illusory effect created by the inadequate lighting.

The plaintiff appeals from the judgment of the trial court sustaining the defendant's renewed general demurrer to the petition as amended.

1. There is considerable authority in this State for the proposition that an invitee who uses an unlighted or inadequately lighted area, such as a stairway, assumes the risks of such lack of illumination, so as to preclude as a matter of law his recovery against the owner of the premises for damages for injuries sustained in such use, even where the owner is guilty...