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Georgia Appellate Court Allows Plaintiff to Proceed Against a Maintenance Company

Generally, a business owner owes a nondelegable duty of care to an invitee for the purposes of a Georgia premises liability case. However, this nondelegable duty  is inapplicable to an independent contractor. In a recent Georgia appellate decision, the plaintiff claimed that a company was responsible for reporting dangers in a common area where he fell in an open water meter and thereby spilled hot oil on himself. The plaintiff was told to drain hot oil from a fryer at the restaurant where he worked. There was a problem with the filtration system inside the restaurant, and so the plaintiff drained the oil into a vessel and took it out of the restaurant and into the shopping mall where the restaurant was located.

In the back lot, he stepped into an uncovered water meter opening. He spilled the oil onto himself and suffered third degree burns on his body and face. He sued the restaurant, its owners, and the property owners on a theory that the defendants had failed to appropriately inspect and maintain the premises. One of the property owners filed a third party complaint against another company claiming it was responsible for maintaining the common area of the shopping center based on a service agreement. The plaintiff amended his complaint to add a claim against the company.

The lower court granted summary judgment to the plaintiff’s employers since workers’ compensation barred his lawsuit. His claims against the property owner stayed pending. The property owner had entered into a contract with a company to sweep the grounds of the shopping mall and report problems. The agreement specified that even if the company adhered to special instructions, they wouldn’t relieve him of the sole responsibility to keep safe and efficient conditions at the property. The company agreed it was familiar with performing all the work necessary to fully adhere to the agreement and would assume responsibility and liability for all services.

The plaintiff claimed that under the contract, the company undertook to give warnings about dangers on the property and this duty was owed to him and other invitees to the property. The lower court determined that the contract wasn’t ambiguous, but the company had only undertaken to safely sweep the parking lot. It found that the company hadn’t owed and breached a duty to the plaintiff under the contract.

The plaintiff argued on appeal that he was a third party beneficiary to the contract, and the company had a duty to him. Generally, an injured plaintiff can’t recover as a third party beneficiary for failure to enact a duty set forth in a contract unless it is evidence from the agreement’s language that the contracting parties intended to give a benefit to the plaintiff to keep him from getting injured.

The appellate court reasoned that in the contract the parties specifically identified invitees to the property as beneficiaries of the company’s services. There was no exclusion. Accordingly, it found that the lower court had erred in granting summary judgment based on the contractual language. It also agreed with the plaintiff that there were material factual issues about whether the company breached its contractual duty by not warning about the damaged water meter cover, whether the plaintiff had superior knowledge of the open water meter cover and whether the plaintiff had failed to use reasonable care for his safety by taking the oil out to the parking lot. The judgment was reversed.

If you were harmed due to a hazard on somebody else’s property, premises liability attorney Stephen M. Ozcomert may be able to assist you in recovering damages. Mr. Ozcomert has more than 20 years of experience representing injured clients in Atlanta and throughout Georgia. Call us today at (404) 370-1000 to schedule a free initial consultation, or you can reach us through our website.

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