International Paper Realty Co. v. Bethune ( 1986 )

Gregory, Justice.

Del C. Bethune, as next friend for her son William Ramey, filed this action for damages against International Paper Realty Corporation (International Paper) and surveyors Robert Leake and W. E. Gilbert. Bethune alleged Ramey was injured when he fell on an iron surveying pin which Leake and Gilbert had put in place to mark the boundary between property owned by International Paper and third parties. Bethune maintained in her complaint that Ramey was playing upon public lands adjacent to those owned by International Paper at the time of the injury.

The defendants moved for summary judgment. The trial court granted the motions of Leake and Gilbert, but denied the motion of International Paper. The Court of Appeals affirmed both judgments. Intl. Paper Realty Co. v. Bethune, 177 Ga. App. 330 (339 SE2d 296) (1985). We granted International Paper’s petition for certiorari, and now affirm the judgment of the Court of Appeals.

Contrary to International Paper’s argument, this case does not turn on the issue of a landowner’s liability to invitees, licensees or trespassers who go upon his property and are injured there. (For an analysis of the landowner’s duties to these persons, see Restatement of the Law Second, Torts, §§ 328-350.) As the Court of Appeals pointed out, this case involves a claim against a landowner whose land is immediately adjacent to a public way. Such a landowner may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public way may, by accident or some force not their own fault, fall upon and be injured by the artificial condition. Hutson v. King, 95 Ga. 271 (22 SE 615) (1894); City Council of Augusta v. Dozier, 126 Ga. 524 (55 SE 234) (1906); Nashville, Chattanooga & St. L. R. Co. v. Cook, 177 Ga. 196 (170 SE 28) (1833). If an artificial condition exists under these circumstances, the landowner owes a duty of due care to guard, cover or protect it for the safety of those on the public way. Cox v. Greenfield, 50 Ga. App. 699 (179 SE 178) (1935); Ga. Power Co. v. Murray, 57 Ga. App. 141 (194 SE 403) (1937); Restatement of the Law Second, Torts, § 368. Furthermore, the owner of land so situated must take into account the tendency of children to deviate from a public way. Restatement of the Law Second, Torts, § 369.

Where the alleged artificial condition is a steel rod driven into the ground with some two inches protruding above ground, a jury must decide if it involves an unreasonable risk to persons situated such as the plaintiff, and whether defendant realized or should have realized that it involved such an unreasonable risk. Restatement of the Law Second, Torts, §§ 368, 369. Therefore, the Court of Appeals was correct in affirming the denial of International Paper’s motion for summary judgment.

Judgment affirmed.

All the Justices concur, except Marshall, C. J., Clarke, P. J., and Weltner, J., who dissent.