Winkler, Inc. v. Vilston, N.V.

• Decision Date: 20 November 1984
• Docket Number: No. 69311,69311
• Citation: 324 S.E.2d 542,172 Ga.App. 686
• Court: Georgia Court of Appeals
• Parties: WINKLER, INC. et al, v. VILSTON, N.V. et al.

Page 542

324 S.E.2d 542

172 Ga.App. 686

WINKLER, INC. et al, v. VILSTON, N.V. et al.

No. 69311.

Court of Appeals of Georgia.

Nov. 20, 1984.

E. Phil Duderwicz, Athens, I.J. Parkerson, Decatur, Kennedy R. Packer, Athens, for appellants.

Albert Sidney Johnson, Palmer H. Ansley, William R. Johnson, Robin N. Loeb, William M. Davidson, Atlanta, for appellees.

BANKE, Presiding Judge.

Winkler, Inc., operated a restaurant and lounge in a shopping center owned by Vilston, N.V., a Netherlands Antilles corporation. After patronizing the lounge one evening, Hubert M. Rocker was attacked by a person who had allegedly been ejected from the lounge earlier that evening for belligerent conduct. Rocker died as a result of the injuries he sustained during this incident. His parents brought this wrongful death action against Winkler, Inc., and several of its officers, including its president Kenneth R. Winkler, alleging that they had failed to exercise reasonable care to protect patrons of the lounge from such injuries. The defendants then filed a third-party complaint against Vilston, N.V., as well as its managing agent, Intershop HFA Management USA Company Agent, alleging that because the attack had occurred in a common area of the shopping center, the third-party defendants were liable to them in contribution as joint tortfeasors for their alleged negligence in failing "to make the premises safe as required by law." The third-party complaint was also grounded on allegations that the third-party defendants were contractually obligated under the terms of the lease agreement to indemnify Winkler by providing public liability insurance for injuries sustained in the common area. This appeal is from the trial court's grant of summary judgment to the third-party defendants. Held:

1. The trial court erred in granting summary judgment to the appellees with respect to the contribution claim. Although a defendant is not generally permitted to offer a substitute defendant by third-party complaint, a third-party complaint is nevertheless maintainable under OCGA § 9-11-14(a) against a joint tortfeasor for contribution. See Hyde v. Klar, 168 Ga.App. 64, 308 S.E.2d 190 (1983). See also Marchman & Sons v. Nelson, 251 Ga. 475, 306 S.E.2d 290 (1983). If appellants should be found liable to the plaintiffs for negligently failing to protect their son from the unruly conduct of another patron which commenced inside appellants' premises but continued in the common area controlled by appellees, and appellees should be determined to be contributorily negligent in failing to provide reasonable security for customers in the common area, then appellants would be entitled to contribution from the appellees. Accord Hyde v. Klar, supra.

"[I]n a motion for summary judgment by a defendant, the burden is on the movant to affirmatively negative plaintiff's claim and show plaintiff is not entitled to recover under any theory of the case. [Cit.]" Hall v. Skate Escape, 171 Ga.App. 178, 181, 319 S.E.2d 67 (1984). An owner or occupier of land has a duty to protect an invitee from injury caused by the misconduct of third persons "if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the...