Howard v. Gram Corp.

602 S.E.2d 241, 268 Ga. App. 466, 2004 Fulton County D. Rep. 2453, 2004 Ga. App. LEXIS 950

• Court: Court of Appeals of Georgia
• Decided: July 13, 2004
• Docket: A04A0476
• Status: Published

Opinions

RUFFIN, Presiding Judge.

Mary Howard fell in a radio station’s lobby and fractured her hip. She sued The Gram Corporation (“Gram”), which owned the radio station, for damages. Gram moved for summary judgment, which the trial court granted. On appeal, Howard challenges this ruling. For reasons that follow, we affirm.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.¹ We review the evidence and record de novo, construing all reasonable conclusions and inferences in favor of the nonmovant.²

Viewed in this manner, the evidence showed that Howard’s adult daughter, Mariana Howard, was being interviewed at a local radio station. Howard accompanied her daughter to the event. According to Mariana, her mother had no other business at the radio station. Before the interview, Howard and her daughter waited in the lobby. Howard saw a sign that read “Watch Your Step” in the front of the lounge and thought that the sign referred to the hallway to the studio. She did not believe that the sign had anything to do with the lounge area. As Mariana was being led back to the studio area for the interview, Howard decided to move to the other end of the lounge area to be near a radio that was on a desk. Howard did not notice that the lounge floor had a step down into the area near the desk. She fell, fracturing her hip and injuring her head, shoulder, and back.

Howard sued Gram, alleging negligence. Gram moved for summary judgment, arguing that Howard was only a licensee and as such only entitled to recover for wilful and wanton acts of Gram with regard to a static condition. The court agreed and, finding no evidence that Gram acted wilfully or wantonly, granted Gram summary judgment. We find no error.

Howard’s status as either a licensee or an invitee determines the duty of care that Gram owed her.³ An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose.⁴ A licensee, on the other hand, is a person who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted to go on the premises merely for her own interests, convenience, or gratification.⁵ The generally “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 [her] presence of mutual benefit to both, ... or was for business with one other than the owner or occupier.”⁶

Here, we see no benefit to the radio by virtue of Howard’s visit. She was not required to drive her daughter to the interview, as the record demonstrates unequivocally that Mariana drove herself and her mother to the station. And Mariana admitted on deposition that her mother went to the station “just to be with” her and that she had “no other business ... at the radio station.” Under these circumstances, Howard is properly considered a licensee.⁷

As a general rule, an owner or occupier of land is liable to a licensee injured by a condition on the property

only if the owner (a) knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensee, and should expect the licensee will not discover or realize the danger; and (b) fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and risk involved.⁸

But “where the alleged negligence arises from a dangerous static condition on the premises, the duty remains not to injure the licensee wilfully or wantonly.”⁹ And “[i]t has long been the position of this court that the mere existence or maintenance of a difference in floor levels or of steps in a business building does not constitute negligence.”¹⁰ As it cannot be said that Gram wilfully or wantonly injured Howard by maintaining a floor that was not perfectly level, the trial court properly granted summary judgment in favor of Gram.¹¹

The dissent, however, concludes that the trial court erred in granting summary judgment. In reaching this conclusion, the dissent advocates expanding the longstanding definition of licensee in the State of Georgia to accommodate the modern reality that friends and family often accompany invitees to places of business. Such expansion is unwarranted, and the dissent’s reasoning is unpersuasive.

Pye v. Reagin,12 the case cited by the dissent, does not dictate a different result. In that case, a plaintiff sued a doctor’s office after she tripped and fell on a tree root between the parking lot and the building. The trial court granted summary judgment in favor of the defendant. Although this Court treated the plaintiff as an invitee, such treatment was not crucial to our analysis as we affirmed the trial court’s ruling on the basis that the plaintiff had equal knowledge of the static defect.¹³ In other words, that case did not expand an owner’s liability based upon a broad reading of the term “invitee.”

Moreover, the extra-jurisdictional cases cited by the dissent do not require a different result. In most of these cases, the injured party fell while in a retail establishment that was open to the public at large.¹⁴ And where such retail establishment sells goods to all comers, any person entering the premises occupies the status of invitee.¹⁵ Even if the injured party does not have a present intent to make a purchase upon entry, the existence of a possible economic exchange is of mutual benefit to both parties.¹⁶ Similarly, mutual benefit may be found where a parent takes a child to school or where a friend or family member drives an elderly patient to the hospital.

In this case, however, there is no evidence that the radio station benefitted by Howard’s decision to accompany her daughter to the interview. And, unlike retail establishments, it cannot reasonably be said that a radio station impliedly invites the public at large into its lobby. Under these circumstances, Howard falls squarely within the existing definition of licensee, and the trial court properly granted summary judgment in favor of Gram.

Judgment affirmed.

Smith, C. J., Andrews, P. J., Johnson, P. J., Blackburn, P. J., Eldridge, Ellington, Mikell and Adams, JJ., concur. Barnes, Miller and Phipps, JJ., dissent.

1 See OCGA§ 9-11-56 (c); Aldredge v. Symbas, 248 Ga. App. 578,579 (547SE2d295) (2001).

2 See Spear v. Calhoun, 261 Ga. App. 835 (584 SE2d 71) (2003); Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

3 See Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 799 (1) (a) (522 SE2d 739) (1999).

4 See OCGA§ 51-3-1.

5 See OCGA§ 51-3-2.

6 Moore-Sapp, supra. See also Restaura, Inc. v. Singleton, 216 Ga. App. 887 (1) (456 SE2d 219) (1995).

7 See Restaura, supra at 887-888 (1); Mut. Life Ins. Co. of New York v. Churchwell, 221 Ga. App. 312,314 (2) (471 SE2d 267) (1996); Venable v. Langford, 116 Ga. App. 257, 258-259 (2) (157 SE2d 34) (1967).

8 Hartley v. Macon Bacon Tune, Inc., 234 Ga. App. 815, 817 (507 SE2d 259) (1998).

9 Rice v. Elliott, 256 Ga. App. 87 (567 SE2d 721) (2002).

10 (Punctuation omitted.) Wilson v. Duncan, 211 Ga. App. 814 (440 SE2d 550) (1994).

11 See Rice, supra.

12 262 Ga. App. 490 (586 SE2d 5) (2003).

13 Id. at 491-492.

14 See Crane v. Smith, 144 P2d 356 (Cal. 1943) (grocery store); Farrier v. Levin, 176 Cal. App. 2d 791 (1959) (liquor and delicatessen store); Nave v. Hixenbaugh, 304 P2d 482 (Kan. 1956) (gas station). In the fourth case cited by the majority, Sisters of Charity of Cincinnati v. Duvelius, 173 NE 737, 740 (Ohio 1930), the plaintiff, a nurse who fell in a hospital, clearly comes within the existing Georgia definition of an invitee.

15 See OCGA § 51-3-1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”); Hicks v. M. H. A., Inc., 107 Ga. App. 290, 292 (2) (b) (129 SE2d 817) (1963) (plaintiff was invitee because defendants had an interest in her “visit, for the success of their shopping center venture largely depended] upon whether their tenants [did] a satisfactory volume of business”); Cf. Burrow v. K-Mart Corp., 166 Ga. App. 284, 286 (1) (304 SE2d 460) (1983) (“ ‘ “a corporation engaged in the retail mercantile business impliedly extends an invitation to the public to trade there” ’ ”).

16 See, e.g., Frankel v. Animan, 157 Ga. App. 26, 27 (276 SE2d 87) (1981) (monetary consideration not essential to invitee relationship).