Balke v. Red Roof College Park Co. , 190 Ga. App. 779 ( 1989 )

Deen, Presiding Judge,

dissenting.

The majority opinion affirms the grant of summary judgment for the appellee motel on the basis that the appellant was injured on property actually owned by another entity, and for the appellee landscaper on the basis that there was no evidence that the median would have any pedestrian traffic. However, the contract between the two appellees specifically provided that the landscaper would “restrict traffic from lawn areas until grass is established. Erect signs and barriers if required.” That evidence was sufficient to create a jury question on the issue of foreseeability of pedestrian traffic; the parties had obviously contemplated such.

Decided February 22, 1989 Rehearing denied March 15, 1989 Fortson & White, A. Jack Hinton, Douglas R. Powell, for appellants. Smith, Gambrell & Russell, David A. Handley, for appellees.

The fact that another entity actually owned the median where the appellant fell and sustained her injury does not absolutely absolve the appellee motel from every possibility of liability. “[A]n owner or occupier of land has a duty under OCGA § 51-3-1 with regard to the approach to his premises circumscribed by his right in the approach. If his right in the approach is the fee then the duty under OCGA § 51-3-1 is the exercise of due care by one who has the rights of an owner of a fee. He has the widest latitude in the use of the approach and must exercise due care within that framework to keep the approach safe. If his right in the approach is an easement his duty is to use due care toward his invitees in the exercise of his rights under the easement. He has a more limited framework than the owner of a fee. His duty does not require him to do things not permitted under the easement. If the approach is a public way his duty under OCGA § 51-3-1 is to exercise due care within the confines of his right in the public way. His rights in the public way may be quite limited but nonetheless exist.” Todd v. F. W. Woolworth Co., 258 Ga. 194, 196 (366 SE2d 674) (1988).

The evidence supported a finding that the appellee motel utilized the median as an approach, and benefited from that use. Its right in the approach may not have reached the level of easement, but that was not necessary under Todd v. F. W. Woolworth Co., supra. The trial court evidently concluded otherwise, and for that reason granting summary judgment was inappropriate.

Accordingly, I must respectfully dissent.