Wojcik v. Windmill Lake Apartments, Inc. , 284 Ga. App. 766 ( 2007 )

Barnes, Chief Judge,

concurring specially.

Although I concur that the incident resulting in the death of Mr. Wojcik was not foreseeable and was not the result of the defendants’ negligence, I cannot concur in all that is said in the majority opinion because the evidence does not establish that Mr. Wojcik’s status was that of an invitee.

Decided March 9, 2007 Reconsideration denied April 4, 2007 Ralph E. Hughes, for appellants. Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Thomas J. Mihill, Moore, Ingram, Johnson & Steele, Robert D. Ingram, for appellees.

The majority applies the general rule regarding the duty owed by a landlord to protect tenants from attacks by third parties, but this was not an attack on a tenant. Mr. Wojcik was a pizza delivery man, who, apparently without the knowledge of the tenant, was lured to the vacant apartment by a guest of a tenant as part of the murderer’s scheme to rob Mr. Wojcik. The evidence does not show that the tenant expected to receive any benefit from Mr. Wojcik’s visit to the premises. Under this evidence, it is most unlikely that Mr. Wojcik would qualify as an invitee.

If the primary purpose of the visit is of mutual benefit to the tenant and guest, the legal status of the visitor is that of an invitee. Chatham v. Larkins, [134 Ga. App. 856, 857 (216 SE2d 677) (1975)]. However, a landlord is liable to one injured while visiting a tenant for his (the visitor’s) own personal advantage only for wilful or wanton injury to the visitor, a licensee. Jones v. Asa G. Candler, Inc., 22 Ga. App. 717, 720 (97 SE 112) (1918); Strickland v. ITT Rayonier, 162 Ga. App. 317 (291 SE2d 396) (1982).

Brown v. Clay, 166 Ga. App. 694 (305 SE2d 367) (1983). Further, guests of tenants, “those coming on the leased premises for business purposes beneficial to the tenant, and those doing business with him are there by his invitation and stand in his shoes insofar as they suffer injury due to the negligence of the owner or occupier of the premises.” Davis v. Garden Svcs., 155 Ga. App. 34, 35 (1) (270 SE2d 228) (1980).

Nevertheless, as no evidence shows that, regardless of his status, Mr. Wojcik’s death was foreseeable or was the result of Windmill Lake Apartments’ negligence, the trial court did not err by granting the motion for summary judgment.