McGruder v. Georgia Power Co., 47237

• Decision Date: 14 June 1972
• Docket Number: No. 47237,No. 2,47237,2
• Citation: 191 S.E.2d 305,126 Ga.App. 562
• Parties: Willie Mae McGRUDER v. GEORGIA POWER COMPANY
• Court: Georgia Court of Appeals

Page 305

191 S.E.2d 305

126 Ga.App. 562

Willie Mae McGRUDER v. GEORGIA POWER COMPANY.

No. 47237.

Court of Appeals of Georgia, Division No. 2.

June 14, 1972.

Rehearing Denied June 28, 1972.

Benjamin B. Garland, Jackson, Hall & Bloch, Benjamin M. Garland, Macon, for appellant.

Jones, Cork, Miller & Benton, Wallace Miller, Jr., W. Warren Plowden, Macon, Richard W. Watkins, Jr., Jackson, for appellee.

Syllabus Opinion by the Court

HALL, Presiding, judge.

Plaintiff in a wrongful death action appeals from the grant of summary judgment for the defendant.

Plaintiff's ten-year-old son was swimming in the pool of water below defendant's dam and power plant on Lake Jackson. He was trapped and drowned inside a drainage pipe which runs from this pool to a lower-lying pool about 20 feet away. Plaintiff alleged several theories of liability in her petition: maintenance of a mantrap, attractive nuisance, failure to screen the pipe opening and failure to warn of the dangerous condition. In passing on the motions, the court had the benefit of defendant's answers to interrogatories and an affidavit from the plant superintendent identifying photographs of the area and stating that no admission fee was charged this boy.

1. Whatever liability the defendant may have for this occurrence is clearly governed

by Code Ann. §§ 105-403 through 105-409, a statute specifically enacted 'to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.'

'Except as specifically recognized by or provided in section 105-408, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.' Code Ann. § 105-405. Further, by either inviting or permitting recreational use, an owner does not 'extend any assurance that the premises are safe for any purpose' or 'confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.' Code Ann. § 105-406(a) and (b). There are only two exceptions to this very broad limitation of liability. One is when the owner charges an admission fee-which has no application here. The other is 'for wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.' Code Ann. § 105-408(a).

There is a seeming contradiction between the section which states that the owner has no duty to keep the premises safe or to warn of a dangerous condition and that section imposing liability for a 'wilful or malicious' failure to guard or warn. 'Malicious, of course, gives no problem. Even if the statute had failed to except malicious intent, it would have to be read in as a matter of public policy; but nothing in this record so much as suggests malice. However, 'wilful' is used in the alternative, following the disjunctive 'or'. What, then is a wilful failure and how does it differ from those omissions which section 405 sanctions?

'A 'wilful failure' imports a conscious, knowing, voluntary, intentional failure, a purpose or willingness to make the omission, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission.' Carpenter v. Forshee, 103 Ga.App. 758, 773, 120 S.E.2d 786, 796. In the context of the whole statute, it would seem that a wilful failure to guard or warn would...