McDonald v

West Point Food Mart, Inc., 332 Ga. App. 753, 774 S.E.2d 774 (2015). Owner or occupier of land is liable for failure to warn invitees of dangers or defects in such premises or instrumentalities, of which the owner or occupier knew or of which it was the owner’s or occupier’s duty to know in the exercise of ordinary care. Fuller v. Louis Steyerman & Sons, 46 Ga. App. 830, 169 S.E. 508 (1933); Camp v. Curry-Arrington Co., 49 Ga. App. 594, 176 S.E. 49 (1934); Tybee Amusement Co. v. Odum, 51 Ga. App. 1, 179 S.E. 415 (1935); Mortgage Comm’n Servicing Corp. v. Brock, 60 Ga. App. 695, 4 S.E.2d 669 (1939); Freeman v. Levy, 60 Ga. App. 861, 5 S.E.2d 61 (1939); Sheffield Co. v. Phillips, 69 Ga. App. 41, 24 S.E.2d 834 (1943); Indian Springs Swimming Pool Corp. v. Maddox, 70 Ga. App. 842, 29 S.E.2d 724 (1944); Brown v. Hall, 81 Ga. App. 874, 60 S.E.2d 414 (1950); Rothberg v. Bradley, 85 Ga. App. 477, 69 S.E.2d 293 (1952); Goldsmith v. Hazelwood, 93 Ga. App. 466, 92 S.E.2d 48 (1956); Jones v. West End Theatre Co., 94 Ga. App. 299, 94 S.E.2d 135 (1956); Ward v. VFW, Post 2588, 109 Ga. App. 563, 136 S.E.2d 481 (1964); Sutton v. Sutton, 145 Ga. App. 22, 243 S.E.2d 310 (1978); Atkins v. Tri-Cities Steel, Inc., 166 Ga. App. 349, 304 S.E.2d 409 (1983). Duty to warn invitees applies to latent as well as patent defects. — The duty of the owner or occupier of premises to warn an invitee of dangers or defects of which the owner or occupier knew or in the exercise of ordinary care it was the owner’s or occupier’s duty to know applies to a latent peril as well as to a patent one. However, the actual result of an act or 51-3-1 omission is not controlling in determining whether or not it was negligent, nor is the duty of the person doing or omitting to do an act to be estimated by what, after an injury has occurred, then first appears to be a proper precaution, but the question of negligence must be determined according to what should reasonably have been anticipated, in the exercise of ordinary care, as likely to happen. Swanson v. Choate, 108 Ga. App. 152, 132 S.E.2d 246 (1963). Although invitee not liable as matter of law for failure to observe patent defect when owner lacked ordinary care to keep premises safe. — When the owner or occupier of premises fails to exercise ordinary care in keeping reasonably safe such premises for the use of those who go upon the premises as invitees, and when such an invitee is injured by a patent defect in such premises of which the injured party has no actual knowledge, it cannot be held as a matter of law that such injured party was lacking in ordinary care in failing to observe the defect in time to avoid the injury. Bray v. Barrett, 84 Ga. App. 114, 65 S.E.2d 612 (1951); Willis v. Byrd, 116 Ga. App. 555, 158 S.E.2d 458 (1967). Proprietor under no duty to warn when invitee knows danger and assumes risk. — The basis of a proprietor’s liability is the proprietor’s superior knowledge and if the proprietor’s invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has so much knowledge as the proprietor does and then by voluntarily acting, in view of the invitee’s knowledge, assumes the risks and dangers incident to the known condition. Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 56 S.E.2d 828 (1949); Rogers v. Atlanta Enters., Inc., 89 Ga. App. 903, 81 S.E.2d 721 (1954); Tatum v. Clemones, 105 Ga. App. 221, 124 S.E.2d 425 (1962); Lincoln v. Wilcox, 111 Ga. App. 365, 141 S.E.2d 765 (1965); Hodge v. United States, 310 F. Supp. 1090 (M.D. Ga. 1969), aff ’d, 424 F.2d 545 (5th Cir. 1970); Ramsey v. Mercer, 142 Ga. App. 827, 237 S.E.2d 450 (1977); Pound v. Augusta Nat’l, Inc., 158 Ga. App. 166, 279 S.E.2d 342 (1981); Gyles, Inc. v. Turner, 184 Ga. App. 376, 360 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND 361 S.E.2d 538 (1987); Chisholm v. Fulton Supply Co., 184 Ga. App. 378, 361 S.E.2d 540 (1987). Babysitter, who was an invitee in premises liability action based upon the babysitter’s slipping and falling on a coin on the floor, could not recover because the babysitter’s knowledge of the dangerous condition of the coins being on the floor of the property was at least that of the property owner. Ballard v. Burnham, 256 Ga. App. 531, 568 S.E.2d 743 (2002). Because a customer seeking damages from a fall caused by tripping over a gas hose at a gas station admitted to having actual knowledge of the hazard at issue, the hose, the gas station did not have superior knowledge of the hazard, and the customer was unable to establish this element of the claim; thus, summary judgment in favor of the gas station was required. Right Stuff Food Stores, Inc. v. Gilchrist, 279 Ga. App. 784, 632 S.E.2d 405 (2006). Victim’s estate, as a matter of law, did not show that the owner violated the owner’s duty of care under O.C.G.A. § 51-3-1 at the time the victim, who lived with the owner and the owner’s son, who was the boyfriend, was shot by the boyfriend; the owner did not know more about the owner’s son’s violent designs on the victim than the victim knew, as the victim was with the boyfriend at the time the boyfriend was apprehended as armed and dangerous, friends of the couple noted the boyfriend’s abusive treatment of the victim, and there was no evidence that the boyfriend had previously committed an assault or another such crime on or near the owner’s property or against any member of the household. Hembree v. Spivey, 281 Ga. App. 693, 637 S.E.2d 94 (2006). Because a party injured in a fall admitted to having actual knowledge not only of the alleged hazard which caused the fall, but of the specific danger the hazard presented, and as a result, appreciated the danger involved, the trial court erred in denying summary judgment to the premises owner as to the issue of liability, given that based on the foregoing, the party should have avoided any injury in the exercise of ordinary care. Callaway Gardens Resort, Inc. v. Bierman, 290 Ga. App. 111, 658 S.E.2d 895 (2008). 51-3-1 Summary judgment to property owners in a widow’s action seeking damages for her husband’s death as a result of a fall on the owners’ property was warranted because the owners did not breach the owners’ duty of care to the husband, who was an independent contractor as well as an invitee; the husband’s fall from a ladder while cutting tree limbs was an ordinary danger associated with that task, of which the husband assumed the risk. Glenn v. Gibbs, 323 Ga. App. 18, 746 S.E.2d 658 (2013). There is no duty to warn against obvious or patent dangers which may be observed and avoided by exercise of ordinary care. Georgia Farmers’ Mkt. Auth. v. Dabbs, 150 Ga. App. 15, 256 S.E.2d 613 (1979). Person is not expected to foresee and warn against dangers which are not reasonably expected, and which would not occur except under exceptional circumstances or from unexpected acts of the person injured. Sutton v. Sutton, 145 Ga. App. 22, 243 S.E.2d 310 (1978). When an instrumentality is put to a use not intended, the owner or person in control is not liable for the resulting injuries unless such person knew or should have known that it would be diverted to such use. Savannah E. Side Corp. v. Robinson, 102 Ga. App. 426, 116 S.E.2d 613 (1960). Owner is liable for injury if owner had either actual or constructive knowledge of defect prior to the time injury occurred. Farahmand v. Local Properties, Inc., 88 F.R.D. 80 (N.D. Ga. 1980). Since the homeowner had no actual knowledge of the construction defect, and the homeowner established a lack of actionable constructive knowledge by demonstrating that the homeowner was incapable of discovering the defect by means of reasonable inspection, the homeowner has established as a matter of law that the homeowner discharged the duty of ordinary care owed to the invitee and summary adjudication in the homeowner’s favor was authorized. Barksdale v. Nuwar, 203 Ga. App. 184, 416 S.E.2d 546 (1992). No liability when invitee fails to show owner’s actual or constructive knowledge. — In a premises liability 361 General Consideration (Cont’d) 3. Duty Owed to Invitee by Owner/ Occupier or Proprietor (Cont’d) action filed by a guest of a property owner, because the guest failed to show that the owner had any actual or constructive knowledge of the alleged hazard that allegedly caused the guest’s injuries, specifically, a hole in an otherwise flat, grassy area of the owner’s yard, the court properly granted the owner summary judgment. Thomas v. Deason, 289 Ga. App. 753, 658 S.E.2d 165 (2008). Premises owner and a company that provided maintenance services for the premises were not liable for personal injuries sustained when an invitee fell in a hidden hole on a grassy median separating two parking lots in a shopping center because there was no evidence that the owner and maintenance company, which conducted regular inspections of the property, had actual or constructive knowledge of the hole. Witt v. Ben Carter Props., LLC, 303 Ga. App. 107, 692 S.E.2d 749 (2010). Premises owner was not liable for personal injuries sustained when a pull-down staircase used to access the premises’ attic detached while a contractor was using it; the owner had no knowledge of any defect in the premises causing the accident, and any such defect was not discoverable by a reasonable inspection in the exercise of ordinary care. Ferguson v. Premier Homes, Inc., 303 Ga. App. 614, 695 S.E.2d 56 (2010). Assuming that the plaintiff prison visitor was an invitee, the great weight of the evidence demanded a conclusion that defendant United States conformed to the standard of care required when visitors entered the premises. The plaintiff introduced no evidence of the defendant’s actual knowledge of any problem with water on the floor or the brightness of the lights in the bathroom where the plaintiff fell, and the plaintiff failed to show constructive knowledge because the alleged yellowish substance was not on the floor near the toilet long enough for the defendant in the exercise of reasonable care to have discovered the substance, the defendant’s reasonable inspection procedure would 51-3-1 have negated any constructive knowledge imputed to the defendant, and the substantial weight of credible evidence required a conclusion that the lighting was more than bright enough to meet the standard of care. Tobar v. United States, 696 F. Supp. 2d 1373 (S.D. Ga. Sept. 21, 2009). Trial court erred in denying an employer’s motion for summary judgment in a guest’s action to recover damages for injuries the guest sustained when an employee and an unidentified person assaulted the guest at a private party because the guest failed to come forward with evidence from which a jury could conclude that the employer had knowledge of circumstances that would lead a reasonable person to anticipate a criminal assault at the party and that the employer had more knowledge of the possibility of such an assault than the guest had; there was no evidence that the employer had any knowledge that would have indicated the employee or any other partygoer had a propensity for violence, and there was no evidence that the employer had knowledge that violence had broken out at any similar party or gathering in the area. B-T Two, Inc. v. Bennett, 307 Ga. App. 649, 706 S.E.2d 87 (2011). Two restaurant owners were properly granted summary judgment in a suit based on O.C.G.A. § 51-3-1 after an invitee was physically attacked by two sons of one of the owners as the owners could not have reasonably foreseen or prevented the attack since there had been no previous attacks and neither had knowledge of the attack to have reasonably foreseen or prevented the attack. Carter v. Riggins, 323 Ga. App. 747, 748 S.E.2d 117 (2013). Summary judgment for a restaurant in a slip and fall case was proper and was affirmed since there was no showing that the restaurant had actual or constructive knowledge of the grease which allegedly caused the slip and fall that was superior to that of the injured person; an inspection by the restaurant manager only 5 to 10 minutes before the incident was sufficient, as a matter of law, to establish that the restaurant exercised ordinary care under O.C.G.A. § 51-3-1 to 362 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND inspect the premises and keep safe. Markham v. Schuster’s Enters., Inc., 268 Ga. App. 313, 601 S.E.2d 712 (2004). In a case brought by an injured person against a restaurant, seeking damages arising from the injured person’s slip and fall in a restroom in the restaurant, summary judgment for the restaurant was reversed; the restaurant failed to show that the restaurant lacked superior knowledge of the water condition in the restroom since the restaurant knew that a toilet in an adjacent restroom had overflown onto the floor, a restaurant employee had pushed water from the adjoining restroom into the restroom at issue, the restaurant was notified by the injured person’s sister that there was water everywhere, the sister’s warning to the injured person stopped short of expressly extending to the inside of the restroom, and there was no warning cone placed at either the door of or inside the restroom in question. Belcher v. Ky. Fried Chicken Corp., 266 Ga. App. 556, 597 S.E.2d 604 (2004). Rules governing land proprietor’s duty to an invitee presuppose that possessor knows of condition and has no reason to believe that the proprietor’s invitees will discover the condition or realize the risk involved therein. Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 56 S.E.2d 828 (1949); Rogers v. Atlanta Enters., Inc., 89 Ga. App. 903, 81 S.E.2d 721 (1954); Jones v. West End Theatre Co., 94 Ga. App. 299, 94 S.E.2d 135 (1956); Hodge v. United States, 310 F. Supp. 1090 (M.D. Ga. 1969), aff ’d, 424 F.2d 545 (5th Cir. 1970); Ramsey v. Mercer, 142 Ga. App. 827, 237 S.E.2d 450 (1977); Pound v. Augusta Nat’l, Inc., 158 Ga. App. 166, 279 S.E.2d 342 (1981). The liability of a proprietor which results from failure to keep the premises safe always depends on notice of the danger except when notice is presumed, as in cases of defective construction. Veterans Org. of Fort Oglethorpe, Ga., Inc. v. Potter, 111 Ga. App. 201, 141 S.E.2d 230 (1965). Notice may be actual or constructive, but, if the latter, it must be shown to have existed for a length of time, or under such circumstances as to put the owner of the building on notice before the owner will be liable for result- 51-3-1 ing injuries. Fincher v. Fox, 107 Ga. App. 695, 131 S.E.2d 651 (1963). When the defendant owes to the plaintiff a duty to exercise care to avoid injuring the plaintiff, the defendant will be charged with constructive knowledge of the existence of a defect or of a defective condition existing on the premises within the defendant’s control which proximately causes the plaintiff ’s injuries. Rockmart Bank v. Hall, 114 Ga. App. 284, 151 S.E.2d 232 (1966). Constructive knowledge may be based on a showing that a proprietor failed to exercise reasonable care in inspecting and keeping the proprietor’s premises safe over a reasonable period of time, during which a dangerous condition was allowed to exist. Dillon v. Grand Union Co., 167 Ga. App. 381, 306 S.E.2d 670 (1983). Constructive knowledge of dangerous condition. — Constructive knowledge of a dangerous condition may be based either on evidence that the dangerous condition lasted so long that the defendant should have discovered the condition, or on evidence that an employee of the defendant was in the immediate vicinity and could have easily seen the problem. Herrin v. Peeches Neighborhood Grill & Bar, Inc., 235 Ga. App. 528, 509 S.E.2d 103 (1998). Summary judgment was properly granted because the victim failed to show that the restaurant had constructive knowledge of any allegedly inadequate lighting. The victim deposed that the victim could not recall the lighting conditions in the parking lot, whereas the restaurant managers testified that the lights were working on the night in question as indicated in daily maintenance logs. Bonner v. Southern Rest. Group, Inc., 271 Ga. App. 497, 610 S.E.2d 129 (2005). In a slip and fall case filed by a retailer’s patron alleging a breach of the retailer’s duty to keep the retailer’s premises reasonably safe, the trial court properly granted summary judgment to the retailer on the issue of whether the retailer’s nearby employees were in a position to discover the hazard on which the patron slipped, specifically a grape on the floor; however, in the absence of clear evidence 363 General Consideration (Cont’d) 3. Duty Owed to Invitee by Owner/ Occupier or Proprietor (Cont’d) of how long the grape was present on the floor, and in the absence of evidence that the retailer actually carried out the retailer’s inspection procedures, the retailer could not show as a matter of law that the retailer lacked constructive knowledge of the hazard which caused the patron’s fall. Blocker v. Wal-Mart Stores, Inc., 287 Ga. App. 588, 651 S.E.2d 845 (2007). There are two different classes of cases which may be based on constructive knowledge. The first is that type where liability of the owner is based on the fact that an employee of the owner was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition, which requires that the defendant had been afforded a reasonable time within which to inspect and remove the hazard. Winn-Dixie Stores, Inc. v. Hardy, 138 Ga. App. 342, 226 S.E.2d 142 (1976). In case of defective construction, notice to landlord or occupier is conclusively presumed. Tybee Amusement Co. v. Odum, 51 Ga. App. 1, 179 S.E. 415 (1935). Prior accident as notice. — When evidence of a prior similar accident tends to show the condition and knowledge of that condition, the evidence is admissible; all that is required is that the prior accident be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated accident. Pembrook Mgt., Inc. v. Cossaboon, 157 Ga. App. 675, 278 S.E.2d 100 (1981). Approach to premises. — An owner or occupier of land has a duty under O.C.G.A. § 51-3-1 with regard to the approach to the owner’s or occupier’s premises circumscribed by the owner’s or occupier’s right in the approach. Todd v. F.W. Woolworth Co., 258 Ga. 194, 366 S.E.2d 674 (1988). If the owner’s right in the approach is the fee, the owner’s duty is the exercise of 51-3-1 due care by one who has the rights of an owner of a fee. The owner has the widest latitude in the use of the approach and must exercise due care within that framework to keep the approach safe. Todd v. F.W. Woolworth Co., 258 Ga. 194, 366 S.E.2d 674 (1988). If the owner’s right in the approach is an easement, the owner’s duty is to use due care towards the invitees in the exercise of the owner’s rights under the easement. The owner has a more limited framework than the owner of a fee. The owner’s duty does not require the owner to do things not permitted under the easement. Todd v. F.W. Woolworth Co., 258 Ga. 194, 366 S.E.2d 674 (1988). If the approach is a public way, the owner’s duty is to exercise due care within the confines of the owner’s right in the public way. The owner’s rights in the public way may be quite limited but nonetheless exist. Todd v. F.W. Woolworth Co., 258 Ga. 194, 366 S.E.2d 674 (1988). The word ‘‘approaches’’ is construed to mean that property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon the owner’s or occupier’s premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended. By ‘‘contiguous, adjacent to, and touching,’’ the legislature meant property within the last few steps taken by invitees, as opposed to ‘‘mere pedestrians,’’ as they enter or exit the premises. Motel Properties, Inc. v. Miller, 263 Ga. 484, 436 S.E.2d 196 (1993). Under certain circumstances, noncontiguous property can be deemed an ‘‘approach’’ because the landowner extended the approach to the landowner’s premises by some positive action on the landowner’s part, such as constructing a sidewalk, ramp, or other direct approach; such an exception is based on the fact that the owner or occupier of land, for the owner’s or occupier’s own particular benefit, has 364 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND affirmatively exerted control over a public way or another’s property. Motel Properties, Inc. v. Miller, 263 Ga. 484, 436 S.E.2d 196 (1993). Invitee, who was injured in a fall on rocks placed along the shoreline approximately 196 feet away from premises controlled by a motel, was not injured on an ‘‘approach’’ to the motel’s premises so as to impose on the motel any duty to exercise ordinary care on the invitee’s behalf. Motel Properties, Inc. v. Miller, 263 Ga. 484, 436 S.E.2d 196 (1993). When the portion of a grass strip where the plaintiff fell was not contiguous and was more than a few steps from the hotel, the property did not meet the definition of ‘‘approach’’. Rischack v. City of Perry, 223 Ga. App. 856, 479 S.E.2d 163 (1996). A resort was not liable to two injured guests in a premises liability action, and therefore was granted summary judgment since the stairs from which the guests fell leading to a beach area were not owned by the resort, and the guests failed to show that the steps were part of the approach to the resort or in any manner maintained by the resort. Harris v. Inn of Lake City, 285 Ga. App. 521, 647 S.E.2d 277 (2007). Because the trial court correctly determined that the parking lot in which a customer fell was owned and maintained by the grocery store’s landlord, not by the grocery store, and was not an ‘‘approach’’ to the premises for purposes of O.C.G.A. § 51-3-1, the grocery store was properly granted summary judgment as to the issue of liability in a customer’s personal injury suit filed against the store. Robinson v. Kroger Co., 284 Ga. App. 488, 644 S.E.2d 316 (2007). Bus stop where the amusement park customer was attacked was located on an approach to the amusement park’s premises because the park took positive steps to exert control over that area, invited the park’s customers to use the bus stop, and appropriated the bus stop solely for the park’s benefit. Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350, 780 S.E.2d 796 (2015). Injury on handicapped ramp. — Because the record was devoid of any evidence to show that a handicap ramp was improperly designed or constructed, pur- 51-3-1 suant to O.C.G.A. § 51-3-1, a company had no duty to an invitee; consequently, the company was entitled to summary judgment in the invitee’s action for slip and fall damages. Gibson v. Symbion, Inc., 277 Ga. App. 721, 627 S.E.2d 84 (2006). Rainwater on floor of parking deck. — In a slip and fall case, summary judgment was properly granted to the defendant as there was no evidence that the rainwater hazard on the defendant’s premises created an unreasonable risk of harm because the plaintiff slipped and fell in rainwater on the floor of the parking deck in a location where the plaintiff should have reasonably expected to find rainwater present; the plaintiff produced no evidence that the accumulation of rainwater in that area was unusual, abnormal, or unexpected given the location of the walkway and the weather conditions; and the defendant produced evidence that no unusual puddling or accumulation of water occurred in the parking deck, which was constructed with a slope to promote drainage and prevent puddling. Diaz v. MARTA, No. A17A0182, 2017 Ga. App. LEXIS 155 (Mar. 24, 2017). Evidence of a prior substantially similar incident is admissible to show the existence of a dangerous condition and knowledge of that condition so long as the prior incident was sufficient to attract the owner’s attention to the alleged dangerous condition which resulted in the litigated incident. McCoy v. Gay, 165 Ga. App. 590, 302 S.E.2d 130 (1983). No liability for intervening illegal act. — Ordinarily, even when the proprietor’s negligence is shown, the properietor would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. However, the above rule has been held inapplicable if the defendant property owner had reasonable grounds for apprehending that such criminal act would be committed. Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241, 414 S.E.2d 265 (1991), cert. denied, 202 Ga. App. 905, 414 S.E.2d 265 (1992). Evidence of criminal activity. — Proof of two prior crimes at a location on the defendant’s premises other than the asserted ‘‘dangerous’’ parking lot in which 365 General Consideration (Cont’d) 3. Duty Owed to Invitee by Owner/ Occupier or Proprietor (Cont’d) the plaintiff was assaulted had no relevancy or probative value with regard to the defendant’s knowledge of that ‘‘dangerous condition.’’ McCoy v. Gay, 165 Ga. App. 590, 302 S.E.2d 130 (1983); Nalle v. Quality Inn, Inc., 183 Ga. App. 119, 358 S.E.2d 281 (1987). While a proprietor would ordinarily be insulated from liability arising from the proprietor’s own negligence by the intervention of an illegal act which is the proximate cause of another’s injury, this exception is inapplicable if the defendant-proprietor had reasonable grounds for apprehending that a criminal act would be committed. Arnold v. Athens Newspapers, Inc., 173 Ga. App. 735, 327 S.E.2d 845 (1985); Donaldson v. Olympic Health Spa, Inc., 175 Ga. App. 258, 333 S.E.2d 98 (1985). If the proprietor has reason to anticipate a criminal act, the proprietor then has a duty to exercise ordinary care to guard against injury from dangerous characters. Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Evidence of criminal activity at restaurant. — Evidence was sufficient to give rise to a triable issue as to whether a restaurant proprietor had a duty to exercise ordinary care to guard the proprietor’s patrons against the risk posed by criminal activity since the proprietor knew about a purse snatching in the proprietor’s parking lot and may have known that the proprietor’s business was located in a ‘‘high crime’’ area. Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). There was no proof of lack of ordinary care in failing to take proper steps to prevent criminal acts since grocery store was maintained in a manner no different or less than that used by other stores, particularly in regard to the lack of security personnel and reliance on local police authorities to handle criminal matters that did arise. Winn-Dixie Stores, Inc. v. Nichols, 205 Ga. App. 308, 422 S.E.2d 209 (1992). Since there had been no prior incidents 51-3-1 of theft of customers’ belongings in grocery store, as a matter of law, the store owed no duty to plaintiff to protect the plaintiff from this risk. Winn-Dixie Stores, Inc. v. Nichols, 205 Ga. App. 308, 422 S.E.2d 209 (1992). In an action against a landlord by a tenant who was attacked and raped in the garage of her apartment building, even assuming the landlord had knowledge of several prior thefts, there was no evidence that prior crimes against individuals occurred prior to the attack and the attack was not reasonably foreseeable by the landlord. Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 222 Ga. App. 169, 474 S.E.2d 31 (1996), aff ’d, 268 Ga. 604, 492 S.E.2d 865 (1997). So long as the occurrence of prior crimes should ‘‘attract the landlord’s attention to the dangerous condition which resulted in the litigated incident,’’ the prior crimes were relevant to the issue of foreseeability. Woodall v. Rivermont Apts. Ltd. Partnership, 239 Ga. App. 36, 520 S.E.2d 741 (1999). Evidence that an apartment was located in a high crime area was relevant to the question of whether the increase in property crimes at the apartment should have placed the landlord on notice of the risk of violent crime. Woodall v. Rivermont Apts. Ltd. Partnership, 239 Ga. App. 36, 520 S.E.2d 741 (1999). When the plaintiffs were victims of burglary, armed robbery, aggravated assault, and kidnapping in their apartment, prior similar occurrences did not require that, in the past, someone else was kidnapped for the purpose of forcing the opening of a safe or store; all that was required was that prior incidents be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the incident. FPI Atlanta, L.P. v. Seaton, 240 Ga. App. 880, 524 S.E.2d 524 (1999). Evidence of criminal activity at nightclub. — In an action for injuries resulting from a fight in the parking lot of a nightclub, since the plaintiffs were unable to show superior knowledge on behalf of the owner of the leasehold and operator of the nightclub, the defendants were entitled to summary judgment. Habersham Venture, Ltd. v. Breedlove, 244 Ga. App. 407, 535 S.E.2d 788 (2000). 366 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND In a customer’s personal injury action, a property owner was properly granted summary judgment, as the owner had no duty to foresee any danger from its criminally damaged pay phone falling on the customer’s head, the way the injury occurred was not reasonably expected, and due to the fact that such could not occur except from the customer’s unexpected acts. McAfee v. ETS Payphones, Inc., 283 Ga. App. 756, 642 S.E.2d 422 (2007). Evidence of crimes committed in bar. — Under O.C.G.A. § 51-3-1, a bar owner was not liable for a customer’s shooting of the bar’s patrons unless this crime was foreseeable and the owner did not exercise ordinary care to prevent the crime. As crimes occurring outside the bar, and the theft of a customer’s wallet inside the bar, did not give the owner notice sufficient to call the owner’s attention to the danger of violence in the bar, evidence of those crimes was not admissible. Vega v. La Movida, Inc., 294 Ga. App. 311, 670 S.E.2d 116 (2008). Evidence of criminal activity at restaurant. — Trial court properly granted summary judgment to a restaurant with regard to a stabbed patron’s premises liability claim because there was no evidence that similar criminal activities occurred at the restaurant or in the parking lot and there was no evidence that the restaurant or the employees had any previous encounters with the drunk customer such that they should have been on notice of violent tendencies. Whitfield v. Tequila Mexican Rest. No. 1, Inc., 323 Ga. App. 801, 748 S.E.2d 281 (2013). Right to control must be established when landowner is sought to be held liable for activities of a third person on the property with permission. Title ownership alone is not sufficient. Liability depends upon control, rather than ownership, of the premises. Daniel v. Georgia Power Co., 146 Ga. App. 596, 247 S.E.2d 139 (1978). No liability attached even though the defendant owned the property, when exclusive, actual control and operation of the premises was exercised by another party, and the plaintiff failed to establish a breach of any duty owed by the defendant attributable to the defendant’s occupa- 51-3-1 tion, actual control of, or operations on the property. Holiday Inns, Inc. v. Newton, 157 Ga. App. 436, 278 S.E.2d 85 (1981). Question of whether or not party is owner or occupier of land depends on whether or not party has control of property, whether or not the owner or occupier has title thereto and whether or not the owner or occupier has a superior right to possession of property which is in the possession or control of another. Scheer v. Cliatt, 133 Ga. App. 702, 212 S.E.2d 29 (1975). One who is in complete control over either land or chattels is under same duty to protect others as is possessor of land or chattels; the custodian in complete charge is not excused from liability by the fact that the custodian is acting for the benefit of another, but is subject to the same liability and has the same immunities as the possessor. Sharp-Boylston Co. v. Bostick, 90 Ga. App. 46, 81 S.E.2d 853 (1954). Whether particular appurtenance or instrumentality of property is under control of owner or occupant is usually a question of fact. Scheer v. Cliatt, 133 Ga. App. 702, 212 S.E.2d 29 (1975); Food Giant, Inc. v. Witherspoon, 183 Ga. App. 465, 359 S.E.2d 223 (1987). Bare record title sufficient to establish co-owner’s right to control. — In a co-ownership situation where an owner does not actually control the activities of the co-owner/occupier, the right to control evidenced by bare record title ownership is sufficient to establish liability for the occupier’s conduct. Daniel v. Georgia Power Co., 146 Ga. App. 596, 247 S.E.2d 139 (1978). Premises liability did not fall onto licensee having no control over conditions of the premises. — In a premises liability action, the trial court properly granted summary judgment to a participant in a contest held by a licensee, without considering the question of whether the participant assumed the risk of falling by participating in a jump-rope in a suit and dress shoes, as that participant failed to show that the licensee had control over the condition of the premises where the contest was held, and had superior knowledge of the hazard or defect 367 General Consideration (Cont’d) 3. Duty Owed to Invitee by Owner/ Occupier or Proprietor (Cont’d) which allegedly caused the participant’s injuries. Dixon v. Infinity Broad. East, Inc., 289 Ga. App. 71, 656 S.E.2d 211 (2007). Owner and occupier of premises is guilty of negligence in knowingly maintaining premises in patently defective condition. Rogers v. Sears, Roebuck & Co., 45 Ga. App. 772, 166 S.E. 64 (1932). The proprietor must refrain from creating, maintaining, or employing in the conduct of the proprietor’s business a device or instrumentality which is apt in the ordinary course of human events to injure persons lawfully coming into the proprietor’s establishment. Cooper v. Anderson, 96 Ga. App. 800, 101 S.E.2d 770 (1957), aff ’d, 214 Ga. 164, 104 S.E.2d 90 (1958). Ordinarily, defendant owner or proprietor would be allowed reasonable time to exercise care in inspecting and keeping premises in safe condition. Winn-Dixie Stores, Inc. v. Hardy, 138 Ga. App. 342, 226 S.E.2d 142 (1976); Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980). Duty of proprietor to protect from misconduct of others. — It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers, and third persons if there is any reasonable apprehension of danger from the conduct of those persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence. Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241, 414 S.E.2d 265 (1991), cert. denied, 202 Ga. App. 905, 414 S.E.2d 265 (1992). Proprietor must protect invitees from injury caused by misconduct of servants. — It is the duty of one who invites members of the general public to come to one’s place of business to protect such customers or invitees from injury caused by the misconduct of one’s own employees, in the conduct and scope of one’s business, and from the misconduct of other persons who come upon the premises. Great Atl. & Pac. Tea Co. v. Cox, 51 51-3-1 Ga. App. 880, 181 S.E. 788 (1935). Occupier of land is not liable for injuries sustained by invitee upon premises unless dangerous condition was created by occupier or occupier’s employee, or by third person, and in the latter case there is liability only after the occupier has knowledge of, or by exercise of ordinary care could have discovered, the hazardous condition, and then fails to use reasonable care to eliminate the condition. Veterans Org. of Fort Oglethorpe, Ga., Inc. v. Potter, 111 Ga. App. 201, 141 S.E.2d 230 (1965). Owner’s liability for dangerous condition created by third person. — An owner of premises is liable in damages to a guest when the owner has reason to anticipate the misconduct of another guest inflicting the injury but not otherwise since the owner is not the insurer of the safety of guests. Veterans Org. of Fort Oglethorpe, Ga., Inc. v. Potter, 111 Ga. App. 201, 141 S.E.2d 230 (1965). In a premise liability action, because questions of fact remained as to whether a student was a university’s invitee at the time the student was shot, on what was alleged to be the university’s property at the time of the assault and, thus, whether the university owed the student a duty of ordinary care, and no evidence was presented that the student lost an ‘‘invitee’’ status, summary judgment in the university’s favor was reversed. Clark Atlanta Univ., Inc. v. Williams, 288 Ga. App. 180, 654 S.E.2d 402 (2007), cert. denied, 2008 Ga. LEXIS 227 (Ga. 2008). An occupier of land is liable for injuries sustained by an invitee upon the occupier’s premises through a dangerous condition created by a third person only after the occupier has knowledge of, or by the exercise of ordinary care could have discovered, the hazardous condition, and then fails to use reasonable care to eliminate it. Bowling v. Janmar, Inc., 142 Ga. App. 53, 234 S.E.2d 849 (1977). Knowledge by the owner or ‘‘occupier’’ or one’s employee of the dangerous condition created by a third person is a prerequisite to recovery under O.C.G.A. § 51-3-1. Holiday Inns, Inc. v. Newton, 157 Ga. App. 436, 278 S.E.2d 85 (1981). Proprietor’s duty to control actions of third persons. — If the conduct of 368 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND employees outside of the scope of their employment, or of third persons or customers, is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury; but this duty of interference on the proprietor’s part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger. Great Atl. & Pac. Tea Co. v. Cox, 51 Ga. App. 880, 181 S.E. 788 (1935); Willis v. Byrd, 116 Ga. App. 555, 158 S.E.2d 458 (1967). When a customer is on the premises by the invitation of the proprietor, and while therein lawfully engaged, it is the duty of the proprietor to protect the customer from injury caused by the misconduct, not only of the proprietor’s own employees, but of other customers and third persons. Adamson v. Hand, 93 Ga. App. 5, 90 S.E.2d 669 (1955). It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence. Georgia Bowling Enters., Inc. v. Robbins, 103 Ga. App. 286, 119 S.E.2d 52 (1961); Hewett v. First Nat’l Bank, 155 Ga. App. 773, 272 S.E.2d 744 (1980). A proprietor is bound to use reasonable care to protect invitees from injury not only from defects in the premises but also from other dangers arising from the use of the premises by the proprietor or the proprietor’s licensees. Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979). Two patrons sued a bar owner after the patrons were shot by another customer, alleging the owner negligently failed to provide adequate security inside the bar. Defense counsel argued that as the patrons knew their assailant, their knowledge of the danger the assailant posed was 51-3-1 greater than the owner’s, but the patrons failed to exercise ordinary care to avoid the danger, and since these facts were a defense to the negligence charge, counsel’s comments were proper. Vega v. La Movida, Inc., 294 Ga. App. 311, 670 S.E.2d 116 (2008). Proprietor not insurer against all acts by third persons. — It would impose too great a duty upon a proprietor and would make the proprietor the insurer of the safety of all patrons, which the proprietor is not, to require the proprietor at all times to have immediate knowledge of and to remove every article on which a patron might stumble and fall when the article is placed there, not by the proprietor or the proprietor’s employees, but by other patrons. Hammonds v. Jackson, 132 Ga. App. 528, 208 S.E.2d 366 (1974). Liability of general contractor. — A general contractor had a non-delegable duty to keep the premises and approaches to houses under construction safe and was liable for the acts or omissions of its independent contractors in this regard. Kaplan v. Pulte Home Corp., 245 Ga. App. 286, 537 S.E.2d 727 (2000). Temporary possession by independent contractor. — Although there was evidence that the subsidiary companies owned the project premises or had employees or agents on the premises, the trial court did not err by directing a verdict in their favor pursuant to O.C.G.A. § 9-11-50(a) because when a property owner or occupier surrendered temporary possession and control of the property to an independent contractor to perform work on the property, the owner/occupier was generally not liable under O.C.G.A. § 51-3-1 for injuries sustained on the property by the contractor’s invitees due to unsafe working conditions on the premises which the owner/occupier had no right to control. The record showed that the subsidiary companies surrendered possession and control of the project premises to the independent contractor to perform the work as an independent contractor, that none of the defendants interfered with the independent contractor’s status as an independent contractor, and that the independent contractor had the duty 369 General Consideration (Cont’d) 3. Duty Owed to Invitee by Owner/ Occupier or Proprietor (Cont’d) to keep the project premises safe for its invitees; therefore, there was no evidence that the subsidiary companies had a duty under O.C.G.A. § 51-3-1 to keep the project premises safe. Ramcke v. Ga. Power Co., 306 Ga. App. 736, 703 S.E.2d 13 (2010), cert. denied, No. S11C0482, 2011 Ga. LEXIS 583 (Ga. 2011). Assault on employer’s property by foreseeable assailant. — Employer not liable for assault to employee by her boyfriend occurring in the employer’s parking lot since the attack had no connection with employment and the place chosen just happened to be the employer’s parking lot. Griffin v. AAA Auto Club S., Inc., 221 Ga. App. 1, 470 S.E.2d 474 (1996). Since the attack on the plaintiff employee was not a random stranger attack but grew out of a private relationship which had no connection with the premises or employment whatsoever, the employer did not create or allow to exist an environment which placed the plaintiff at risk any more than if the employee had been at home or on the street. Johnson v. Holiday Food Stores, Inc., 238 Ga. App. 822, 520 S.E.2d 502 (1999). Actions of third persons obviate application of res ipsa loquitur. — The fact that a person for whom a proprietor is not legally responsible (i.e., a visiting salesperson) might have accidentally discarded a foreign substance onto the floor of the premises removes the element of ‘‘exclusive physical control’’ and, therefore, renders the doctrine of res ipsa loquitur inapplicable. Dillon v. Grand Union Co., 167 Ga. App. 381, 306 S.E.2d 670 (1983). Proprietor not liable for acts which reasonable care cannot discover or prevent. — If the resulting injury happened suddenly and without warning and the proprietor of premises could not, by the exercise of reasonable care, have discovered or prevented it, there could be no recovery. The duty of the proprietor to interfere to prevent probable injury does not begin until the danger is apparent, or the circumstances are such as would put 51-3-1 an ordinarily prudent man on notice of the probability of danger. Lincoln v. Wilcox, 111 Ga. App. 365, 141 S.E.2d 765 (1965). Owner or occupier breaches no duty to invitee if by exercising ordinary care the owner or occupier could not have discovered and prevented the condition or circumstances that proximately caused the injury. Rhodes v. B.C. Moore & Sons, 153 Ga. App. 106, 264 S.E.2d 500 (1980). The general rule in such cases is not whether injuries result or the consequences were possible, but whether the injuries were probable, that is, likely to occur according to the usual experience of persons. Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979). Proprietor is under no duty to continuously patrol premises in absence of facts showing that premises are unusually dangerous. Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980). Effect of elevator’s involvement in accident on duty owed invitee. — Cases holding that the standard of care owed an invitee injured in the use of an elevator is one of extraordinary diligence rather than ordinary care involve mechanical failure or improper use of the elevator and have no application when the elevator was merely the situs of a slip and fall. Hughes v. Hospital Auth., 165 Ga. App. 530, 301 S.E.2d 695 (1983). Disputed facts as to storage facility owner’s duty of care. — Disputed facts regarding whether the storage facility owner fulfilled the owner’s duty of exercising ordinary care in keeping the owner’s approaches safe by providing a walk board with no means of securing the board to a loading dock or moving van precluded summary judgment. McGinnis v. Admiral Moving & Storage Co., 223 Ga. App. 410, 477 S.E.2d 841 (1996). Jury to determine status as licensee or invitee when property for sale. — Trial court erred in granting an electric company’s motion for summary judgment in a visitor’s personal injury action alleging that the company negligently maintained and inspected electrical wire the company had installed on 370 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND private property because the jury had to decide whether the visitor was a licensee or an invitee and then consider the company’s liability as occupier of the premises under the appropriate premises liability standard; a jury could find that the visitor was an invitee rather than a licensee because there was evidence that the visitor was looking at real property that was being offered for sale, that the property owner received the benefit of a potential sale from the visit to the property, but there was also evidence that the visitor was a licensee. McGarity v. Hart Elec. Mbrshp. Corp., 307 Ga. App. 739, 706 S.E.2d 676 (2011). Breach of duty presents jury question. — Questions of whether or not an owner breached the owner’s duty of care to invitees, and whether an invitee exercised reasonable care for the invitee’s own safety are normally for a jury, except in plain, palpable, and undisputed cases when reasonable minds cannot differ as to the conclusion to be reached. Pound v. Augusta Nat’l, Inc., 158 Ga. App. 166, 279 S.E.2d 342 (1981). Erroneous charge as to duty to invitee. — A charge to the jury to the effect that such a landowner is under the duty to see that the premises are ‘‘in such condition that the person invited may approach and remain thereon in safety,’’ was error, in that the court, instead of charging, according to the true rule, that the duty of the landowner is to keep the landowner’s premises safe, placed upon the landowner the heavier burden of seeing that the person on the premises remained there in safety. Southern Ry. v. Bottoms, 35 Ga. App. 804, 134 S.E. 824 (1926). 4. Ordinary Care Standard There is a clear distinction between duty owing to invitee and duty owing to a mere licensee; an owner owes to a licensee no duty as to the condition of the premises, unless imposed by statute, save that the owner should not knowingly let the licensee run upon a hidden peril, or willfully cause the licensee harm; while to one invited the owner is under obligation for reasonable security for the purposes of the invitation. Atlantic Coast Line R.R. v. 51-3-1 O’Neal, 180 Ga. 153, 178 S.E. 451 (1934); Georgia Power Co. v. Sheats, 58 Ga. App. 730, 199 S.E. 582 (1938); Mortgage Comm’n Servicing Corp. v. Brock, 60 Ga. App. 695, 4 S.E.2d 669 (1939); Freeman v. Levy, 60 Ga. App. 861, 5 S.E.2d 61 (1939). Duty of ordinary care that patron owes to invitees is same duty of ordinary care in keeping the premises safe which master owes to the servant; in either case, two elements must exist in order to merit recovery, fault on the part of the owner, and ignorance of the danger on the part of the invitee. Rogers v. Atlanta Enters., Inc., 89 Ga. App. 903, 81 S.E.2d 721 (1954); Braun v. Wright, 100 Ga. App. 295, 111 S.E.2d 100 (1959). Person is required to exercise ordinary care to keep premises safe and free from hidden dangers with respect to invitee. Young v. Towles, 113 Ga. App. 471, 148 S.E.2d 455 (1966). Duty to invitee is to exercise ordinary care to keep premises safe, not reasonably safe. Western & A.R.R. v. Hetzel, 38 Ga. App. 556, 144 S.E. 506 (1928); Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 30 S.E.2d 426 (1944), rev’d on other grounds, 169 Ga. 246, 149 S.E. 876 (1929). ‘‘Safe’’ and ‘‘reasonably safe’’ not synonymous terms. — There is a wide difference between exercising ordinary care to keep the premises safe and exercising such care to keep the premises reasonably safe. Massey v. Georgia Power Co., 85 Ga. App. 593, 69 S.E.2d 824 (1952). The precise legal intent of term ‘‘ordinary care’’ must depend upon circumstances of each individual case. It is a relative and not an absolute term. Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972). What ordinary care is must be determined in part by the standards of care generally regarded as adequate in similar situations. Angel v. Varsity, Inc., 113 Ga. App. 507, 148 S.E.2d 451 (1966). The actual result of an act or omission is not controlling in determining whether or not it was negligent, nor is the duty of the person doing or omitting to do an act to be estimated by what, after an injury has occurred, then first appears to be a proper precaution, but the question of 371 General Consideration (Cont’d) 4. Ordinary Care Standard (Cont’d) negligence must be determined according to what should reasonably have been anticipated, in the exercise of ordinary care, as likely to happen. Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84 (1957); Savannah E. Side Corp. v. Robinson, 102 Ga. App. 426, 116 S.E.2d 613 (1960). An ordinary care standard is whether a reasonably prudent person at the time and in the circumstances would have foreseen danger and what the person reasonably would have done to prevent injury; negligence is defective foresight judged by this standard rather than by hindsight of what actually happened and the effectiveness of the action taken. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972); Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979). The standard of care imposed by this section upon the owner or occupier of premises is measured by what the prudent man would do under the circumstances, and that whether in terms of ‘‘reasonable care,’’ or ‘‘ordinary care,’’ in keeping the premises ‘‘safe’’ or ‘‘reasonably safe’’ it is the same. Hammonds v. Jackson, 132 Ga. App. 528, 208 S.E.2d 366 (1974). Ordinary care may vary with use to which property devoted. — Ordinary care and diligence, as applied to the keeping of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised according to the nature of the use to which the property is devoted. Townley v. Rich’s, Inc., 84 Ga. App. 772, 67 S.E.2d 403 (1951); Jones v. Hunter, 94 Ga. App. 316, 94 S.E.2d 384 (1956); Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972). Mere omission to act when there is a duty to act will amount to actionable negligence as to one to whom duty is due. However, no duty to act arises until one has notice, actual or constructive, that failure to so act will probably result in injury to another. Norris v. Macon Term. Co., 58 Ga. App. 313, 198 S.E. 272 (1938). Landowner is not an insurer of an invitee’s safety, because the law only 51-3-1 requires such diligence toward making the premises safe as the ordinarily prudent person in such matters is accustomed to use. Barksdale v. Nuwar, 203 Ga. App. 184, 416 S.E.2d 546 (1992). Exercise of ordinary care by owner to keep premises safe for invitees includes duty to anticipate negligence of others which is usual or likely to happen. Winn-Dixie Stores, Inc. v. Hardy, 138 Ga. App. 342, 226 S.E.2d 142 (1976); Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979). Ordinary care does not require inspection when no apparent need exists. — When there is nothing in the evidence to indicate the propriety or the necessity of making an inspection to ascertain the possible or probable existence of any defects, ordinary diligence does not require an inspection when there is no reason to think an inspection is necessary. Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84 (1957); McLaury v. McGregor, 110 Ga. App. 679, 139 S.E.2d 444 (1964); Hood v. McCall Clinic, Inc., 145 Ga. App. 314, 243 S.E.2d 571 (1978). One is not chargeable with negligence in failing to discover and remedy danger which one would not have discovered by exercise of ordinary care, or which has not existed for a sufficient time to charge one with the duty of discovering it. Neither is a person bound to foresee and guard against casualties which are not reasonably to be expected, which would not occur save under exceptional circumstances, or which result from an unexpected act of the person injured. McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 15 S.E.2d 797 (1941); Savannah E. Side Corp. v. Robinson, 102 Ga. App. 426, 116 S.E.2d 613 (1960). It is usually willful or wanton not to exercise ordinary care to prevent injury to person who is actually known to be, or reasonably expected to be, within the range of a dangerous act being done. Atlantic Coast Line R.R. v. O’Neal, 180 Ga. 153, 178 S.E. 451 (1934); Atlantic Steel Co. v. Cleaton, 52 Ga. App. 502, 183 S.E. 827 (1936). Owner must not create or maintain dangerous condition. — The law demands of the owner of premises that the 372 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND owner neither create upon the property nor permit after reasonable opportunity to learn of its existence a structural condition of static danger which with foreseeable probability may be activated by the negligence of another and imperil persons lawfully upon the property. Cooper v. Anderson, 96 Ga. App. 800, 101 S.E.2d 770 (1957), aff ’d, 214 Ga. 164, 104 S.E.2d 90 (1958). Because an injured person provided no evidence, in responding to a summary judgment motion, that an ordinarily prudent operator of an outdoor establishment would have applied a urethane coating to wood handrails installed outside and would not have pressure washed them, summary judgment in favor of a park, an authority, and a city was proper in the injured person’s claim seeking damages for getting a splinter from a bridge handrail. Hamblin v. City of Albany, 272 Ga. App. 246, 612 S.E.2d 69 (2005). Pleadings. — When a dangerous or hazardous condition is created by the owner or occupier of the premises, allegations showing that the owner or occupier knew or could have known or have discovered such dangerous or hazardous condition are not required. Kroger Co. v. Anderson, 110 Ga. App. 696, 140 S.E.2d 108 (1964). In order to state a cause of action in a case when the plaintiff alleges that due to an act of negligence by the defendant as the plaintiff slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show: (1) that defendant had actual or constructive knowledge of the foreign substance; and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980). Ordinary care, negligence, and proximate cause present jury questions. — It is a question of fact for the jury, whether an owner exercised ordinary care in constructing the premises, and in keeping in a safe condition. Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 126 S.E. 388 (1925). It is ordinarily a question of fact for a 51-3-1 jury whether an owner or occupier of premises has exercised the proper care and diligence in keeping the premises safe for those invited thereon. Lake v. Cameron, 64 Ga. App. 501, 13 S.E.2d 856 (1941); DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811, 278 S.E.2d 712 (1981). The plaintiff, being an invitee, because of mutuality of interest, was due ordinary care and it is for the jury to determine the issues of negligence. Martin v. Henson, 95 Ga. App. 715, 99 S.E.2d 251 (1957). Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care, or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence, are questions for jury determination, which the court will not decide as a matter of law on demurrer except as to acts declared by law to be negligence, or palpable and indisputable cases when reasonable minds cannot differ as to the conclusion to be reached. Colonial Stores, Inc. v. Donovan, 115 Ga. App. 330, 154 S.E.2d 659 (1967). An owner of premises must, as to invitees, exercise ordinary care to keep premises safe, not reasonably safe. When an invitee is injured on the premises, the question of negligence, whose negligence and what negligence is for the jury to determine under all the facts and circumstances of the case. Simpson v. Dotson, 133 Ga. App. 120, 210 S.E.2d 240 (1974). It is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases. Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979). Question of reasonable foreseeability and statutory duty imposed by this section to exercise ordinary care to protect invitees, is for a jury’s determination rather than summary adjudication by the courts when an intervening criminal act if the defendant had reasonable grounds for 373 General Consideration (Cont’d) 4. Ordinary Care Standard (Cont’d) apprehending that such criminal act would be committed. Lay v. Munford, Inc., 235 Ga. 340, 219 S.E.2d 416 (1975). When the defective condition is one of such character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury; but when the defect, if any, was so slight that no careful or prudent man would reasonably anticipate any danger from its existence, but still an accident happened which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant’s responsibility is one of the law. McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 15 S.E.2d 797 (1941); Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84 (1957); Griffith v. Morgan, 117 Ga. App. 216, 160 S.E.2d 420 (1968). A number of factors chargeable to defendant, none of which of itself reaches negligence threshold, may in their totality make jury question on whether a defect results which should have been foreseen by the owner or occupier of the premises as posing a hazard to an invitee thereon. Lumbus v. D.L. Claborn Buick-Opel, Inc., 153 Ga. App. 807, 266 S.E.2d 526 (1980). Plaintiff ’s contributory negligence cannot be implied as matter of law. — When an owner of land fails to comply with this section, and an invitee is injured by a patent defect, contributory negligence of the injured person cannot be implied as a matter of law. Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 126 S.E. 388 (1925). Duty Owed to Children There is a greater duty owed to small children lawfully upon premises than to older persons. Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 30 S.E.2d 426 (1944). Higher degree of care for children. — A well-defined distinction runs through the cases, between injuries caused by a dangerous statical condition and premises 51-3-1 where dangerous active operations are being carried on, a much higher degree of care is necessary in protecting children in the latter case than in the former. Atlantic Steel Co. v. Cleaton, 52 Ga. App. 502, 183 S.E. 827 (1936). ‘‘Due care’’ or ‘‘ordinary care’’ to avoid injury to another may involve a greater duty owed to small children lawfully upon premises than to older persons, and accordingly the degree of care may vary with the capacity of the invitee. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 92 S.E.2d 720 (1956). The degree of care owed to a child by a landlord with regard to common areas over which the landlord has retained control may be greater than that which would be owed to an adult under the same circumstances. Lidster v. Jones, 176 Ga. App. 392, 336 S.E.2d 287 (1985), cert. vacated sub nom. Pine Terrace Assocs., Ltd. v. Lidster, 255 Ga. 405, 341 S.E.2d 8 (1986). With regard to minor invitees, the degree of care owed is proportioned to their ability to foresee and avoid perils which may be encountered; therefore, the degree of care owned a minor in a particular set of circumstances may be greater than that which would be owed an adult. Massey v. Hilton Heights Park, 121 Ga. App. 214, 173 S.E.2d 396 (1970). One using or handling any instrumentality of an unusual and dangerous character is bound to take exceptional precautions to prevent injury thereby, and children of tender years and youthful persons generally are entitled to a degree of care proportioned to their ability to foresee and void the perils that may be thus encountered; therefore, the fact that the defendant’s servants might or might not have intended to return to the place of construction when dynamite caps were left unguarded and exposed at some short or indefinite time thereafter would not relieve the defendant from taking the necessary and proper precautions during the interval, however short, during which the operatives were in fact absent. Lee v. Georgia Forest Prods. Co., 44 Ga. App. 850, 163 S.E. 267 (1932). There is duty to keep turntable fastened so that child attracted thereto will not be injured. Ferguson v. Colum- 374 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND bus & Rome Ry., 75 Ga. 637 (1885). Doctrine of turntable cases does not apply to moving car upon track of railroad company. Underwood v. Western & A.R.R., 105 Ga. 48, 31 S.E. 123 (1898). Owner has no absolute duty to guard against all possible injuries to child. — When there is no negligence involved in the keeping and maintaining of the premises, and no actual notice of the peril of the child, there is no absolute duty to guard against every possible way in which a child might escape from the normal use of the premises and, by climbing upon portions thereof not intended for such use places oneself in danger of injury by falling. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 92 S.E.2d 720 (1956). While the owner of premises may owe more duty to a child than to an adult coming upon the owner’s premises by implied invitation, yet the owner is not bound to guard every stairway, cellarway, retaining wall, shed, tree, and open window on the owner’s premises, so that such child cannot climb to a precipitous place and fall off. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 92 S.E.2d 720 (1956). Owner is not insurer of safety of child, and accordingly is not liable for injuries resulting solely from the conduct of the child in misusing otherwise safe premises, which misuse by the child was unknown to the owner. McLaury v. McGregor, 110 Ga. App. 679, 139 S.E.2d 444 (1964); Lincoln v. Wilcox, 111 Ga. App. 365, 141 S.E.2d 765 (1965). Turntable doctrine does not permit recovery from owner of vacant house when a child was injured entering therein. O’Connor v. Bruckner, 117 Ga. 451, 43 S.E. 731 (1903). Child accompanying parent into store has invitee status. — A child who accompanies a parent customer into a store, or similar establishment does not come within the definition of a licensee contained in former Code 1933, § 105-402 (see now O.C.G.A. § 51-3-2), for the child does not enter such establishment ‘‘merely for his own interest, convenience or gratification,’’ but the child’s presence is essential and vital to the business con- 51-3-1 ducted on the premises by the owner or proprietor; the child has the status of an invitee to whom the law requires ordinary care to be accorded. Cooper v. Anderson, 96 Ga. App. 800, 101 S.E.2d 770 (1957), aff ’d, 214 Ga. 164, 104 S.E.2d 90 (1958). Child of employee is invitee upon residential area maintained by company. — When the defendant mill maintained on its premises houses for its employees, in vicinity of which a reservoir was located, and incident to draining such reservoir for sanitary purposes invited employees and their children to catch and remove fish and turtles found therein, providing a ladder for the purpose, the child of an employee who was killed by falling into an open well three feet from the ladder was an invitee upon the premises. Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 30 S.E.2d 426 (1944). Child entering store to use restroom deemed licensee, not invitee. — In a parent’s suit as a next friend to the parent’s daughter, the trial court erred in denying summary judgment to a retailer and its employees on the parent’s claim of tortious misconduct, as no evidence was presented that the child victim was the retailer’s business invitee, but was merely a licensee under both O.C.G.A. §§ 51-3-1 and 51-3-2, as the child merely entered the business with the sole intent to use the restroom; however, summary judgment was properly denied as to the invasion of privacy, intentional infliction of emotional distress, false imprisonment, false arrest, and damages claims filed by the parent against the defendants. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008). Landowners duty to child as to latent construction defects. — Trial court erred in granting summary judgment to the property owners in a negligence claim because genuine issues of material fact remained as to whether the property owners violated applicable building codes in the construction of their deck, whether they exercised ordinary care in preventing injury to their guests from a defect in the deck or showed such indifference to the consequences as to justify a 375 Duty Owed to Children (Cont’d) finding of wantonness, and whether an injured child had equal knowledge of the hazard and failed to exercise ordinary care for the child’s own safety. Hicks v. Walker, 262 Ga. App. 216, 585 S.E.2d 83 (2003). Carriers Carrier owes duty of ordinary care with respect to member of public entering upon premises for purpose of doing business with the carrier, including persons coming to meet arriving passengers. Hightower v. City Council, 124 Ga. App. 537, 184 S.E.2d 678 (1971). Carrier’s duty of exercising ordinary care to furnish safe station facilities is not to be confused with carrier’s duty to use extraordinary care in receiving, transporting and discharging its passengers. Delta Air Lines v. Millirons, 87 Ga. App. 334, 73 S.E.2d 598 (1952). Relationship of carrier and passenger terminates when passenger has been safely discharged and when the carrier is no longer bound to exercise extraordinary care for the passenger’s safety, but is bound to use only the same degree of care for the passenger’s safety as it would for the safety of any other member of the public upon its premises by invitation, express or implied. Delta Air Lines v. Millirons, 87 Ga. App. 334, 73 S.E.2d 598 (1952). Being no longer restricted to a designated route from the airplane on which one had been traveling, the individual was no longer a passenger when the individual stumbled over a low wall between the parking lot and the waiting area of the landing field and sustained the individual’s injuries. Delta Air Lines v. Millirons, 87 Ga. App. 334, 73 S.E.2d 598 (1952). Duty of carrier by air in respect to maintenance of its premises for use of arriving or departing passengers is same as that of any owner or occupier of land to those whom one induces, by express or implied invitation, to enter one’s premises for lawful purposes, and that duty is to exercise ordinary care in keeping the premises and approaches 51-3-1 safe. Delta Air Lines v. Millirons, 87 Ga. App. 334, 73 S.E.2d 598 (1952). Duty of carrier to exercise ordinary care in keeping its premises safe exists not only with respect to those persons being received or who have been discharged as passengers, but also with respect to any member of the public entering such premises for the purposes of doing business with the carrier, including even persons coming to meet arriving passengers. Delta Air Lines v. Millirons, 87 Ga. App. 334, 73 S.E.2d 598 (1952). Railroad company bound by section. — The liability under this section of a railroad company as the owner or occupier of land, engaged in business, is the same as that of any person. Central of Ga. Ry. v. Hunter, 128 Ga. 600, 58 S.E. 154 (1907). Railroad must exercise reasonable care to make right of way safe. Central of Ga. Ry. v. Lawley, 33 Ga. App. 375, 126 S.E. 273, cert. denied, 33 Ga. App. 828 (1925). Person who goes to railroad station to meet and look after incoming passenger occupies status of invitee. Atlanta & W. Point R.R. v. Hyde, 45 Ga. App. 548, 165 S.E. 466 (1932). Servant to carrier’s passenger may be invitee. — A servant of a patron of a railroad who is on the premises of the railroad in connection with the servant’s employment by the patron, waiting to be transported to a place where the servant would actually engage in the duties of the servant’s employment, the servant’s presence on the premises being incidental to the servant’s employment and having been brought about by the servant’s employer, is an invitee on the premises, and under the admissions in the pleadings and the evidence in this case, the plaintiff was an invitee on the premises of the defendant. Atlantic Coast Line R.R. v. Dupriest, 81 Ga. App. 773, 59 S.E.2d 767 (1950). Person not invitee when entering premises to transact purely personal business with carrier’s passenger. — When a person enters upon the premises of a railroad company to meet a train in order to see ‘‘a party’’ for the purpose of trying to procure through that person employment in which the railroad company 376 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND was in no wise interested or concerned, the presence of the person so entering upon the premises is purely for the person’s own benefit and interest, and the person is a mere licensee, and not an invitee. Atlanta & W. Point R.R. v. Hyde, 45 Ga. App. 548, 165 S.E. 466 (1932). Implied invitation. — When a stranger passing along the street on a rainy night might, while in the exercise of ordinary care, have believed that a privately owned roadway or driveway was but a continuation of the public street, and thus have been reasonably misled into driving thereupon in an effort to cross a railroad, there was what amounted to an implied invitation on the part of the defendant roadway owner to enter upon its premises. Williamson v. Southern Ry., 42 Ga. App. 9, 155 S.E. 113 (1930). Ordinarily, only duty owing by a railway company to a trespasser upon or about the company’s property is not wantonly or willfully to injure the trespasser after the trespasser’s presence has been discovered. Central of Ga. Ry. v. Stamps, 48 Ga. App. 309, 172 S.E. 806 (1934). After presence of trespasser upon track of defendant in front of its approaching train is discovered, it becomes the duty the trespasser of the agents in charge the trespasser’s of the train to give him some warning of the trespasser’s dangerous position. Fox v. Pollard, 52 Ga. App. 545, 183 S.E. 854 (1936). Commercial Sales Establishments Operator of retail mercantile establishment owes duty to those who come to operator’s store to trade of using care and caution necessary to keep the store premises and approaches in a safe condition. Parsons v. Sears, Roebuck & Co., 69 Ga. App. 11, 24 S.E.2d 717 (1943). When a person maintains a place of business at which the person sells goods or dispenses services to those who comply with the person’s requirements as to compensation therefor, such person owes a duty, to those coming to the premises to trade with the person, of using the care and caution necessary to keep the prem- 51-3-1 ises and approaches thereto in a safe condition. Lake v. Cameron, 64 Ga. App. 501, 13 S.E.2d 856 (1941). When a person maintains a place of business at which the person sells goods or dispenses services, such person owes a duty to those coming to the premises to trade with the person of using ordinary care and caution to keep the premises in a safe condition, and in the exercise of this duty, the merchandise and fixtures with which such person conducts the person’s business, must not be so placed as to threaten injury to those visiting the store who are in the exercise of ordinary care for their own safety. Parsons, Inc. v. Youngblood, 105 Ga. App. 583, 125 S.E.2d 518 (1962); Colonial Stores, Inc. v. Donovan, 115 Ga. App. 330, 154 S.E.2d 659 (1967); Cox v. K-Mart Enters. of Ga., Inc., 136 Ga. App. 453, 221 S.E.2d 661 (1975), later appeal, 143 Ga. App. 30, 237 S.E.2d 432 (1977). A storekeeper who balances merchandise on display in a precarious manner (or allows another to so arrange a display) should anticipate that slight force, not sufficient ordinarily to suggest to the actor who does not know of the peril that injury will result, may be sufficient to cause injury, and the storekeeper is not relieved of the consequences of this negligence by an intervening act which one should have anticipated. Colonial Stores, Inc. v. Donovan, 115 Ga. App. 330, 154 S.E.2d 659 (1967). The owner of any business establishment owes a duty to exercise ordinary care in keeping the approaches and passages which the owner expects and invites the customers to traverse free of objects and conditions of which the owner has knowledge and which might foreseeably cause injury. Brown v. Iocovozzi, 117 Ga. App. 693, 161 S.E.2d 385 (1968). Broad interpretation of invitee to shopping center. — Certainly, the defendants had ‘‘some interest’’ in the customer’s visit since the defendants were owners of a shopping center and success of the defendants’ shopping center venture depended on whether their tenants do a satisfactory volume of business. A customer is an invitee, and owners owe the customer the duty of using ordinary care 377 Commercial Sales Establishments (Cont’d) not to injure the customer in the place where invited. Hicks v. M.H.A., Inc., 107 Ga. App. 290, 129 S.E.2d 817 (1963). Merchant does not become insurer of customer’s safety; merchant is required only to exercise ordinary care to avoid injuring the customer. King Hdwe. Co. v. Teplis, 91 Ga. App. 13, 84 S.E.2d 686 (1954). Merchant is not insurer of safety of merchant’s customers, but the law requires such diligence toward making the premises safe as the ordinarily prudent businessman in such matters is accustomed to use. Winn-Dixie Stores, Inc. v. Hardy, 138 Ga. App. 342, 226 S.E.2d 142 (1976). Store proprietor to which prospective customers are invited is not insurer of their safety while in store, but owes to the customers merely the duty of exercising ordinary care to keep the store in a safe condition for their proper use. Southern Grocery Stores, Inc. v. Greer, 68 Ga. App. 583, 23 S.E.2d 484 (1942). Storekeeper is not insurer of safety of its customers, the duty imposed upon it under the law being to exercise ordinary care in keeping the premises and approaches safe. McMullan v. Kroger Co., 84 Ga. App. 195, 65 S.E.2d 420 (1951). Proprietor of premises is not insurer of safety of persons thereon against all acts of coinvitees; and when the proprietor has used ordinary care to keep the premises safe, the proprietor not guilty of negligence. Watson v. McCrory Stores, Inc., 97 Ga. App. 516, 103 S.E.2d 648 (1958); Lincoln v. Wilcox, 111 Ga. App. 365, 141 S.E.2d 765 (1965); Church’s Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979). True ground of liability is store proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. Angel v. Varsity, Inc., 113 Ga. App. 507, 148 S.E.2d 451 (1966); Mewborn v. Winn-Dixie Stores, Inc., 179 Ga. App. 284, 346 S.E.2d 95 (1986). Defective container or packaging. — In an action by a customer against a 51-3-1 drugstore for burns suffered when bleach spilled from a bottle as the customer removed it from a shelf, the jury was authorized to find that by placing a caustic substance contained in package without some sort of leakage protection, such as a protective wrap, at above the eye level of the average adult, the store should have anticipated that in the event of leakage, injury would result; reversing A.B.C. Drug Co. v. Monroe, 214 Ga. App. 136, 447 S.E.2d 315 (1994). Keaton v. A.B.C. Drug Co., 266 Ga. 385, 467 S.E.2d 558 (1996). Knowledge of a puddle of water surrounded by ice, coupled with knowledge of the generally prevailing weather conditions, is knowledge of a probable danger of encountering additional ice under the surface of the water and a danger of slipping when walking thereon. Bloch v. Herman’s Sporting Goods, Inc., 208 Ga. App. 280, 430 S.E.2d 86 (1993). Because no evidence was presented that a hardware store had actual knowledge that a hazard existed, summary judgment for the hardware store was proper in a claim for damages arising from an incident when a box fell on a customer at the hardware store. Green v. Home Depot U.S.A., Inc., 277 Ga. App. 779, 627 S.E.2d 836 (2006). If the proprietor has reason to anticipate a criminal act, the proprietor then has a duty to exercise ordinary care to guard against injury from dangerous characters. The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which the proprietor has superior knowledge. Woods v. Kim, 262 Ga. App. 910, 429 S.E.2d 262 (1993). Criminal activity in parking lot. — A judgment in favor of a customer in a premises liability action was upheld on appeal as the customer established that the retailer breached the duty of care owed to the customer when the customer was robbed of the customer’s car and shot in the retailer’s parking lot and that the retailer had foreseeable knowledge of such criminal activity. Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 659 S.E.2d 905 (2008). Admission of evidence of prior criminal activity in retailer’s parking 378 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND lot. — In a premises liability action brought by a customer against a retailer involving an occurrence wherein the customer was carjacked and shot in the retailer’s parking lot, the trial court did not abuse the court’s discretion by allowing into evidence prior incidents of criminal activity at the retailer’s premises as, considering the location, nature, and extent of those prior criminal occurrences and their likeness to the incident involving the customer, the other occurrences were sufficiently similar. While there was no evidence of a prior incident in which the victim was shot and the victim’s car was taken at gunpoint, such as what had occurred to the customer, the prior criminal occurrences did not need to be identical to the one involving the customer and there were several robberies and assaults with a deadly weapon upon the premises, as well as thefts of and from vehicles in the retailer’s parking lot, which showed that it was reasonable to anticipate that an unauthorized entry into a vehicle might occur when the driver was nearby and that personal harm to the driver would result. Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 659 S.E.2d 905 (2008). Duty to protect from loiterers. — In an action for negligence against a store owner for a mugging that occurred in a vacant lot adjacent to the strip mall in which the store was located, summary judgment for the owner was erroneous, since the owner had specific knowledge of prior criminal attacks on the premises, attackers loitered on the owner’s premises waiting for victims, and the attackers followed the victim from the owner’s premises to the lot and assaulted the victim. Wilks v. Piggly Wiggly S., Inc., 207 Ga. App. 842, 429 S.E.2d 322 (1993). Premises mentioned in this section must constitute actual store building and lot of land on which it rests, which is under the actual dominion and control of the owner or occupier. Elmore of Embry Hills, Inc. v. Porcher, 124 Ga. App. 418, 183 S.E.2d 923 (1971). Premises being repaired. — Occupant of premises, notwithstanding fact that the occupant may have turned them over to independent contractor for repair, is not necessarily thereby relieved of duty 51-3-1 to exercise ordinary care to keep the premises safe for a person lawfully coming upon the premises. Southern Grocery Stores, Inc. v. Cain, 50 Ga. App. 629, 179 S.E. 128 (1935). When the occupant of premises which are used by the occupant in conducting a retail store in which business is done with the public and to which customers lawfully come to trade has merely permitted the landlord to come thereon for the purpose of making repairs in the floor, and has not relinquished control of the premises, and, while the repairs are being made, permits a customer to come into the store for the purpose of trading, the occupant nevertheless owes a duty to the customer to use ordinary care to have the premises safe. Southern Grocery Stores, Inc. v. Cain, 50 Ga. App. 629, 179 S.E. 128 (1935). Failure of shopping mall owner to seal walls of transformer room did not render the owner liable for damage to property of clothing store caused by smoke and soot from transformer room fire which escaped into storeroom. Sugrue v. Flint Elec. Membership Corp., 155 Ga. App. 481, 270 S.E.2d 921 (1980). Walls. — Owner of premises is not under duty as reasonably prudent man to make walls airtight so that gaseous matter cannot disseminate from one room to the other. Sugrue v. Flint Elec. Membership Corp., 155 Ga. App. 481, 270 S.E.2d 921 (1980). Sidewalks. — Each owner or occupier is responsible for keeping sidewalk immediately in front of and adjacent to the owner’s or occupier’s store in safe condition, and that the responsibility for the parking area, and those stretches of pavement that are not in front of the premises of any owner or occupier, must be borne by the owner and operator of the shopping center, provided the owner or operator has retained control of the shopping center. Elmore of Embry Hills, Inc. v. Porcher, 124 Ga. App. 418, 183 S.E.2d 923 (1971). Catch basins. — Because the catch basin was open and obvious, the property owners were under no duty to warn. Freyer v. Silver, 227 Ga. App. 253, 488 S.E.2d 728 (1997), aff ’d, 234 Ga. App. 243, 507 S.E.2d 7 (1998). 379 Commercial Sales Establishments (Cont’d) Steps. — It is duty of occupier to use ordinary care to maintain steps in the building used by its customers in a condition reasonably safe against accidents from slipping. Scott v. Rich’s, Inc., 47 Ga. App. 548, 171 S.E. 201 (1933). If, by reason of the negligence of the owner or occupier of a building to which the public is invited, the steps are maintained in a condition unsafe to the persons using the steps, and if by reason of such defect a person lawfully in the building using the steps is injured without fault on the person’s part, the occupier or owner of the building is responsible in damages therefor. Scott v. Rich’s, Inc., 47 Ga. App. 548, 171 S.E. 201 (1933). Defective footway, walkway, or excavation. — One maintaining a defective footway, walkway, or excavation on the premises through which another falls may be held guilty of actionable negligence unless it appears for other reasons that the plaintiff cannot recover. Narjoe Timber & Supply Co. v. Hanson, 133 Ga. App. 506, 211 S.E.2d 380 (1974). Maintenance of ramp. — When the pleadings and evidence before the court show that the defendant grocery store invited the plaintiff to use the ramp which had been constructed at the store’s request as a facility to its business, the defendant owed the plaintiff as its business invitee a duty to exercise ordinary care to keep the ramp safe for the invitee’s use. Scoggins v. Campbellton Plaza Corp., 114 Ga. App. 23, 150 S.E.2d 179 (1966). Malfunctioning escalator. — Store owner’s negligence was question for the jury since evidence showed that the store had actual knowledge for a ten-to-fifteen minute period that an escalator on its premises was malfunctioning and failed either to correct that potentially dangerous condition by stopping the malfunctioning escalator or otherwise, in the alternative, to warn its patrons of the existence of the potentially dangerous condition. Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 388 S.E.2d 920 (1989). Footmats. — A retail market may be negligent in failing to provide footmats at 51-3-1 the door leading from a private meat-cutting area of the store to the public area. Dillon v. Grand Union Co., 167 Ga. App. 381, 306 S.E.2d 670 (1983). Rubber mat in front of store. — In a case in which a customer sued a store after the customer tripped on a rubber mat outside the store’s entrance, the trial court erred in granting summary judgment for the store since genuine issues of material fact existed as to whether the store lacked superior knowledge of the hazard posed by the mat that caused the customer to trip and fall. Benefield v. Tominich, 308 Ga. App. 605, 708 S.E.2d 563 (2011). Store shelf corner. — A customer who tripped and fell when the customer’s pants cuff caught the outer corner of a store shelf was not entitled to recover against the store based on premises liability under O.C.G.A. § 51-3-1; the customer made the turn at issue many times before and did so while observing the hazard of which the customer complained, and given that the customer was able to observe the shelf corner for ten seconds before falling, the shelf corner was an open and obvious condition of which the customer had at least equal knowledge and could have avoided in the exercise of ordinary care. Wright v. K-Mart Corp., 286 Ga. App. 765, 650 S.E.2d 300 (2007), cert. denied, 2008 Ga. LEXIS 124 (Ga. 2008). Openly visible static condition. — A store owner is not liable to a customer who slips and falls due to an openly visible ‘‘static condition’’, such as a hole or uneven place on the sidewalk at the edge of the store, and the owner has reason to believe the customer will discover the condition or realize the risk involved. Jeter v. Edwards, 180 Ga. App. 283, 349 S.E.2d 28 (1986). A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. Herrin v. Peeches Neighborhood Grill & Bar, Inc., 235 Ga. App. 528, 509 S.E.2d 103 (1998). 380 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND Trial court properly found that a shopping center curb where an injured person fell was an open and obvious static condition and that the injured person failed to exercise reasonable care for their own safety; pursuant to O.C.G.A. § 51-3-1, the trial court properly granted summary judgment for the defendants in the injured person’s claim because the injured person failed to show that the curb was negligently designed, constructed, maintained, or difficult to see, and contended only that the injured person failed to appreciate the height of the curb. Pirkle v. Robson Crossing, LLC, 272 Ga. App. 259, 612 S.E.2d 83 (2005). Trial court did not err in granting a store owner summary judgment in a customer’s action to recover damages for injuries the customer sustained when the customer fell from a curb in the store’s parking lot because the customer had equal knowledge of any hazard presented by the height of the curb; even if the curbed sidewalk was hazardous, the condition was open and obvious and, thus, in the exercise of ordinary care, the customer could have avoided the hazard. McLemore v. Genuine Parts Co., 313 Ga. App. 641, 722 S.E.2d 366 (2012). Because a customer did not testify that the purported distraction of people attending a tool show in any way obstructed the customer’s view of a curb, the proof offered clearly put the case within the line of cases involving the plain view doctrine and effectively eliminated any distraction theory. McLemore v. Genuine Parts Co., 313 Ga. App. 641, 722 S.E.2d 366 (2012). Holes in ground in orchard open to public to pick fruit. — Trial court erred in granting defendant orchard owners’ motion for summary judgment after the plaintiff fell into a hole while picking fruit and, from the plaintiff ’s testimony concerning the size of the hole, a jury would have been authorized to infer both that it had been in existence for a substantial period of time and that it was large enough to have been observable during routine mowing and maintenance. Lawless v. Sasnett, 200 Ga. App. 398, 408 S.E.2d 432, cert. denied, 200 Ga. App. 896, 408 S.E.2d 432 (1991). Dangerous adjacent construction activity. — The fact that the defendant 51-3-1 shopping mall owners did not anticipate that the actual encroachment of dangerous construction activity onto their unpatrolled and unbarriered sidewalk would take the form of an intentional rather than an inadvertent act of the workers was immaterial; the defendants could still be found liable if the evidence was sufficient to authorize the jury to find that the defendants were on notice that the failure to take any precautions to protect their invitees on the adjacent sidewalk would result in some form of potential physical encroachment of the dangerous construction activity with an injurious result. Towles v. Cox, 181 Ga. App. 194, 351 S.E.2d 718 (1986). Unruly bar patron. — Evidence raised a question of fact concerning whether restaurant employees could have foreseen the potential danger stemming from loud and unruly bar patron who eventually attacked plaintiff with a pool cue, such that factual question existed for the jury to resolve on the issue of negligence and diligence, and the trial court correctly denied defendant’s motion for summary judgment. Good Ol’ Days Downtown, Inc. v. Yancey, 209 Ga. App. 696, 434 S.E.2d 740 (1993). There was sufficient evidence from which the jury could have concluded that a fight resulting in a bar patron’s injuries was foreseeable and could have been avoided if the bar and the bar’s owner had banished the patrons involved in the fight based on their duty to the patron, O.C.G.A. § 51-3-1. The patrons involved in the fight were chronically combative, had been banished on previous occasions, and were hostile and combative for hours before the subject fight. Mulligan’s Bar & Grill v. Stanfield, 294 Ga. App. 250, 668 S.E.2d 874 (2008), cert. denied, No. S09C0351, 2009 Ga. LEXIS 192 (Ga. 2009). Retailer’s duty of care includes protecting invitees from tortious conduct by servants. — When a corporation, engaged in the retail mercantile business, impliedly extends an invitation to the public to trade in its store, it is required to exercise the same degree of diligence to protect its customers from the tortious misconduct of its employees as an 381 Commercial Sales Establishments (Cont’d) individual must exercise to protect an invitee from the misconduct of such individual’s agents and employees acting about their master’s business and within the scope of their employment, though such misconduct of the corporation’s agents and employees may involve elements of slander. Simpson v. Jacobs Pharmacy Co., 76 Ga. App. 232, 45 S.E.2d 678 (1947). In suit against corporation engaged in the retail business for failure to exercise due care to protect its customers from the tortious misconduct of its servants and employees acting within the scope of and about their master’s business, the fact that such misconduct may involve elements of slander does not prevent the plaintiff from having a cause of action against the corporation for breach of its duty towards the plaintiff as an invitee on its premises. Simpson v. Jacobs Pharmacy Co., 76 Ga. App. 232, 45 S.E.2d 678 (1947). Customer must exercise ordinary care for customer’s own safety, and must avoid effect of merchant’s negligence after it becomes apparent to the customer or in the exercise of ordinary care the customer should have learned of it. King Hdwe. Co. v. Teplis, 91 Ga. App. 13, 84 S.E.2d 686 (1954). When the plaintiff in descending the defendant’s steps may have been looking at the steps and picking the plaintiff ’s way down as alleged in the petition, yet, when the plaintiff did not know the actual condition of the steps as the plaintiff alleges, it cannot be said as a matter of law that the plaintiff was under the circumstances guilty of negligence in using the steps, and that this negligence barred recovery. Scott v. Rich’s, Inc., 47 Ga. App. 548, 171 S.E. 201 (1933). It could not be said as a matter of law that the plaintiff ’s negligence, if any, would bar a recovery, the plaintiff having ascended the step in question in going into the passageway, in view of the plaintiff ’s poor eyesight and of allegations that the situation presented an appearance, to one going from the passageway to the lobby, different from what it was to one going 51-3-1 from the lobby to the passageway. Boyd v. Gardner, 62 Ga. App. 662, 9 S.E.2d 202 (1940). Grocery storekeeper’s maintenance of a concrete bar from three and one-half inches to six inches high and five feet long, in the storekeeper’s parking lot which could easily be seen by anyone with normal vision while walking there and exercising ordinary care for the storekeeper’s own safety is not actionable. McMullan v. Kroger Co., 84 Ga. App. 195, 65 S.E.2d 420 (1951). A grocery storekeeper is not bound to anticipate that customers would so disregard their own safety as to obstruct their vision with packages or sacks so as to be unable to see where they were walking. McMullan v. Kroger Co., 84 Ga. App. 195, 65 S.E.2d 420 (1951). A customer is not bound to avoid tripping or stumbling over articles which are not usually or are unusually, obstructing the aisles of a store, and which in the exercise of ordinary care the customer did not observe. King Hdwe. Co. v. Teplis, 91 Ga. App. 13, 84 S.E.2d 686 (1954). Trial court did not err in granting a lessee’s motion for summary judgment in a customer’s premises liability action under O.C.G.A. § 51-3-1 to recover damages for injuries the customer sustained when the customer fell down stairs in a shop because the customer failed to exercise ordinary care for the customer’s own safety pursuant to O.C.G.A. § 51-11-7; despite the customer’s inability to see beyond the merchandise, the customer continued to move in that direction, and the customer’s attempt to walk between or over the thick clutter of merchandise, when there was not an aisle or clear area of floor visible, constituted a voluntary departure from the route designated and maintained by the lessee for the customers’ safety and convenience and imposed a heightened duty of care for the customer’s own safety. Bartlett v. McDonough Bedding Co., 313 Ga. App. 657, 722 S.E.2d 380 (2012). Presence of foreign substance on floor. — When the alleged dangerous condition consists of the presence of a foreign substance on the floor, the proprietor’s superior opportunity to discover the sub- 382 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND stance may be established by evidence that an employee was in the immediate area of the dangerous condition who could have easily seen the substance and removed the hazard. In order to make out a prima facie case under this theory, however, it must additionally be shown that the substance had been on the floor for a length of time sufficient to have enabled the employee to discover and remove the substance. Flowers v. Kroger Co., 191 Ga. App. 464, 382 S.E.2d 184 (1989). Summary judgment for an employer was affirmed on an employee’s premises liability negligence claim as no one, including the employee, saw any foreign substance or other matter on the floor and no one, including the employee, had any idea what caused the slip and fall; without evidence of the existence of a foreign substance that somehow caused a fall, there could be no evidence that the employer had any knowledge of the alleged danger. Chapman v. C.C. Dickson Co., 273 Ga. App. 640, 616 S.E.2d 478 (2005). In a premises liability action against a retailer, because the patron failed to show proof that a single employee of the retailer was in the immediate area of the spill that allegedly caused the patron’s fall, and could have easily seen and removed the spill prior to the slip and fall, or proof that the liquid had been there for a sufficient length of time that the retailer should have discovered and removed the spill during a reasonable inspection and: (1) inasmuch as the purported hazard was not readily visible to the patron; and (2) the patron failed to establish that the retailer’s employees, who were at least 20 to 30 feet away, could have easily seen and removed the spill, or that the liquid had been on the retailer’s floor long enough that the retailer should have discovered and removed the spill during a reasonable inspection, the trial court erred in denying the retailer’s motion for summary judgment as to the retailer’s liability to the patron. Kmart Corp. v. McCollum, 290 Ga. App. 551, 659 S.E.2d 913 (2008). Store’s motion for summary judgment in a patron’s personal injury suit was denied because there existed genuine issues of disputed fact as to whether the store exercised reasonable care as re- 51-3-1 quired under O.C.G.A. § 51-3-1; there was conflicting evidence on the issue of the store’s constructive knowledge of an alleged puddle of cooking oil on the floor since the store’s evidence showed that the store’s assistant manager inspected the floor about 10 minutes before the patron fell, and the patron testified that the patron was in the aisle for five to 10 minutes before falling, the patron did not see the assistant manager, and the assistant manager had to be called down from an upstairs office at the back of the building when the patron reported the incident. Williams v. Big Lots Stores, Inc., No. 1:07-CV-1593-TWT, 2008 U.S. Dist. LEXIS 57648 (N.D. Ga. July 28, 2008). Presence of water on floor. — Whether the proprietor followed reasonable inspection procedures, which would have revealed water on the floor near the entrance on a rainy day, was a question of fact. Smith v. Toys ‘‘R’’ Us, Inc., 233 Ga. App. 188, 504 S.E.2d 31 (1998). Owner of mall was not negligent as a matter of law since the owner had less than 90 seconds to clean up water spilled on the floor prior to the plaintiff ’s fall. Pickering Corp. v. Goodwin, 243 Ga. App. 831, 534 S.E.2d 518 (2000). District court did not err in categorizing the plaintiff ’s case as a rainy-day slip and fall case because it had rained earlier in the day but was not raining at the time of the incident and did not err in concluding as a matter of law that the water accumulation was not unusual since the plaintiff conceded that the wet spot was difficult to discern and that the plaintiff could have tracked in the water on the plaintiff ’s shoes and when the store employees inspected the floor a few minutes before and a few minutes after the fall, and all the employees stated that the floor was clean and dry. Womack-Sang v. Publix Super Mkts., Inc., No. 13-15339, 2014 U.S. App. LEXIS 9185 (11th Cir. May 19, 2014) (Unpublished). Presence of chicken blood and water on floor. — Because genuine material fact issues remained as to whether a supermarket’s inspection procedures in the area in which a customer fell were reasonable and whether a reasonable inspection procedure would have detected a mixture 383 Commercial Sales Establishments (Cont’d) of chicken blood and water on the floor, summary judgment in favor of the supermarket was reversed; moreover, the appeals court rejected the supermarket’s claim that the customer had equal knowledge of the hazard since the customer had previously walked down the aisle before the customer fell there. Food Lion, LLC v. Walker, 290 Ga. App. 574, 660 S.E.2d 426 (2008). Egg spillage on pavement outside food store. — Fact questions, precluding summary judgment in a slip and fall case, existed as to whether store employees had constructive knowledge of egg spillage on the pavement outside the store. Boss v. Food Giant, Inc., 193 Ga. App. 434, 388 S.E.2d 37 (1989). No proof of delay between knowledge of spill and clean-up attempt. — In a slip and fall action, the trial court did not err in granting summary judgment in favor of the store as the aisle where the fall occurred had been inspected about 20 minutes before the fall, a cashier informed of the hazard told a bagger about the spill and the bagger went to get clean-up items and clean the spill, and there was no evidence that the patron fell after the cashier was notified of the spill or that there was any delay in the attempt to clean up the spill. Youngblood v. All American Quality Foods, Inc., 338 Ga. App. 817, 792 S.E.2d 417 (2016). Knowledge on part of the proprietor that there is foreign substance on floor that could cause patrons to slip and fall may be either actual or constructive. Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980). Proprietor’s knowledge must be alleged and shown. — When a customer slips on a substance placed on the floor by others than the owner it is necessary to allege and prove either that the defendant had knowledge or that under the circumstances the owner was chargeable with constructive knowledge of the substance’s existence. This is particularly applicable to spilled foods and liquids. Angel v. Varsity, Inc., 113 Ga. App. 507, 148 S.E.2d 451 (1966); Winn-Dixie Stores, Inc. v. Hardy, 51-3-1 138 Ga. App. 342, 226 S.E.2d 142 (1976); Garrison v. Rich’s, 154 Ga. App. 663, 269 S.E.2d 513 (1980). While owner or occupier of land is liable to invitees for the owner’s or occupier’s failure to exercise ordinary care in keeping premises safe, before owner can be held liable for slippery conditions of floors, produced by presence of a foreign substance thereon, proof should show that the owner or occupier was aware of the substance or would have known of the substance’s presence had the owner or occupier exercised reasonable care and that the person injured was unaware of the substance. Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980); Jackson v. Camilla Trading Post, Inc., 218 Ga. App. 164, 460 S.E.2d 849 (1995). Pawn shop was entitled to summary judgment in the plaintiff ’s personal injury action arising out of an injury caused by a saw, as the pawn shop did not breach its duty to inspect under O.C.G.A. § 51-3-1; the pawn shop’s inspection of the saw, which included determining whether it operated properly, did not reveal the defect that caused it to turn immediately upon being plugged in. Walker v. Bruhn, 281 Ga. App. 149, 635 S.E.2d 322 (2006). Patron’s claims for damages for personal injuries allegedly sustained when the patron removed a bread maker from a merchant’s shelf and several crock pots fell from another shelf failed because the patron failed to show, in accordance with O.C.G.A. § 51-3-1, that the merchant was actually or constructively aware of the allegedly perilous display of cookware; the patron presented no evidence that an employee of the merchant was in the immediate vicinity at the time of the incident and in a position to see and remove the danger, the patron did not offer evidence that the alleged hazard had existed for any significant amount of time prior to the incident, there was no evidence of prior incidents that might have put the merchant on notice of the hazard, and the merchant submitted evidence that all of the merchant’s employees were trained to patrol the aisles and check for unsafe conditions and that one of the merchant’s employees had walked through the aisle where the incident occurred shortly before 384 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND and did not observe anything out of the ordinary. Gootee v. Target Corp., 256 Fed. Appx. 253 (11th Cir. 2007) (Unpublished). Parent’s suit to recover damages for personal injuries suffered by the parent’s minor child when a metal pamphlet rack fell on the child’s foot in a retail store was properly dismissed on summary judgment; the parent failed to show that the retailer breached the retailer’s duty of care under O.C.G.A. § 51-3-1, as there was no evidence that the retailer had actual knowledge of any defect in the rack, no constructive knowledge could be imputed to the retailer even if the rack was defectively constructed or installed, the retailer could not have easily seen and eliminated the hazardous condition, the parent did not offer any evidence that the defect existed a sufficient length of time that the retailer should have discovered it during a reasonable inspection, and because there was no record evidence indicating that the retailer constructed the rack, no presumption existed that the retailer knew of the defect. Jones v. Wal-Mart Stores, Inc., 256 Fed. Appx. 292 (11th Cir. 2007) (Unpublished). Trial court erred in denying a motion for j.n.o.v. filed by the owners and operators of a thrift store because there was no evidence that the owners possessed superior knowledge of the hazard posed by the allegedly defective chair, such as whether the defect was one which would have been visible during an inspection or how long the defect had existed. Family Thrift, Inc. v. Birthrong, 336 Ga. App. 601, 785 S.E.2d 547 (2016). Proprietor has no duty to know of all possible dangers caused by third persons. — It would impose too great a duty upon the proprietor and would make the proprietor the insurer of the safety of all patrons, which the proprietor is not, to require the proprietor at all times to have immediate knowledge of and to remove every article on which a patron might stumble and fall when the article is placed there, not by the defendant or the defendant’s employees, but by other patrons. Watson v. McCrory Stores, Inc., 97 Ga. App. 516, 103 S.E.2d 648 (1958). The trial court properly granted summary judgment to a retailer, in a custom- 51-3-1 er’s negligence action filed against it for injuries sustained when a tomato tower punctured an eye, as the customer’s injury arose out of a third party’s actions which the retailer did not and could not have foreseen, and hence no evidence was presented that the retailer breached a duty owed to the customer. Thomas v. Home Depot, U.S.A., Inc., 284 Ga. App. 699, 644 S.E.2d 538 (2007). No duty to inspect or take other affirmative action when circumstances do not indicate need. — Since there was no actual knowledge of the alleged dangerous and unsafe condition, and there is nothing in the petition to show or indicate the propriety or necessity of making an inspection to ascertain the possible or probable existence of any defect, such as that other people had tripped or fallen on the steps, ordinary diligence did not as a matter of law require an inspection when the defendant had no reason to think an inspection was necessary. McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 15 S.E.2d 797 (1941). The positive testimony that no snakes had been seen on the premises in the six years of an owner’s tenure shows that an injury caused by running from a snake was unexpected; in the absence of knowledge of such a danger there is no duty on the part of the proprietor to keep the grass mowed short in order to guard against it. Nor does a plaintiff ’s testimony that there were snakes along a river a mile or so away raise such a duty when in fact there had been none in the area around the building. Williams v. Gibbs, 123 Ga. App. 677, 182 S.E.2d 164 (1971). This section does not require a proprietor to patrol the floor constantly when there are no conditions making the premises unusually dangerous. Winn-Dixie Stores, Inc. v. Hardy, 138 Ga. App. 342, 226 S.E.2d 142 (1976). Adequacy of inspection procedures questioned. — Store’s motion for summary judgment in a patron’s personal injury suit was denied because there existed genuine issues of disputed fact as to whether the store exercised reasonable care as required under O.C.G.A. § 51-3-1; the adequacy of the store’s inspection procedure, which required inspection every 385 Commercial Sales Establishments (Cont’d) two hours, could not be decided as a matter of law since there was evidence that the procedure was not followed, and there was further conflicting evidence on the issue of the store’s constructive knowledge of an alleged puddle of cooking oil on the floor. Williams v. Big Lots Stores, Inc., No. 1:07-CV-1593-TWT, 2008 U.S. Dist. LEXIS 57648 (N.D. Ga. July 28, 2008). Inspection of electrical wires. — Jury issue was presented as to whether an electric company exercised ordinary care to keep premises safe because it could not be concluded as a matter of law that the company’s inspection procedure was reasonable when there was evidence that an electrical wire presented a safety hazard, that the wire should have been covered with a junction box and placed on a concrete pad, and that at the time of a visitor’s injury the wire was not, and there was no evidence that any inspection was performed for at least five years between the initial post-installation inspection and the incident; a jury could find without expert testimony that the company had a duty to conduct more frequent inspections to ensure that the company’s live electrical wires were not left uncovered from the evidence presented, and a jury could conclude that the company was negligent in failing to discover the exposed live wire through more frequent inspection of the company’s equipment. McGarity v. Hart Elec. Mbrshp. Corp., 307 Ga. App. 739, 706 S.E.2d 676 (2011). Customer’s use of demonstration equipment. — An action by a customer who was injured using an exercise machine on display in a store could not survive summary judgment when evidence showed that the store used reasonable care in inspecting the machine, and that a loose nut on the machine was a hidden defect that could not have been foreseen. Anderson v. Service Merchandise Co., 230 Ga. App. 551, 496 S.E.2d 743 (1998). Since the plaintiff ’s evidence failed to show actual or constructive notice of danger, there was no breach of duty to use ordinary care imposed upon the retailer. Fender v. Colonial 51-3-1 Stores, Inc., 138 Ga. App. 31, 225 S.E.2d 691 (1976). Plaintiff could not recover for fall on supermarket’s wet floor absent defendants’ actual or constructive knowledge of the floor’s dangerous condition. The existence of such knowledge is a matter for the jury when there is evidence from which it may be inferred. See Gold & White, Inc. v. Long, 159 Ga. App. 259, 283 S.E.2d 45 (1981). Equal knowledge of danger. — In a slip-and-fall premises liability case, the trial court properly granted a store and two of the store’s employees summary judgment because the uncontroverted evidence showed that the customer walked over the boxes once without incident and then walked over the boxes again when the fall occurred, thus, the customer had equal knowledge of the danger. Houston v. Wal-Mart Stores E., L.P., 324 Ga. App. 105, 749 S.E.2d 400 (2013). Recurring hazard. — When condensation leaked from the ceiling for a long enough period of time to cause a couple of ceiling tiles to become wet-looking, while water dripped over a two- to three-foot area, it could be concluded that the leak occurred over an extended period, sufficient to put the defendant on notice that the previously known condensation hazard was recurring, and the trial court erred in granting summary judgment to the defendant. Lee v. Great Atl. & Pac. Tea Co., 237 Ga. App. 228, 513 S.E.2d 737 (1999). Mere showing that employees were in immediate area of hazard. — In a slip-and-fall case based on an owner’s alleged constructive knowledge of the hazard, action was not supported by a mere showing that owner’s employees were in the immediate area of the hazard absent a showing that the employees had the means and opportunity to discover and remove the hazard. Mitchell v. Food Giant, Inc., 176 Ga. App. 705, 337 S.E.2d 353 (1985). Necessity of pleading negligence. — In an action for damages for injuries received by an invitee of a store as a result of falling upon a stairway, under this section imposing upon the owner or occupier of land the duty of exercising ordinary care 386 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND to keep the premises in safe condition as to invitees, the plaintiff must allege negligence on the part of the defendant without at the same time barring the plaintiff from recovery by showing, through other facts, that the plaintiff failed to exercise ordinary care for the plaintiff ’s own safety. Watson v. McCrory Stores, Inc., 97 Ga. App. 516, 103 S.E.2d 648 (1958). Sufficiency of pleadings. — A petition which alleged that the plaintiff, while present in the defendant’s store as a customer, desiring to make a purchase from the defendant, was in a loud and angry tone, which could be heard by other customers present, falsely and unjustly accused by one of the defendant’s clerks of having in a handbag a certain article belonging to the defendant, which charge humiliated and embarrassed the plaintiff, set out a cause of action for a willful and intentional tort, that is, the failure to protect the plaintiff as a customer, lawfully upon the defendant’s premises, from injury caused by the misconduct of the defendant’s employees. Sims v. Miller’s, Inc., 50 Ga. App. 640, 179 S.E. 423 (1935). Petition set forth a cause of action against a photographic studio for maintaining premises in such a way that a dangerous and treacherous situation (a step-down) existed as to a person going from a studio room down the passageway to the lobby. Boyd v. Gardner, 62 Ga. App. 662, 9 S.E.2d 202 (1940). In an action for damages against the defendant corporation engaged in the retail pharmaceutical business, caused by false accusations of the clerk and manager of one of the defendant’s retail stores, that the plaintiff, who was a customer in that store, was attempting to cheat and swindle the store out of a sum of money by falsely representing that the clerk had given the clerk a $10.00 bill from which to obtain the sum of 39 cents this being the purchase price of an article bought by the plaintiff in that store, and when the petition also alleged that the plaintiff was assaulted by one of the defendant’s employees and was otherwise humiliated and embarrassed by such employees in the presence of other customers in that store, the allegations of the petition were sufficient, as against the general demur- 51-3-1 rer (now motion to dismiss) thereto, to set out a cause of action against the defendant corporation. Simpson v. Jacobs Pharmacy Co., 76 Ga. App. 232, 45 S.E.2d 678 (1947). Petitions stated a cause of action against a hardware company for negligence in permitting a roll of chicken wire to be left in the aisle of the store where the plaintiff (plaintiff ’s wife) tripped over the wire, sustaining the injuries sued for. King Hdwe. Co. v. Teplis, 91 Ga. App. 13, 84 S.E.2d 686 (1954). Resort obligation to protect from other guests. — The petition alleged a good cause of action against the owner of a public place for resort and recreation for failure to use ordinary care in the protection of the plaintiff guest against the misconduct of other guests. Adamson v. Hand, 93 Ga. App. 5, 90 S.E.2d 669 (1955). Negligence in floor treatments. — When the plaintiff alleges that the plaintiff fell because of slippery wax, oil, or other finish that the defendant placed on the floor, the plaintiff must, at a minimum, show that defendant was negligent either in the materials the defendant used in treating the floor or in the application of those materials. Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980). Evidence or allegations that after the accident, defendant, owner of premises, made changes or repairs are not permissible. Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 30 S.E.2d 426 (1944). Summary judgment proper when negligence not inferable from facts. — In action against store proprietor by plaintiff who slipped and fell, when there was no evidence that the defendant or the defendant’s agents were guilty of any negligence, but simply showed that the plaintiff fell while shopping in the defendant’s store, it could not be inferred from the record that the defendant negligently maintained the defendant’s floor and summary judgment for the defendant was proper. Alterman Foods, Inc. v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980). Whether proprietor exercised ordinary care is jury question. — When, in a department store to which the public is invited to do business, the top and edge of 387 51-3-1 the requested charge was incorrect. Taylor v. AmericasMart Real Estate, LLC, 287 Ga. App. 555, 651 S.E.2d 754 (2007). Commercial Sales Establishments (Cont’d) a stairway landing, which is used by the customers of the store, is covered with a metal strip, which through long use has become worn down, smooth, slick, slippery, dangerous and unsafe for use by the customers of the store, it is a question for the determination of the jury whether such department store in the exercise of ordinary care for the safety of its customers in the store should have discovered and remedied such defective and dangerous condition. Townley v. Rich’s, Inc., 84 Ga. App. 772, 67 S.E.2d 403 (1951). Whether alleged defects caused the plaintiff ’s fall and resulting injuries, and whether or not the defendant storekeeper actually knew of the alleged defects, or in the exercise of ordinary care should have discovered and repaired the defects or warned the plaintiff of the defects’ presence, or whether the plaintiff in the exercise of ordinary care for the plaintiff ’s own safety should have discovered the defects in the floor and avoided the defects, were questions for determination by the jury. Jones v. Hunter, 94 Ga. App. 316, 94 S.E.2d 384 (1956). Whether defendant liable for acts of servant towards invitee is jury question. — Under the allegations of the petition the plaintiff, at the time of the plaintiff ’s injury, was an invitee of the defendant cotton mill, and it was a question for the jury whether or not the act of the defendant’s store manager, in striking and injuring the plaintiff, was so closely connected with the employer’s business as to render the defendant liable for the willful assault of its servant. Crawford v. Exposition Cotton Mills, 63 Ga. App. 458, 11 S.E.2d 234 (1940). Jury instructions. — In a personal injury action filed against an invitee against a commercial premises owner, the invitee’s request that the trial court instruct the jury that an owner would be considered to have constructive knowledge of a foreign substance if it was shown that the owner did not have in place, or did not follow, a reasonable inspection procedure at the time of the incident, was properly denied, as the quoted portion of Home, Apartment, and Landowners Ordinary care standard applicable to homeowners. — Before a recovery is authorized for the plaintiff in an action against a homeowner for injuries suffered by the plaintiff while in the home it must be shown that the conditions allegedly causing the injuries were less safe than those provided by ordinarily prudent homeowners for their invitees. Slaughter v. Slaughter, 122 Ga. App. 374, 177 S.E.2d 119 (1970). In this personal injury action, the granting of summary judgment to the defendants was affirmed because the plaintiff ’s knowledge of icy conditions in the defendants’ driveway at the time of the incident was at least equal, if not superior, to that of the defendants; as the plaintiff walked across the driveway four times. Kouche v. Farr, 317 Ga. App. 277, 730 S.E.2d 45 (2012). Ordinary care does not require homeowner to mop continuously as guests (invitees) track water from the swimming pool into the basement or to give warning of such condition to them. Stanton v. Grubb, 114 Ga. App. 350, 151 S.E.2d 237 (1966). Pleading negligence against homeowner. — When it is alleged that the defendant homeowner was negligent in permitting a board to be placed in its dangerous position and in failing to warn the plaintiff thereof, this allegation is tantamount to an averment that the defendant had actual knowledge of the defective condition of the premises and the petition thus set forth a cause of action even if the plaintiff had been a licensee rather than an invitee. Lenkeit v. Chandler, 97 Ga. App. 769, 104 S.E.2d 476 (1958). No evidence was adduced to show that the homeowner had any knowledge or reasonable anticipation of a dangerous condition superior to that of the homebuilder or the defendant, the homebuilder’s employee, rendering the homeowner not liable for the defendant’s injuries sustained from a false scaffolding 388 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND board. Wimpey v. Otts, 207 Ga. App. 40, 427 S.E.2d 34 (1993). Landowner’s liability. — The true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted. Horney v. Panter, 204 Ga. App. 474, 420 S.E.2d 8 (1992). Failure to provide security in trailer park. — Summary judgment was properly denied to a trailer park owner in a premises liability action based upon the murder of a tenant in the park since the owner had a duty to provide security to the park as a result of a contract it entered with all residents and failed to inform the residents that security was discontinued. Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90, 645 S.E.2d 559, cert. denied, 285 Ga. App. 90, 645 S.E.2d 559 (2007). No evidence of constructive knowledge. — When no problem was readily discernible in the stairs outside an apartment either through inspection or regular walks through the property, and the plaintiff noticed no problems with the stairs even though the plaintiff went up and down them several times a day, and since no complaints had been made to the housing authority, there was no evidence that a reasonable inspection would have discovered the defect in the metal edging of the stairs, and thus no evidence of constructive knowledge. Padilla v. Hinesville Hous. Auth., 235 Ga. App. 409, 509 S.E.2d 698 (1998). Injury from falling deck. — Homeowners’ summary judgment motion should have been granted as the homeowners had no actual or constructive notice of a problem with a deck that collapsed, injuring the injured party; the home had been inspected one year earlier, and no problem with the deck was identified, although the inspection report indicated that the deck was not bolted to the house. Nailing a deck to a house was acceptable at the time of the inspection. Wingo v. Harrison, 268 Ga. App. 156, 601 S.E.2d 507 (2004). Injury from defective awning. — Homeowner was not liable under 51-3-1 O.C.G.A. § 51-3-1 to a contractor hired to clean pine straw on the homeowner’s roof when the contractor rested the contractor’s foot on an awning which gave way, leading to a fall and injuries, because there was no evidence that the owner had any knowledge, actual or constructive, of the defective attachment of the awning to the home. Sipple v. Newman, 313 Ga. App. 688, 722 S.E.2d 348 (2012). Liability extends to excavations either on premises or immediately adjacent to sidewalk, highway, or private way habitually used by public. Dobbs v. Noble, 55 Ga. App. 201, 189 S.E. 694 (1937). When the owner of premises negligently maintains a pit or excavation upon the owner’s land immediately adjacent to and abutting adjoining premises, and which, as a lot in a city upon which business is conducted, is in continuous use, and a person lawfully upon the adjoining premises in passing thereon immediately adjacent to the excavation, at night and without knowledge of the excavation, and without fault on the owner’s part, makes a misstep and falls into the excavation and is injured, the owner of the premises containing the excavation is liable in damages for the injury. Cox v. Greenfield, 50 Ga. App. 699, 179 S.E. 178 (1935). There is a duty on the part of a landowner not to maintain on the owner’s premises a dangerous excavation so that persons passing along a street immediately adjoining may not be injured while in the exercise of ordinary care or when by necessity or accident they slightly deviate from such street or walkway. Wright v. Southern Ry., 62 Ga. App. 316, 7 S.E.2d 793 (1940). When the defendant may have been negligent in failing to erect a barrier or guard for its culvert at a particular place, and would have been liable to the plaintiff if the plaintiff had casually or inadvertently walked or fallen into such culvert, the plaintiff was precipitated into such culvert by intervening negligent acts of the city and of the driver of the automobile, which acts were not such as would probably have occurred in the usual, natural and probable course of events, under the facts as pleaded the negligence of the defendant railway company, while con- 389 Home, Apartment, and Landowners (Cont’d) tributing to the injury, did not constitute the proximate and efficient cause of the injury. Wright v. Southern Ry., 62 Ga. App. 316, 7 S.E.2d 793 (1940). Public use of private way may amount to implied invitation. — If a landowner constructs a private way over the owner’s property and for a long period of time acquiesces in its use by members of the general public or so constructs the private way in connection with a public road as to make it impossible, under all conditions, to distinguish between them, this would amount to an implied invitation, at least to the extent that the owner should anticipate the presence of members of the general public thereon. Norris v. Macon Term. Co., 58 Ga. App. 313, 198 S.E. 272 (1938). Land adjacent to highway must be properly maintained. — When an owner of premises allows an excavation to be placed in dangerous proximity to a thoroughfare so that persons in the exercise of ordinary care might casually fall therein it is the duty of such owner to enclose the same as to afford reasonable immunity against danger, but when the adjacent land is level or approximately so and that which caused the injury is so far removed that a traveller in the exercise of ordinary care would not have been injured thereby, no duty to such traveller arises. Wright v. Southern Ry., 62 Ga. App. 316, 7 S.E.2d 793 (1940). No duty owed to users of highway regarding land not adjacent thereto. — The owner of land traversed by a public highway is under no duty to a traveler along the highway to maintain in a safe condition for travel the abutting premises at a point such a distance from the highway that it cannot be reached by the ordinary deviations from the highway incident to careful traveling thereon, but can only be reached by a traveler who has, negligently and in a manner oblivious of his own safety, completely abandoned the highway and gone over onto the abutting premises. Williamson v. Southern Ry., 42 Ga. App. 9, 155 S.E. 113 (1930). Gate in wildlife area. — The construction of a covered cable gate to divide 51-3-1 a Wildlife Management Area from a Wildlife Refuge Area was a static condition on the premises in question. As such, the landowners owed a trespasser who was injured in a motorcycle accident involving the gate a duty not to wilfully or wantonly injure the trespasser. Trammell v. Baird, 262 Ga. 124, 413 S.E.2d 445 (1992). Abandoned well. — While the landowners were told about an abandoned well on their property, they did not know where the well was, and nothing indicated where the well was; further, nothing indicated that the well was defectively covered rather than filled, and thus the landowners had no duty to inspect the property to locate the well or to inform an invitee of its existence. Sisson v. Elliott, 278 Ga. App. 156, 628 S.E.2d 232 (2006). Apartment house owner required to maintain common areas. — While the duties of the owner of an apartment house who reserved a qualified right of possession of the halls, steps, porches, or other parts of the building of which common use was made by the tenants were as set out in former Code 1933, § 105-401 (see now O.C.G.A. § 51-3-1), and render the owner liable for injuries occasioned by the owner’s failure to exercise ordinary care in keeping the premises and approaches safe, as to an owner and landlord who fully parts with possession of the premises, the liability was as provided in former Code 1933, § 61-112 (see now O.C.G.A. § 44-7-14) and related only to injuries occasioned by defective construction or failure to keep the premises in repair when there was a duty to repair and notice had been given of the defect. Maloof v. Blackmon, 105 Ga. App. 207, 124 S.E.2d 441 (1962). No liability of condominium association to visitor. — Trial court properly granted summary judgment to a condominium association with regard to a visitor’s negligence suit following an injury in a revolving door because the visitor failed to show that the door malfunctioned in any manner and, absent evidence of a defect in addition to a fall, the association had no liability to support a finding that the association had superior knowledge that the revolving doors were a hazard to the visitor. Siegel v. Park Ave. Condo. 390 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND Ass’n, 322 Ga. App. 337, 744 S.E.2d 876 (2013). Condominium association had no contractual duty to remove snow and ice. — Trial court properly granted a condominium association summary judgment in a premises liability action because interpreting the condominium association documents established that the association did not have a duty to remove snow and ice from the common walkway where the resident fell. Scrocca v. Ashwood Condominium Ass’n, 326 Ga. App. 226, 756 S.E.2d 308 (2014). Determination of common area as jury question. — The question of whether a particular area of an apartment building—i.e., a patio deck behind an apartment, from which a tenant fell after the railing gave way—was a common area over which the landlord retained a qualified right of possession, rendering the landlord liable for failure to exercise ordinary care in keeping the premises safe, or was an area which was in the exclusive possession of the tenant, rendering the landlord liable for failure to repair in the face of a notice of defect, was a matter for determination by the trier of fact, and the court properly instructed the jury as to both legal theories. Andres v. Roswell-Windsor Village Apts., 777 F.2d 670 (11th Cir. 1985). Control of property relinquished. — Facts of the case established that the United States, through its agency of Housing and Urban Development, had relinquished possession and control of the house where the plaintiff ’s son was injured, to an independent contractor, and that the United States, therefore, was not liable for any negligent failure to maintain the property in a safe condition. Tisdale v. United States, 838 F. Supp. 592 (N.D. Ga. 1993), aff ’d, 62 F.3d 1367 (11th Cir. 1995). A property owner can delegate the responsibility of maintaining a safe workplace by relinquishing possession and control of the property to an independent contractor. Torrington Co. v. Hill, 219 Ga. App. 453, 465 S.E.2d 447 (1995). Nothing prohibited a landlord from assigning by contract the landlord’s duty to repair and maintain the premises. Rainey 51-3-1 v. 1600 Peachtree, L.L.C., 255 Ga. App. 299, 565 S.E.2d 517 (2002). In a premises liability action filed by a repairman arising from injuries suffered while repairing a roof, because the trial court properly found that an out-of-possession landlord and its tenants who surrendered control of the owned premises did not ratify the repairman’s employer’s actions in not providing safety equipment, and did not have superior knowledge of the dangers involved, the out-of-possession landlord and its tenants were properly granted summary judgment in the repairman’s premises liability action. Saunders v. Indus. Metals & Surplus, Inc., 285 Ga. App. 415, 646 S.E.2d 294 (2007), cert. denied, 2007 Ga. LEXIS 624 (Ga. 2007). The owner of an apartment building where an invitee was injured when a breezeway railing broke was not entitled to summary judgment on the theory that the owner was not liable for the negligent acts of the independent contractors who installed or inspected the railing during a renovation project; the owner had a nondelegable duty to keep its premises safe for the invitee and a material fact question existed as to whether the owner had given full and complete control to the independent contractors such that the owner was relieved of its duty to the invitee. Carpenter v. Sun Valley Props., LLC, 285 Ga. App. 1, 645 S.E.2d 35, cert. denied, 2007 Ga. LEXIS 563 (Ga. 2007). Liability when clubhouse reserved. — Party guest, who was injured when the guest dove into a swimming pool adjacent to a condominium clubhouse, was an invitee, not a mere licensee, of the condominium association’s premises, since the clubhouse had been reserved by a condominium homeowner on behalf of the party host. Plantation at Lenox Unit Owners’ Ass’n v. Lee, 196 Ga. App. 420, 395 S.E.2d 817 (1990). Lessees entitled to summary judgment as to tree trimmer’s claims. — Trial court erred in denying the lessees’ motion for summary judgment on the tree trimmer’s premises liability claim as well as the spouse’s derivative claim for loss of consortium because the tree trimmer nor the spouse offered any evidence that the 391 Home, Apartment, and Landowners (Cont’d) lessees disturbed the ladder before the ladder collapsed and the lessees unequivocally denied touching the ladder, thus, to say the lessees caused the ladder to fall would be mere conjecture. Barclay v. Stephenson, 337 Ga. App. 365, 787 S.E.2d 322 (2016). Apartment management may be liable for torts of servants. — Petition alleging that the plaintiff was maliciously shot and injured by the janitor of an apartment house while the plaintiff was present in the house as the guest of a tenant, the janitor, within the knowledge of the defendants (security deed holder and managing agents), being a man of vicious and dangerous character, having a propensity to assault and injure others without cause, and that the defendants were negligent in retaining the janitor as such employee after knowledge of this trait, is sufficient to state a cause of action against the defendants. Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 193 S.E. 347 (1937). Apartment owner’s liability for crimes of others. — After the plaintiff tenant was beaten, robbed, and raped in her apartment by an intruder, fact issues precluded summary judgment for the defendant apartment owner in her action alleging that the defendant failed to keep its premises reasonably safe by providing adequate security. Doe v. Briargate Apts., Inc., 227 Ga. App. 408, 489 S.E.2d 170 (1997). In an action by an apartment tenant who was the victim of robbery, assault, and threatened rape in her apartment, evidence of prior criminal acts of robbery and assault on the premises gave rise to a triable issue of fact as to whether the apartment owner and manager failed in their duty to exercise ordinary care to safeguard tenants against foreseeable risks. Walker v. St. Paul Apts., Inc., 227 Ga. App. 298, 489 S.E.2d 317 (1997). Trial court properly granted summary judgment to an apartment complex owner, and against the decedent’s personal representative, in the latter’s premises liability action against the former, as: (1) evi- 51-3-1 dence was lacking that the vacant apartment where the decedent was murdered was negligently left unlocked; and (2) despite the criminal history of the area where the apartment was located, the owner had no reasonable belief to anticipate that a murder would have occurred on its premises; moreover, guesses or speculation which raised merely a conjecture or possibility were insufficient to create even an inference of fact for consideration on summary judgment. Wojcik v. Windmill Lake Apts., Inc., 284 Ga. App. 766, 645 S.E.2d 1 (2007), cert. denied, 2007 Ga. LEXIS 637 (Ga. 2007). Lessor entitled to summary judgment. — In a wrongful death action filed by a decedent-lessee’s administrator in which the decedent was killed when crossing a public highway that the lessor did not control, the lessor was properly granted summary judgment, as the administrator failed to show that the lessor was negligent per se or that the lessor breached either a common law or private duty owed to the lessee. Walton v. UCC X, Inc., 282 Ga. App. 847, 640 S.E.2d 325 (2006). Decedent’s own actions led to dangerous situation. — An apartment complex and its property manager were erroneously denied summary judgment in a wrongful death action filed against them by the decedent’s estate, as neither defendant had superior knowledge that a criminal act would be committed on the premises, and because the decedent’s own actions led to the dangerous situation regarding apprehension by bail bondsmen as the decedent failed to exercise ordinary care under the circumstances. Gateway Atlanta Apts., Inc. v. Harris, 290 Ga. App. 772, 660 S.E.2d 750 (2008). Newspaper advertisement not necessarily invitation to inspect apartment. — Advertisement in a Sunday newspaper, headed ‘‘Apartments — Unfurnished,’’ followed by a list of certain apartments at given addresses, together with brief description and prices, under which appeared the words, ‘‘Draper-Owens Co., Realtors,’’ ‘‘521 Grant Bldg.,’’ and ‘‘Wa 9511,’’ was free from ambiguity, and, properly construed, did not constitute an invitation, express or im- 392 51-3-1 LIABILITY OF OWNERS/OCCUPIERS OF LAND plied, to the public to inspect any of the premises, but was merely a notice that the listed apartments were available for leasing at named rentals, inviting any interested person to communicate with the advertiser. Mortgage Comm’n Servicing Corp. v. Brock, 60 Ga. App. 695, 4 S.E.2d 669 (1939). Liability for acts of employees. — Under O.C.G.A. § 51-3-1, a landowner can be liable for third-party criminal attacks if the landowner has reasonable grounds to apprehend that such a criminal act would be committed but fails to take steps to guard against injury. Constructive knowledge of danger is sufficient to establish liability; a series of unforced entries and burglaries since a certain employee was hired by an apartment complex, the complex’s knowledge that residents suspected an employee, and the fact that the employee was discovered in an apartment without authorization was sufficient to defeat a directed verdict motion on a claim against the complex after an individual was attacked and killed by an employee of the complex. TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 590 S.E.2d 807 (2003). Apartment complex leasing agent. — Because a minor child was bitten by another tenant’s dog, an action by the parent of the child against the owner of the apartment complex and its leasing agent resulted in summary judgment against the parent, as the out-of-possession landlord’s only liability to third persons was that of O.C.G.A. § 44-7-14, which was inapplicable; there was no showing that either the owner or agent had any type of knowledge of the dog’s propensities or viciousness, and the agent was therefore not shown to be liable on any claim arising under O.C.G.A. § 51-3-1. Griffiths v.