Motel Properties, Inc. v. Miller

• Decision Date: 01 November 1993
• Citation: 263 Ga. 484,436 S.E.2d 196
• Parties: MOTEL PROPERTIES, INC., d/b/a The Comfort Inn of Jekyll Island v. MILLER. S93G0406.
• Court: Georgia Supreme Court

Page 196

436 S.E.2d 196

263 Ga. 484

MOTEL PROPERTIES, INC., d/b/a The Comfort Inn of Jekyll Island v. MILLER.

S93G0406.

Supreme Court of Georgia.

Nov. 1, 1993.

Morton G. Forbes, John A. Foster, Forbes & Bowman, Savannah, for Motel Properties, Inc.

John P. Batson, Augusta, Michael J. Bowers, Atty. Gen., Roland F. Matson, Senior Asst. Atty. Gen., Atlanta, for Miller.

HUNSTEIN, Justice.

J.E. Miller brought suit against Motel Properties, Inc. d/b/a The Comfort Inn of Jekyll Island seeking damages incurred when he, while an invitee at the motel, fell on what he alleged to be an approach to the motel's premises. Miller amended his complaint to add as a defendant the Jekyll Island State Park Authority; the Authority is not a party to the current appeal. The trial court's denial of the motel's motion for summary judgment was affirmed on interlocutory appeal to the Court of Appeals. Motel Properties, Inc. v. Miller, 206 Ga.App. 370, 425 S.E.2d 334 (1992). We granted certiorari to address whether Miller's injury occurred on an approach to the motel's premises so as to call into application our holding in Todd v. F.W. Woolworth Co., 258 Ga. 194, 366 S.E.2d 674 (1988). We conclude the injury did not occur on an approach and accordingly reverse.

Miller fell on a border of rock and concrete boulders, known as "rip-rap," that had been placed along the Atlantic Coast shoreline of Jekyll Island in the 1960's to retard the natural displacement of beach sand. The rip-rap is on State property governed by the Jekyll Island State Park Authority. The motel's property, which abuts the beach, is leased from the Authority. A sidewalk extends 200 feet from the motel's lobby to the unmarked edge of the motel's leasehold and ends 169 feet past the motel's property, at a point some 27 feet before the rip-rap on which Miller fell begins. ¹ It is uncontroverted that the motel was not responsible for the placement of the rip-rap and that there was nothing negligent about the placement and presence of the rip-rap.

Construing the evidence in favor of Miller, as the respondent on motion for summary judgment, it appears that he was unaware the beach was bordered by the rip-rap when, after a day spent driving around the island, golfing, shopping, and lounging at the motel's swimming pool, ² he and his companion decided to take a midnight stroll on the beach. It is uncontroverted that Miller was not given any oral or written notice warning him about the presence of the rip-rap. Miller knew before he left that there were no lights artificially illuminating the beach. ³ The couple did not carry a flashlight on the walk, could not recall the presence of moonlight, and knew by the time they reached the end of the sidewalk that it was too dark to see anything in front of them, although Miller deposed he was able to tell by the feel of the sand under his feet the point at which he stepped off the end of the sidewalk. Miller continued walking forward in the darkness and fell on the rip-rap, injuring his head.

1. An owner or occupier of land is liable in damages to invitees for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1; Todd v. F.W. Woolworth Co., supra. In Todd, this court addressed the duties a landowner has with regard to approaches to his premises and construed OCGA § 51-3-1 to impose a duty on a landowner regarding approaches to his premises that are public ways to exercise due care within the limited confines of his right in the public way, notwithstanding the landowner's lack of control over that public way approach. Id. at 197 (1), 366 S.E.2d 674. We were not called upon in Todd to address the issue present in this case, i.e., what physically constitutes an approach, since the defendant in Todd had admitted the plaintiff had been injured on an approach to its premises. See id. 258 Ga. at 197 (1), 366 S.E.2d 674. As to the factual question regarding what physically constitutes an approach, this Court referred with approval to Elmore of Embry Hills v. Porcher, 124 Ga.App. 418, 183 S.E.2d 923 (1971), in which it was held that except in certain circumstances, ⁴ the term "approaches" as used in OCGA § 51-3-1 "refers to the sidewalk or other approach that is directly contiguous, adjacent to, and touching the premises under control of the owner or occupier." Elmore of Embry Hills, supra at 420, 183 S.E.2d 923.

2. We construe "approaches" to mean that property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended. By "contiguous, adjacent to, and touching," we mean that property within the last few steps taken by invitees, as opposed to "mere pedestrians," Todd, supra 258 Ga. at 197 (2), 366 S.E.2d 674, ⁵ as they enter or exit the premises. It is only within the confines of this limited approach that Todd imposes a duty on a landowner to exercise ordinary care over property not within the landowner's control.

3. There are, of course, exceptions to this definition. As noted in Elmore of Embry Hills, supra, under certain circumstances non-contiguous property can be deemed an approach because the landowner extended the approach to his premises "by some positive action on his part, such as constructing a sidewalk, ramp, or other direct approach." (Emphasis supplied.) Id. Accord Scoggins v. Campbellton Plaza Corp., 114 Ga.App. 23(1), 150 S.E.2d 179 (1966). Such an exception is based on the fact that the owner or occupier of land, for his own particular benefit, has affirmatively exerted control over a public way or another's property. ⁶ The requirement of an act reflecting a landowner's positive exercise of dominion over a public way or another's property is necessary in order to avoid "impos[ing] upon invitors an unknowable and impossible burden for maintaining an undefined circumference of properties." Todd, supra 258 Ga. at 198, 366 S.E.2d 674 (Weltner, J., dissenting).

4. Given this definition of "approach," no question of fact remains that Miller did not injure himself on an approach to the motel's premises so as to impose on the motel pursuant to OCGA § 51-3-1 any duty to exercise ordinary care on Miller's behalf. At the time of his fall, Miller was approximately 196 feet away from premises controlled by the motel. ⁷ No exception to the contiguous approach definition applies in this case because even assuming, arguendo, that the sidewalk past the motel's property constituted an extension of the approach to the motel, it is uncontroverted Miller's fall did not occur on the sidewalk but instead occurred on rocks some 27 feet past the end of the sidewalk at a location over which the motel exercised no positive control. We reject the argument that the duty imposed on owners and occupiers of land by OCGA § 51-3-1 extends to what at best is an approach to an approach.

Accordingly, because the evidence is uncontroverted that Miller was not injured on the premises or approaches of the motel, the Court of Appeals erred by affirming the trial court's denial of the motel's motion for summary judgment. ⁸

Judgment reversed.

CLARKE, C.J., and BENHAM and FLETCHER, JJ., concur.

HUNT, P.J., SEARS-COLLINS, J., and CLOUD MORGAN, Judge Sitting by Designation, dissent.

CARLEY, J., disqualified.

HUNT, Presiding Justice, dissenting.

The majority bases its decision in this case on a definition of "approaches" which turns on a measurement of physical distance. Because I do not believe that distance is the, or even a, determinative factor in the resolution of this case, I must respectfully dissent.

In Todd v. F.W. Woolworth Co., 258 Ga. 194, 366 S.E.2d 674 (1988), we stated that the question of what constitutes an approach to premises has both factual and legal elements. Primary among those elements is the nature of the owner's relationship to the approach and rights in that approach; implicit in these considerations is the relationship between the business, the approach and the invitee's reason for using the approach. In this case, the motel is located where it is because of its proximity to the beach. The motel capitalizes on this proximity to attract invitees, and the invitees pay for access to and use of the beach. Access to the beach is controlled by the motel and is by way of the path at issue here, and the motel not only can foresee but expects that its invitees will use this path to reach the beach. Because the use of the path to the beach was an integral...