52 The Court of Appeals has repeatedly held that the duty imposed upon an owner or occupier of land by OCGA § 51-3-1 is non-delegable. See Camelot Club , 340 Ga. App. at 627 (2) (b), 798 S.E.2d 241 ; Davidson v. Meticulously Clean Sweepers, LLC , 329 Ga. App. 640, 643 (1), 765 S.E.2d 783 (2014) ; FPI Atlanta, LP v. Seaton , 240 Ga. App. 880, 886 (5) (a), 524 S.E.2d 524 (1999) (physical precedent only); Johnson v. Kimberly Clark , 233 Ga. App. 508, 510, 504 S.E.2d 536 (1998) ; Griffin v. AAA Auto Club South, Inc. , 221 Ga. App. 1, 2 (1), 470 S.E.2d 474 (1996). But this means only that an owner "will not be excused from liability for an injury occurring on his property unless he delivered full possession and complete control of the premises to a third party."

More recently, we considered if there was any evidence of the defendant’s negligence before considering whether any of the subsections applied. See Davidson v. Meticulously Clean Sweepers, 329 Ga. App. 640, 644-646 (2), 765 S.E.2d 783 (2014) (considering first whether the defendant was negligent, then applying Section 324A). This approach is consistent with the analysis set out in other states.

(Citations and punctuation omitted.) Davidson v. Meticulously Clean Sweepers, LLC , 329 Ga. App. 640, 643 (1), 765 S.E.2d 783 (2014), quoting Anderson , 273 Ga. at 117-118 (4), 537 S.E.2d 345. Here, the language of the contract between Pateco and DDR required Pateco to report to DDR any problems or defects observed while maintaining the parking lot and to do so "in a manner which will minimize health, safety, legal[,] and other risks to Owner, and its respective employees, agents, guests[,] and invitees."

(Citations and punctuation omitted; emphasis in original.) R & S Farms, Inc. , 258 Ga. App. at 786-787, 575 S.E.2d 644 ; see also Davidson v. Meticulously Clean Sweepers, LLC , 329 Ga. App. 640, 643 (1), 765 S.E.2d 783 (2014). The Simmonses rely on the following language in the contract to establish their status as intended beneficiaries:

(Citation and punctuation omitted.) Davidson v. Meticulously Clean Sweepers, LLC, 329 Ga. App. 640, 645 (2), 765 S.E.2d 783 (2014). Nor does the mere existence of black ice at the spot where Hall fell prove that St. Joseph's was negligent in its exercise of its de-icing duties.

(Citation and punctuation omitted.) Davidson v. Meticulously Clean Sweepers, LLC, 329 Ga. App. 640, 645 (2) (765 SE2d 783) (2014). Nor does the mere existence of black ice at the spot where Hall fell prove that St. Joseph's was negligent in its exercise of its de-icing duties.

Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 322 S.E.2d 269 (1984); Huggins, 245 Ga. at 248, 264 S.E.2d 191; BP Exploration & Oil, Inc. v. Jones, 252 Ga. App. 824, 558 S.E.2d 398 (2001). Davidson v. Meticulously Clean Sweepers, Inc., 329 Ga. App. 640, 644-45, 765 S.E.2d 783 (2014); Taylor v. AmericasMart Real Estate, 287 Ga. App. 555, 559-60, 651 S.E.2d 754 (2007). Second, the Georgia cases cited by the City of Jacksonville court for the proposition that § 324A does not require a showing of physical harm do not explicitly reference § 324A in any way.

And although the Court can find no Indiana cases directly on-point, at least two other jurisdictions have expressly held that duties owed to business invitees are non-delegable. See Davidson v. Meticulously Clean Sweepers, LLC, 765 S.E.2d 783, 785 (Ga. Ct. App. 2014); Norris v. Ross Stores, Inc., 859 A.3d 266, 273 (Md. Ct. App. 2004) ("The duty imposed by law upon the defendant, as the owner and occupier of the premises, for the reasonable protection of its invitee, is not performed by an attempted delegation of it to a third party. It is a non-delegable duty, arising from the proprietor's control of the premises.").