Savage v. Flagler Co.
| Decision Date | 09 November 1987 |
| Docket Number | No. 74759,74759 |
| Citation | 185 Ga.App. 334,364 S.E.2d 52 |
| Parties | SAVAGE v. FLAGLER COMPANY et al. |
| Court | Georgia Court of Appeals |
Mike Treadaway, Marietta, Anthony J. McGinley, Atlanta, for appellant.
Michael J. Goldman, Lisa H. Ihns, Atlanta, for appellees.
Jonathan M. Engram, Atlanta, amicus curiae.
Summary Judgment--Wrongful Death--Duty to Licensee. The pertinent facts of this unfortunate incident show that in 1979-80 an entity known as Interstate North owned raw land adjacent to Windy Hill Road. The land was sold in 1980 to the Borel Restaurant Corporation, a wholly owned subsidiary of The Stouffer Corporation, for the purpose of building a restaurant to be called the Rusty Scupper. Borel/Stouffer engaged the services of D.E. Hill Engineer, Inc./Hill Fister Engineers, Inc. as the project engineer to draw necessary land preparation grading requirements to prepare the real estate for a restaurant site with appropriate parking area. Edmond Stevens/Edmond Stevens Associates was engaged as the project architect and designer. The Flagler Corporation was engaged as the contractor charged with construction of the restaurant and parking lot. Hill Fister Engineers drew plans for the parking lot to the north side of the restaurant site. The raw land upon which this project was to be completed was in effect a flat area with access from Windy Hill Road. On the north side, or front of the lot, there was a sharp decline in elevation denominated as a precipice, a cliff or drop-off. From the level land to the bottom of the decline was a distance of approximately 70 feet.
When Flagler drove stakes to commence the land preparation in accordance with the drawings of Hill Fister, Flagler determined the parameters of the parking lot on the north side extended out over the decline. Hill Fister had recommended that a retaining wall be built to retain necessary fill dirt to support the edge of the parking lot on the north side. However because the lot actually extended over the void of the decline, recommendations were obtained from the architect, Stevens. It was decided rather than to build a retaining wall at the north side of the lot, the parking lot would be slightly reduced in size and moved to the south. As a result no retaining wall was necessary and no fill dirt was required to support the completed parking lot.
At the north edge of the parking lot, Flagler constructed a curb in accordance with the engineering drawings to act as a boundary of the parking lot. Beyond the north edge of the curb extending to the precipice, there was a flat grassy strip ranging in width from a few feet to at least 16 feet. At the edge of the steep decline, undergrowth and trees grew prolifically, thus tending to so obscure the edge of the steep decline so that from the parking lot one was not aware that a steep decline existed a few feet beyond the edge of the parking lot.
It further appears that after the restaurant and parking lot had been completed by Flagler and inspected and accepted by Borel/Stouffer, Borel sold the underlying real estate and improvements to Krause who in turn apparently leased the restaurant business back to Borel/Stouffer for a period of 25 years. This lease was executed in July 1981.
On August 16, 1982, a group of employees from Kennestone hospital decided to rendezvous at the Rusty Scupper after they got off work at about 10:00 p.m. The Rusty Scupper had a two-for-one "happy hour" and a free sandwich-type supper that evening. This group included Ron Savage. Contrary to Ms. Savage's (the victim's mother's) contention, the evidence showed that the Rusty Scupper closed at about 2:00 a.m. on the morning of August 17. Prior to that time or as the restaurant was closing, the Kennestone group decided to go to another restaurant club to have further drinks and/or entertainment. There apparently were six persons in the group and they all loaded into one car to go to the new club. Sometime around 2:45-3:00 a.m., the group returned to the Rusty Scupper's parking lot to redeem the cars of the other members of the group. Everyone left except Ron Savage and a young woman. The evidence shows that the young woman believed the Rusty Scupper was closed as the parking lot lights were not burning and the restaurant appeared to be closed. Savage and the young woman stood on either side of Savage's car and talked over the top. After a few minutes, Savage excused himself to go to the "bathroom." Savage's companion saw him step over the curb on the north side of the lot, walk across the grass strip and enter "what [she] thought was the edge of the woods." After waiting for a few minutes and when Savage did not return, the young woman called out but Savage did not answer. After a call to the police, a search revealed Savage's body at the base of the precipice after falling over 70 feet and striking his head on a large boulder causing his death.
Savage's mother brought this wrongful death action against Krause the present owner, Hill Fister the land engineers, Stevens the architect-designer, Borel/Stouffer the restaurant owner and builder, Flagler the contractor-builder, Interstate North the original owner, and the restaurant itself. The court granted a motion to dismiss in favor of Interstate North and that action is not a part of this appeal. Krause, Borel/Stouffer and Flagler all moved for summary judgment which was granted by the trial court. It is the grant of summary judgment to these three defendants that forms the basis for the appeal filed in this case by Ms. Savage. Held:
1. Ms. Savage predicates her complaint upon the negligence of Krause in failing to correct an inherently dangerous defect in the land, i.e., a hidden peril; upon the negligence of Flagler in not providing a safety shield of some sort when recognizing the inherent danger in the precipice so close to the parking lot; and negligence of Borel/Stouffer in inviting guests to its establishment and exposing guests to a hidden peril without taking adequate precaution to correct the defect or warn the invitees of the peril.
Although the duties and responsibilities of appellees are related, they are distinguishable and different. Mullis v. Southern Co. Svcs., 250 Ga. 90, 92, 296 S.E.2d 579. Krause, Borel, and Stouffer are either owners or occupiers of the land and have the duty to exercise ordinary care to keep the premises safe for all invitees. OCGA § 51-3-1. Flagler was the general contractor and presumably constructed the premises in accordance with the plans and guidance of the architect. There is no allegation of negligent construction, only that the contractor was negligent in not providing a safety shield after constructing an obvious hazard.
2. We first will address the obligations of Krause, Borel and Stouffer. As they were either owners or occupiers of the realty, under OCGA § 51-3-1 they had the duty to exercise ordinary care to keep the premises safe for all invitees. However, the duty of an owner or occupier of land is entirely different as to a licensee. That obligation, under OCGA § 51-3-2 imposes liability only for wilful or wanton injury. The accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with one other than the owner or occupier. Brown v. Hall, 81 Ga.App. 874, 880, 60 S.E.2d 414; Pries v. Atlanta Enterprises, 66 Ga.App. 464, 467-468, 17 S.E.2d 902; Cook v. Southern R. Co., 53 Ga.App. 723, 725, 187 S.E. 274.
Savage first entered the premises of the Rusty Scupper at a time when the premises were open and availed himself of their services. Without question, Savage was an invitee during his first visit to the Rusty Scupper. It is equally clear that the services formerly tendered to Savage and his companions were withdrawn at closing time. Because those services were no longer being offered by the Rusty Scupper, Savage and some of his friends left at closing time and went to another establishment. When Savage and his friends returned about 45 minutes to one hour later, the Rusty Scupper was no longer open for business and there existed no express or implied invitation to use the facilities, and "one who uses the premises of a merchant at a time beyond that to which an implied invitation extends is a mere licensee." Armstrong v. Sundance Entertainment, 179 Ga.App. 635, 636, 347 S.E.2d 292; accord Clark v. Rich's, 114 Ga.App. 242(1), 150 S.E.2d 716. When Savage and his companions returned to the Rusty Scupper's parking lot at or about 3:00 a.m., his entry thereon was after closing hours, was not for the mutual benefit of the parties, but was for his sole convenience. He was a mere licensee, and the owners and occupiers of the premises owed him only the duty not to wilfully or wantonly injure him. Frankel v. Antman, 157 Ga.App. 26, 27, 276 S.E.2d 87.
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