Montega Corp. v. Grooms, 47427
| Citation | 128 Ga.App. 333,196 S.E.2d 459 |
| Decision Date | 05 January 1973 |
| Docket Number | 2,No. 47427,Nos. 1,3,47427,s. 1 |
| Parties | MONTEGA CORPORATION v. Evelyn G. GROOMS |
| Court | United States Court of Appeals (Georgia) |
Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Atlanta, for appellant.
Garland & Garland, Eugene R. Kiser, Atlanta, for appellee.
Syllabus Opinion by the Court
Mrs. Evelyn G. Grooms brought suit against Montega Corporation alleging that the defendant was engaged in the construction of an apartment complex and had bull-dozed an excavation on the site in which surface waters from a heavy rain accumulated, creating a pond which was about nine feet deep at the lower end. Her son, Orlando Grooms, aged 12, was drowned in the pond when he jumped into it for the purpose of rescuing his little four-year-old sister who had either fallen or jumped into the water and was in distress.
The defendant took depositions of plaintiff and her husband and, based upon these, together with an affidavit of defendant's president and a surveyor's plat of the construction site, moved for summary judgment. In opposition to the motion plaintiff submitted the affidavit of an employee of the defendant, who asserted that on several occasions he had observed children playing around the job site and that he had suggested to the defendant's president that the excavation be filled or fenced. Also submitted was the affidavit of a witness who stated he had seen plaintiff's children go onto the construction site toward the pond; that shortly afterwards he saw the little girl in the water in apparent distress; that decedent jumped into the water, after which affiant went to the poind, jumped in and rescued the little girl but failed in rescusing decedent, who was later found and brought up from the bottom of the pond by another. The accident happened about 8:30 p.m., June 17, 1971.
It appears that the excavation was made for the purpose of burying trash and debris which accumulated in the course of the construction (the burning of it being prohibited under Code Ann. Ch. 88). There was a chain link fence along the line between the Montega property and plaintiff's property which was too high for the children to have climbed; it had been necessary for them to go around it in order to get on the defendant's property. There was a barbed wire strand above the fence. The excavation was approximately 45 feet from the nearest property line. Defendant's president testified that the plaintiff's children 'had never been invited upon the premises, had never been employed to do any job for Montega Corporation, were not authorized to be on the land, and were upon it without the knowledge of Montega Corporation.' The motion for summary judgment was denied and defendant, obtaining a certificate for review, appeals. Held:
1. The evidence submitted, both in support of and in opposition to the motion, discloses that plaintiff's daughter was a trespasser and that her son was at most a bare licensee, to whom the defendant owed no duty save that of refraining from wilfully and wantonly injuring them. Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153, 156, 178 S.E. 451; Washington v. Trend Mills, Inc., 121 Ga.App. 659(2), 175 S.E.2d 111. One's status as a trespasser, licensee or invitee is not determined by his age or his capacity, mental or physical. Crosby v. Savannah Electric, etc., Co., 114 Ga.App. 193, 196, 150 S.E.2d 563; Atlanta & West Point R. Co. v. West, 121 Ga. 641, 646, 49 S.E. 711. It does not appear that the defendant had knowledge of the presence of the children on its premises on the occasion involved. It is not contended that the children were expressly invited to come onto defendant's premises, and the facts appearing do not support a claim of implied invitation. Savannah Ry. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82; McCall v. McCallie, 48 Ga.App. 99(7), 171 S.E. 843; Fickling v. City Council of Augusta, 110 Ga.App. 330, 138 S.E.2d 437; Crosby v. Savannah Elec., etc., Co., 114 Ga.App. 193(1, 2, 6), 150 S.E.2d 563, supra. That an owner may have permitted children to play upon his premises, or that there may be conditions thereon which are alluring to them does not amount to an implied invitation to children to go upon his land. Southern Cotton Oil Co. v. Pierce, 145 Ga. 130, 88 S.E. 672; Atlantic Coast Line R. Co. v. Corbitt, 150 Ga. 747, 105 S.E. 358; Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153, 178 S.E. 451, supra; Seaboard Airline R. Co. v. Young, 20 Ga.App. 292, 93 S.E. 29; Manos v. Myers-Miller Furn. Co., 32 Ga.App. 644, 124 S.E. 357; Haley Motor Co. v. Boynton, 40 Ga.App. 675, 150 S.E. 862; Smith v. Ga. Power Co., 43 Ga.App. 210, 158 S.E. 371; Brown v. Bone, 85 Ga.App. 22, 68 S.E.2d 190.
The placing of the chain link fence on the property line between the lands of plaintiff and defendant emphasizes a lack of invitation.
2. Kahn v. Graper, 114 Ga.App. 572 577, 152 S.E.2d 10; St. Clair v. City of Macon, 43 Ga.App. 598, 159 S.E. 758; Butler v. Brogdon, 110 Ga.App. 352, 138 S.E.2d 604.
There is much similarity in the facts and in the positions of the parties here and in Bowers v. Texas Company, 65 Ga.App. 874, 16 S.E.2d 765 where, holding that an injured child, whether trespasser or licensee, had no cause of action against the owner, it was asserted: 'As a general rule, the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who come upon them, not by any invitation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be.'
3. An open pond of water, whether natural of artificial, does not, of itself, constitute a mantrap. Savannah Ry. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82, supra; Crawford v. Pollard, 55 Ga.App. 702, 191 S.E. 162; Crews v. Slappey, 110 Ga.App. 496, 138 S.E.2d 919. Cf. Todd v. Armour & Co., 44 Ga.App. 609, 162 S.E. 394; Etheredge v. Central R. Co., 122 Ga. 853, 50 S.E. 1003. As to what constitutes a mantrap, see generally Crosby v. Savannah Elec. Co., 114 Ga.App. 193, 198, 150 S.E.2d 563, supra; Kahn v. Graper, 114 Ga.App. 572, 576, 152 S.E.2d 10, supra; Wilder v. Gardner, 39 Ga.App. 608, 147 S.E. 911; Stowe v. Gallant-Belk Co., 107 Ga.App. 80(3a), 129 S.E.2d 196; Baxley v. Williams Const. Co., 98 Ga.App. 662, 670, 106 S.E.2d 799.
4. The turntable or attractive nuisance doctrine does not apply to ponds or other water hazards. Savannah F. & W.R. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82, supra; St. Clair v. City of Macon, 43 Ga.App. 598, 159 S.E. 758, supra; McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843, supra; Fickling v. City Council of Augusta, 110 Ga.App. 330, 332, 138 S.E.2d 437, supra; Crews v. Slappey, 110 Ga.App. 496, 138 S.E.2d 919, supra; Venable v. Langford, 116 Ga.App. 257, 258, 157 S.E.2d 34.
5. Since it appears that the deceased was a trespasser, or, at most a bare licensee, the defendant 'would not be liable for anything but affirmative acts amounting to wilfulness.' Baxley v. Williams Const. Co., 98 Ga.App. 662, 670, 106 S.E.2d 799, 805, supra. No such affirmative acts on the part of the defendant appear, by pleading or by evidence.
6. 'A person who creates or maintains a pond of water upon private premises is under no duty to maintain it in a condition of safety, as against drowning, for children who, with the mere acquiescence and knowledge of the owner but without express and implied invitation, come upon the premises and go in the pond.' St. Clair v. City of Macon, 43 Ga.App. 598(1), 159 S.E. 758, supra.
'One who makes an excavation upon his land is not bound to so guard it as to prevent injury to children who come upon it without his invitation, express or implied, but who are induced to do so merely by the alluring attractiveness of the excavation and its surroundings.' Savannah F. & W.R. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82, supra. That the escavation may be filled with water does not change this rule. Crawford v. Pollard, 55 Ga.App. 702, 191 S.E. 162, supra; McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843, supra; Crews v. Slappey, 110 Ga.App. 496, 138 S.E.2d 919, supra. That the excavation was not itself fenced so that children could not get to it does not impose liability on the owner. Savannah F. & W.R. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82, supra.
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