Handiboe v. McCarthy

151 S.E.2d 905, 114 Ga. App. 541, 1966 Ga. App. LEXIS 840

• Court: Court of Appeals of Georgia
• Decided: September 28, 1966
• Docket: 42094
• Status: Published

Opinions

Fkankum, Judge.

1. “An implied invitation is one which is held to be extended by reason of the owner doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property is consistent with the intents and purposes of the owner. Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (116 SE 17). An invitation is implied where the entry on the premises is for a purpose which is, or is supposed to be, beneficial to the owner. Crossgrove v. Atlantic C. L. R. Co., 30 Ga. App. 462 (118 SE 694). A person is an invitee where, for purposes connected with the business conducted on the premises, he enters any place of business. . . Horton v. Harvey, 119 Ga. 219 (46 SE 70).” Coffer v. Bradshaw, 46 Ga. App. 143, 148 (167 SE 119). See also Anderson v. Cooper, 214 Ga. 164, 168 (104 SE2d 90). “A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification. . .” Code § 105-402. Applying the foregoing definitions, a 4-year-old child, though permitted “almost daily” for a period of more than 2 years to call upon and play with the 4-year-old son of the owner or occupant of real property, does not, in so doing, enter onto the premises for any purpose connected with the business of the owner or occupant or for any purpose beneficial to the owner or occupant, and, therefore, he does not, by virtue of such permissive play, even though known to the owner or occupant, enter onto such premises as an invitee of the owner or occupant of the premises, but is, as to such owner or occupant, merely a licensee. Leach v. Inman, 63 Ga. App. 790 (1, 2) (12 SE2d 103); Henderson v. Baird, 100 Ga. App. 627, 631 (1) (112 SE2d 221). The mere fact that such child is an infant of tender years and unable to appreciate the danger of a particular situation as readily as would an adult does not alter the relation of the parties nor render the owner or occupant liable to him where he otherwise would not be liable. Atlanta & W. P. R. Co. v. West, 121 Ga. 641 (49 SE 711, 67 ERA 701, 104 ASR 179). And see Ramsey v. Village of Piketon, 115 Ohio App. 153 (184 NE2d 482).

2. As to licensees no duty devolves upon the landowner or occupant to keep the premises up to any particular standard, and the owner generally is liable to such licensee only for wilful and wanton injury to him. Cook v. Southern R. Co., 53 Ga. App. 723, 724 (1) (187 SE 274); Code § 105-402. While it is true that the owner or occupant of property owes a duty to a licensee whose presence is known to him to exercise ordinary care to avoid injuring him, this duty does not arise with respect to a mere dangerous statical condition of the premises, and as to such the owner or occupant owes no greater duty to the licensee whose presence is known than to any other licensee, and this is, as stated above, merely not to wilfully or wantonly injure him. Henderson v. Baird, 100 Ga. App. 627, supra, and citations.

3. Accordingly, where it appears from the allegations of the petition that the plaintiff’s infant son had for a period of more than 2 years prior to the occurrence which caused his death visited the premises of the defendant for the purpose of playing with the defendant’s son, and that this custom was known to and acquiesced in by the defendant, and that on the day he died the plaintiff’s son was visiting with and playing with the defendant’s son and another neighborhood child in the defendant’s home which was in the sole charge of an adult female servant and employee of the defendant who alone had been left in charge of the defendant’s son and the other children there playing at the time, and where one or more doors leading from the defendant’s home to an enclosed yard had been left unlocked and where the children were permitted by the aforesaid servant to open the doors and go into the yard where there was a swimming pool containing in the deep end thereof about 3 feet of water and the bottom of which, due to an accumulation of leaves, moss, and other trash and scum, was slippery and slimy, and where the plaintiff’s son fell into the pool and was unable to pull himself therefrom and save himself because of the slippery and slimy condition of the bottom, no actionable negligence on the part of the defendant or his servant is shown by such allegations bearing any causal connection with the presence of the plaintiff’s child in the pool.

Argued June 7, 1966 Decided September 28, 1966 Rehearing denied November 2, 1966 Pierce, Banitz & Lee, John F. Banitz, Jr., Andrew J. Byan, III, for appellant. Bouhan, Lawrence, Williams & Levy, Frank W. Seiler, for appellee.

4. “As a general rule, where the injury is not due to the fault of the person sought to be charged, the fact that a person sees another who is injured does not, of itself, impose on him any legal obligation to afford relief or assistance, but he may have a strong moral and humanitarian obligation to do so.” 65 CJS 857, Negligence, § 63 (104). In Georgia this limitation on the liability of one for failure to give assistance has been positively stated. Thomas v. Williams, 105 Ga. App. 321, 326 (3) (124 SE2d 409). Therefore, under the allegations of the petition, the failure of the defendant’s servant to rescue the plaintiff’s child from the perilous situation afforded no cause of action to the plaintiff.

5. The trial court did not err in sustaining the defendant’s general demurrer and in dismissing the petition.

Judgment affirmed.

Parnell, J., concurs. Felton, C. J., concurs specially.