Laurens v. Rush , 116 Ga. App. 65 ( 1967 )

Hall, Judge.

This case presents the question of the duty owed to a social guest of an owner or occupier of land—a difficult problem in semantics. While a rose is a rose, the invited are not always invitees. “ ‘Invitation’ is today a much discredited word, if only because a private social guest is invited, and yet is not in the legal sense an ‘invitee.’ ” Prosser, Business Visitors and Invitees, 26 Minn.- L. Rev. 573, 585.

“If plaintiff is a social guest in defendant’s home, the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited. [Ann. 25 ALR2d 598.] This classification is often invoked to deny the host’s liability for harm caused by a concealed danger that he did not know of, but which would have been discoverable by inspection.

. . . Such a limitation of duty probably conforms to people’s reasonable expectations in the ordinary host-guest situation. If the host is the kind of person who does not inspect and maintain his property on his own account, the guest scarcely expects an exception to be made on the occasion of his visit. In this country, moreover, where most social contact is among people who are on a similar economic footing, the host is usually in no better position than the guest to absorb or distribute the loss.” 2 Harper & James, The Law of Torts 1477, § 27.11. “He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with the possessor. The use of the premises is extended to him merely as a personal favor to him. The explanation usually given by the courts for the classification of social guests as licensees is that there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family.” 2 Restatement of the Law, Torts 2d 175, § 330.

In our opinion this case is controlled by Stanton v. Grubb, 114 Ga. App. 350 (2) (151 SE2d 237) which held: “The legal status of Mrs. Stanton as an invited social visitor in the home of the defendant was that of a licensee and not an invitee, no special mutuality of interest being alleged (Hall v. Capps, 52 Ga. App. 150 (3, 4) (182 SE 625); Martin v. Henson, 95 Ga. App. 715 (99 SE2d 251); Campbell v. Eubanks, 107 Ga. App. 527 (130 SE2d 832)), and since the petitions do not show that the defendant breached any legal duty which she owed to her in that capacity under Code § 105-402, the trial court did not err in dismissing the petitions on oral motions of the defendant.”

The test of “mutuality of interest” under Code § 105-402 is generally used in reference to a business in which the occupant is engaged or which he permits to be carried on there; it hhs no application in regard to a mere social guest. Hall v. Capps, 52 Ga. App. 150, supra. To hold otherwise would be to say that while a driver of an automobile owes no duty of ordinary care to a social guest as to active negligence, an owner or occupier of land owes a duty of ordinary care to a social guest as to static negligence. In our opinion, that won’t wash.

A licensee cannot recover by showing that the defendant was merely negligent, but must show that the defendant wilfully and wantonly injured her.

The trial court did not err in sustaining the defendant’s, renewed general demurrer to the petition as amended.

Judgment affirmed.

Eberhardt, J., concurs. Felton, C. J., concurs specially.