Warner v. Arnold

• Court: Georgia Court of Appeals
• Writing for the Court: STOLZ; EBERHARDT, P.J., and DEEN
• Citation: Warner v. Arnold, 133 Ga.App. 174, 210 S.E.2d 350 (Ga. App. 1974)
• Decision Date: 15 October 1974
• Docket Number: No. 49457,No. 2,49457,2
• Parties: Clinton L. WARNER v. Bobbie L. ARNOLD et al

Page 350

210 S.E.2d 350

133 Ga.App. 174

Clinton L. WARNER v. Bobbie L. ARNOLD et al.

No. 49457.

Court of Appeals of Georgia, Division No. 2.

Oct. 15, 1974.

Rehearing Denied Oct. 30, 1974.

Greer, Pollock & Klosik, Kenneth C. Pollock, Atlanta, for appellant.

Scheer & Elsner, Robert A. Elsner, Atlanta, for appellees.

Syllabus Opinion by the Court

STOLZ, Judge.

On or about June 4, 1972, a burglar broke into an apartment rented and occupied by Bobbie Arnold and Mildred L. Arnold (plaintiffs) and set a fire which caused damage to certain items of personal property owned by Mr. and Mrs. Arnold located in the apartment. At the time of the break-in and fire, the apartment building was owned by Dr. Clinton L. Warner (appellant), who had purchased it in 1968. At the time of the purchase of the apartment by Dr. Warner, Lottie Watkins Enterprises, Inc. was managing it for the previous owner and continued to do so for Dr. Warner under an oral agreement. This oral agreement provided that Lottie Watkins Enterprises would take care of routine maintenance and repairs, collect rents, pay the bank note, water and security light bill. Dr. Warner paid a 5% commission on all rents collected for these services. Evidence showed that, while minor repairs and maintenance could be accomplished without consulting the owner, any major work was done only after owner approval. As an example, the installation of a security light at the rear of the apartment building was done only after obtaining owner approval. This item involved an expenditure of $4.62. The owner paid separately for all repairs, maintenance and improvements. By deposition, plaintiff Mildred Arnold testified that, as a result of numerous break-ins at other apartments in the building and observing other tenants open the doors to their apartments with a knife or sharp instrument, she called Lottie Watkins Enterprises, Inc., in January or February, 1972, and requested an additional lock for the apartment door. At the time, plaintiff Mrs. Arnold was advised that another lock could be put on the door for $12 or $14. After ordering the $12 lock, said plaintiff was told that a man would be sent right out to install the lock. This was not done. In late February or early March, 1972, plaintiff Bobbie Arnold called Lottie Watkins Enterprises about the lock, but no response was forthcoming. The break-in and fire, with resulting damage, occurred on June 4, 1972.

Defendant Dr. Warner moved for summary judgment and now appeals from its denial via certificate for immediate review.

The basis of the appeal is that (1) Lottie Watkins Enterprises, Inc. was an independent contractor and hence the principal would not be liable for the negligent omission; (2) the intervening criminal act was not foreseeable by the owner and was itself the proximate cause of the plaintiffs' damages. Held:

1. Motions for summary judgment are granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Code Ann. § 81A-156(c) (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238). 'The party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence.' Holland v. Sanfax Corp., 106 Ga.App. 1, 5, 126 S.E.2d 442, 445.

'The test to be applied in determining the relationship of the parties is whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract. (citing case) 'The employer is liable for the negligence of the contractor . . . If the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relations of master and servant . . ..' (Code § 105-502).' Greenbaum v. Brooks, 110 Ga.App. 661, 664, 139 S.E.2d 432, 434, and cits.; Golosh v. Cherokee Cab Co., 226 Ga. 636, 176 S.E.2d 925; Mitchem v. Shearman Concrete Pipe Co., 45 Ga.App. 809(1), 165 S.E. 889.

Applying the foregoing principles to the facts in the case at bar, we must conclude that the relationship between Dr. Warner and Lottie Watkins Enterprises, Inc., presents a factual question for the jury to determine.

2. Generally, where there has intervened between the defendant's negligence and the injury an independent, illegal act of a third person producing the injury, and without which it would not have occurred, such independent criminal act should be treated as the proximate cause, insulating and excluding the negligence of the defendant. See Andrews v. Kinsel, 114 Ga. 390(2), 40 S.E. 300, 88 Am.St.Rep. 25; Belding v. Johnson, 86 Ga. 177, 12 S.E. 304, 11 LRA 53; Bowers v. Southern R. Co., 10 Ga.App. 367(3), 373, 73 S.E. 677; Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 99 S.E.2d 209; Henderson v. Dade Coal Co., 100 Ga. 568, 28 S.E. 251, 40 LRA 95; Daigrepont v. Teche Greyhound Lines, Inc., 189 Ga. 601, 605, 7 S.E.2d 174, 127 ALR 217; Rivers v. Weems, 208 Ga. 783, 784, 69 S.E.2d 756; Gallovitch v. Ellis, 55 Ga.App. 780, 191 S.E. 384.

However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed. Williams v. Grier, 196 Ga. 327, 338, 26 S.E.2d 698 and cits.; Southern R. Co. v. Webb, 116 Ga. 152(1), 42 S.E. 395, 59 LRA 109. 'So far as scope of duty (or, as some courts put it, the relation of proximate cause) is concerned, it should make no difference whether the intervening actor is negligent or intentional, or criminal. Even criminal conduct by others is often reasonably to be anticipated.' Harper & James, The Law of Torts, Vol. 2, § 20.5, p. 1144. Thus, if a person leaves a borrowed car on the streets of almost any city with the doors unlocked and key in the ignition, that person is negligent (at least toward the owner) because of the very likelihood of theft. In Hines v. Garrett, 131 Va. 125, 108 S.E. 690, the railroad which negligently carried an 18 or 19-year-old girl past her destination and required her to leave the train at a notoriously dangerous neighborhood, was held liable in damages for the girl's rape while walking back to her destination (case reversed on other grounds). See also Brauer v. New York Central & H.R.R. Co., 91 N.J.L. 190, 103 A. 166. In Mozer v. Semenza, 177 So.2d 880, the Florida Court of Appeals affirmed a verdict in favor of a guest against the hotel owner where damages resulted from a fire caused by an arsonist. Evidence showed that the hotel owner had been warned that the building's unenclosed stairwell constituted a hazardous condition, but did nothing to correct...