Lipham v. Federated Department Stores, Inc.

430 S.E.2d 590, 208 Ga. App. 385, 93 Fulton County D. Rep. 898, 1993 Ga. App. LEXIS 488
CourtCourt of Appeals of Georgia
DecidedMarch 3, 1993
DocketA92A1906
StatusPublished
Cited by4 cases

This text of 430 S.E.2d 590 (Lipham v. Federated Department Stores, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lipham v. Federated Department Stores, Inc., 430 S.E.2d 590, 208 Ga. App. 385, 93 Fulton County D. Rep. 898, 1993 Ga. App. LEXIS 488 (Ga. Ct. App. 1993).

Opinions

Birdsong, Presiding Judge.

This is an appeal from an order of the state court granting the motion for summary judgment of appellee Federated Department Stores, Inc. d/b/a Rich’s (Rich’s).

Appellant Minnie B. Lipham, a senior citizen, drove to Market Square Mall to take her usual walk. The only reason she went to the mall was to walk around the outside of the Rich’s building. Rich’s was not yet open that morning and appellant was not going to do any shopping at the mall. While walking, she observed a crowd of about 75 people approximately 50-60 feet away in the parking lot of Rich’s store. Being curious appellant left the sidewalk and walked toward the crowd. As she approached, appellant observed a roped-off area in which an organized, competitive-type game was taking place; the event was sponsored by Rich’s. People were running back and forth between participants inside this area. The crowd gathered around the outside of the roped-off. area was “just standing as a group” watching. Appellant conversed with no one in the crowd either before or after walking to the area. She stood directly in back of a male employee of appellee Rich’s. The employee was attending and participating in the Rich’s event. The employee turned around very quickly, unintentionally moving into appellant, knocking her to the ground and thereby injuring her. (There exists no evidence of record that the employee was aware of appellant’s presence behind him when he turned, nor has any evidence been introduced from which such fact could reasonably be inferred.)

Appellant brought a suit for damages alleging vicarious liability on the part of Rich’s, under the doctrine of respondeat superior, for the negligence of its employee. Rich’s moved for summary judgment on the grounds appellant was a licensee at the time of the injury and its employee did not wilfully or wantonly injure appellant, and that appellant assumed the risk when she walked to the activity area. [386]*386Held:

1. The defense of assumption of the risk has three separate elements. Moon v. Homeowners’ Assn. &c., 202 Ga. App. 821, 822 (1) (415 SE2d 654). Whether these elements have been established to the extent that no genuine issue of material fact remains thereto will ordinarily, as in this case, constitute a jury question and is not susceptible of summary adjudication. Thompson v. Crownover, 259 Ga. 126 (5) (381 SE2d 283). However, the question of assumption of risk does not arise unless there first exists a genuine issue of material fact regarding appellee’s liability to appellant for the alleged negligent conduct of appellee’s employee.

2. As a general principle of law, the legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm. Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693). However, Bradley, supra, does not create a new tort but, consistent with the broad provision of OCGA § 9-2-3, merely provides for a remedy consistent with the applicable, traditional tort principles of this state (see Bradley, supra at 202; Reddell v. Allen, 193 Ga. App. 102, 103 (1) (386 SE2d 735)). Thus, in Bradley, supra at 201, the Supreme Court clarified the general legal duty owed to the world as follows: “ ‘[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ ” (Emphasis supplied.) Id. at 201; accord Dupree v. Keller Indus., 199 Ga. App. 138, 142 (2) (404 SE2d 291). Bradley merely reaffirms the general legal duty to protect other humans against unreasonable risk of harm; it does not purport to set a legal standard applicable to each and every conceivable tortious situation.

Ellington v. Tolar Constr. Co., 237 Ga. 235 (227 SE2d 336), involving a suit for injuries sustained at a construction site by a laborer employed by a subcontractor against the general contractor, is distinguishable from this case.

The complaint in this case avers an alleged act of active negligence committed by an employee of the owner or occupier of the premises where the incident occurred against a third party on the premises. Accordingly, we must now establish appellant’s legal status on the premises at the time of the incident to determine the correct legal standard to apply in this case.

The test of status of third party as a licensee is well established by statute and case law. See generally OCGA § 51-3-2; Savage v. Flagler Co., 185 Ga. App. 334, 337 (2) (364 SE2d 52). Although appellant averred in her complaint that she was an invitee, she made the following uncontroverted admissions of fact in her deposition (see generally Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305); Pate v. Ga. Southern &c. R. Co., 196 Ga. App. 211, 212 [387]*387(395 SE2d 604)): She was walking around the outside of Rich’s before it was opened for business; she was merely using Rich’s sidewalk; the only reason she went to the mall and Rich’s was to walk outside; she was not going to do any shopping at the mall, and she spoke to no one either before or after voluntarily joining the crowd in the parking lot. These admissions have not been withdrawn and, even if they could be contradicted, no such evidence exists in this record. We are satisfied, based on the clear and palpable evidence of record, that appellant was as a matter of law on the premises at the time of the incident in the status of a mere licensee.

The legal standard applicable to active negligence cases involving a licensee was reaffirmed by this court in Wade v. Mitchell, 206 Ga. App. 265, 267 (424 SE2d 810). In Wade we reaffirmed that “the owner of the premises owes only a slightly higher duty to a licensee than to a trespasser. ‘He must not wantonly or wilfully injure the licensee; and since the presence of the licensee as a result of his license is at all times probable, some care must be used to prevent injuring him after his presence is known or reasonably should be anticipated.’ ” (Second emphasis supplied.) Wade, supra at Division 2(c). We further noted that “ ‘[t]he fundamental concept of this class of cases ... is of a liability only for wilful and wanton injury, but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises.’ ” Id. “ ‘[Thus] as to a licensee . . . “ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated” ’ ” to be within the range of a dangerous act or a hidden peril on one’s premises. Id. That is, “ ‘[a]fter the presence of the licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited.’ ” Id.

In this case, unlike the circumstances in Wade, supra, we find that there exists no evidence from which it can reasonably be inferred that appellant’s presence was known or should have been known. In any event, assuming arguendo her presence should have been known, as a matter of law,

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Bluebook (online)
430 S.E.2d 590, 208 Ga. App. 385, 93 Fulton County D. Rep. 898, 1993 Ga. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lipham-v-federated-department-stores-inc-gactapp-1993.