London Iron & Metal Co., Inc. v. Abney

• Decision Date: 07 May 1980
• Docket Number: No. 35831,35831
• Citation: 245 Ga. 759,267 S.E.2d 214
• Court: Georgia Supreme Court
• Parties: LONDON IRON & METAL COMPANY, INC. et al. v. ABNEY.

Page 214

267 S.E.2d 214

245 Ga. 759

LONDON IRON & METAL COMPANY, INC. et al. v. ABNEY.

No. 35831.

Supreme Court of Georgia.

Argued Feb. 12, 1980.

Decided April 22, 1980.

Rehearing Denied May 7, 1980.

Glenn Frick, Hamilton Lokey, Atlanta, for appellants.

Norris C. Broome, Eugene W. Hope, Atlanta, for appellee.

JORDAN, Presiding Justice.

We granted certiorari to review the Court of Appeals' decision in Abney v. London Iron & Metal Co., 152 Ga.App. 238, 262 S.E.2d 505 (1979).

Jerry W. Abney, plaintiff below, filed a complaint against London Iron & Metal Company, Inc., and London Iron & Metal Company, based upon the following undisputed evidence: At 2:30 a. m., on May 28, 1976, and in the course of their official duty, the plaintiff and a fellow police officer entered the defendants' unlighted warehouse by means of a rear window which was at least 75 feet from the only doorway to the warehouse. The plaintiff stepped from the ledge of the rear window onto a wooden pallet. When the wooden pallet broke, the plaintiff fell into a pit 8-10 feet deep containing a mixture of water and battery acid, thereby incurring personal injuries. The warehouse was used only for storage and was off-limits to all persons except five employees of the defendants. On the night of the plaintiff's misfortune, the defendants' premises were under the surveillance of a Wells Fargo Security guard who pointed out to the two police officers ("it is that building . . . go in and I will stay with the cars") which of the three warehouses on the defendants' premises had been the source of the burglar alarm.

The defendants answered and filed a motion for summary judgment which the trial court granted. The Court of Appeals reviewed the evidence submitted by both parties and reversed the trial court's grant of summary judgment on two independent grounds.

1. As its first ground, the Court of Appeals concluded that the grant of summary judgment was in error because, under the duty of care which an owner of land owes to an invitee (Compare Code Ann. § 105-401 (invitee) with § 105-402 (licensee)), the evidence did not demand a holding that the defendants were not liable to the plaintiff, and because the evidence did not demand a holding that the express permission to enter onto the defendants' premises which the Wells Fargo guard granted to the plaintiff did not constitute an invitation which by law, confers on its recipient the status of invitee.

Professor William L. Prosser states that express permission constitutes an invitation only if "circumstances . . . imply an assurance that the premises have been prepared and made safe for the particular visit." Prosser, Torts, § 60, p. 378 (4th Ed. 1971).

We note first that the single circumstance of plaintiff's being a police officer acting in the course of his official duty has been held traditionally not "to imply an assurance that the premises have been prepared and made safe for the particular visit" and thus not to sustain a finding of implied invitation. Cf. Baxley v. Williams Const. Co., 98 Ga.App. 662, 669, 106 S.E.2d 799, 805 (1958) ("(T)he right of a fireman to go upon premises to extinguish a fire is based on the permission of the law and not an invitation of the owner or occupier . . ."); Accord, Todd v. Armour & Co., 44 Ga.App. 609, 162 S.E. 394 (1931).

We note, further, that the present express permission was granted to the plaintiff in the course of his responding to a burglar alarm at 2:30 a. m. and in regard to a storage warehouse which was off-limits to all persons except five employees of the defendants.

Accordingly, we hold that, as a matter of law, the undisputed circumstances surrounding the Wells Fargo guard's express permission did not "imply an assurance that the premises (had) been prepared and made safe for the particular visit." See Baxley v. Williams Const. Co., 98 Ga.App. 662, 669, 106 S.E.2d 799, 805, supra ("(T)he right of a fireman to go upon premises to extinguish a fire is based on . . . permission . . . not . . . invitation . . . even if the owner or occupier turns in the alarm.").

As support for this holding, we note the following comment by Professor Prosser "(T)he one really valid basis for (classifying policemen as licensees as opposed to invitees) is . . . that . . . policemen are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where care in looking after the premises, and in preparation for the visit, cannot reasonably be looked for. A man who climbs in through a basement window in search of a . . . thief cannot expect any assurance that he will not find a bulldog in the cellar." Id., at 397-398; Accord, Baxley, 98 Ga.App. at 669, 106 S.E.2d 799.

Thus, we hold that as a matter of law the Wells Fargo guard's express permission did not constitute an invitation, and that the plaintiff was therefore a licensee as a matter of law.

2. As the second ground for reversal of the trial court's grant of summary judgment on behalf of the defendant, the Court of Appeals held that even if the present plain...