Opinion
46301.
ARGUED JUNE 2, 1971.
DECIDED OCTOBER 8, 1971. REHEARING DENIED NOVEMBER 4, 1971.
Action for damages. Richmond Superior Court. Before Judge Kennedy.
Fulcher, Fulcher, Hagler, Harper Reed, William C. Reed, for appellant.
George B. Rushing, for appellees.
The trial judge correctly denied the motion for summary judgment since the proof offered failed to establish as a matter of law that the defendant was not liable for wilful and wanton negligence.
ARGUED JUNE 2, 1971 — DECIDED OCTOBER 8, 1971 — REHEARING DENIED NOVEMBER 4, 1971.
Randy Dean Johnston, a minor, by his next friend, George D. Johnston, Jr., and George D. Johnston, Jr., individually, filed their complaint in Richmond Superior Court, against Michael H. Whittle seeking to recover damages for injuries sustained by the plaintiff, Randy Dean Johnston. The complaint generally alleges that on March 26, 1970, on the premises occupied by the defendant, the plaintiff, Randy Dean Johnston, suffered an injury to his left arm; that he was an invitee on the premises and on a "Trampoline" or jumping device owned by and under the care of the defendant whose minor daughter had invited him to come on the premises and jump on the trampoline with the consent and knowledge of the defendant but without any adult supervision; that on the date and time alleged, the plaintiff, without supervision or instruction, being wholly unfamiliar with the trampoline, attempted to jump on the same in the usual manner but because it was not properly placed on level ground it caused him to be thrown from the trampoline to the ground resulting in the alleged injuries and damages; that said damages were caused proximately by the negligence of the defendant in failing to exercise ordinary care for the safety of the minor plaintiff.
The defendant, by his answer, admitted that the plaintiff, Randy Dean Johnston, suffered an injury while on the premises and on the trampoline or jumping device owned by the defendant but denied the remaining material allegations of the complaint. Thereafter, an amendment was filed to the petition which alleged in general that the defendant and his wife were at home and inside the house, out of sight of the trampoline located in their open, unfenced backyard knowing full well that their children had gone outside to jump and play on the trampoline with other small children whom they had invited to jump with them including the minor plaintiff; that the defendant was aware of the presence of the small children and their use of the trampoline, that the use of the trampoline by the small children without any supervision exposed them to unreasonable risk of injury; that the trampoline under the circumstances, was an attractive nuisance and dangerous instrumentality and the defendant was wilful and wanton in failing to exercise ordinary care to prevent injury to the minor plaintiff.
Based on answers to interrogatories and affidavits of defendant and his wife, the defendant filed a motion for summary judgment. The plaintiffs, George Johnston and Randy Dean Johnston, filed their affidavits in opposition to the motion.
The interrogatories addressed to Randy Johnston brought out that he had used the trampoline about 6 times before he had been hurt; that he did not have his father's permission to use the trampoline; that he did not know of any changes made on the trampoline; that he jumped on the trampoline in accordance with the instructions of the defendant's daughter and was bounced or thrown away from such trampoline because it was not placed on level ground, was defective and dangerous, which fact was unknown to him.
The plaintiff, George Johnston, related in his affidavit that he had no prior knowledge of his son's jumping on the trampoline; that he did not give his permission or consent for him to jump on the trampoline. The plaintiff, Randy Johnston, testified that he was invited by the daughter of the defendant to play on the trampoline; that he had jumped on it only a couple of times before; that the ground was not level where it was placed.
The defendant's wife stated in her affidavit that Randy Johnston asked that they allow him to play on the trampoline; that she required that he obtain his parent's permission and that he brought back a written permission from his mother; that he had jumped on the trampoline 3 or 4 times a week from February to May when he was injured; that no other children had been injured on the trampoline.
The defendant in answer to interrogatories stated that the plaintiff, Randy Johnston, was given instructions and warnings with regard to the trampoline that no more than 1 child could jump and turn flips, that no "horse play" would be permitted; that he did not know how often Randy Johnston jumped but it was not infrequently; that at the time of the incident several children, including Randy Johnston, were in the yard playing and that defendant then was informed by his daughter that Randy Johnston had fallen from the trampoline; that neither he nor his wife saw the incident take place; that he did not know that Randy Dean Johnston was on the premises prior to the incident; that the trampoline was readily accessible to children and his friends and that Randy Dean Johnston was never invited by anyone in the family to jump, but neither was he ever forbidden to come into the yard; that children played on the trampoline practically every day.
After the hearing the trial judge overruled the defendant's motion for summary judgment and, upon a certificate of review under Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238) being entered, the defendant appeals to this court.
Both sides cite authority as to what the plaintiff, Randy Johnston's status was, that is, whether he was an invitee or a licensee. This court has apparently adopted the rule that an invited social guest is not an invitee but instead occupies the status of a licensee. See Stanton v. Grubb, 114 Ga. App. 350 ( 151 S.E.2d 237); Handiboe v. McCarthy, 114 Ga. App. 541 ( 151 S.E.2d 905); Laurens v. Rush, 116 Ga. App. 65 ( 156 S.E.2d 482).
Since the appellant concedes that the plaintiff, Randy Johnston, is at least a licensee, for the purposes of this decision we assume but do not decide that to be his status. The owner or occupier of premises may not wilfully or wantonly injure a licensee. "Since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated." MacKenna v. Jordan, 123 Ga. App. 801 (2) ( 182 S.E.2d 550). See Banks v. Watts, 75 Ga. App. 769, 772 ( 44 S.E.2d 510); Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643, 648 ( 49 S.E.2d 143). In Patterson v. Thomas, 118 Ga. App. 326, 328 ( 163 S.E.2d 331), this court held: "A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved." "The defendant, having made the motion for summary judgment, must produce evidence which conclusively negates at least one essential element entitling plaintiff to a recovery under every theory fairly drawn from the pleadings and the evidence." Werbin Tenenbaum, Inc. v. Heard, 121 Ga. App. 147 (2) ( 173 S.E.2d 114).
It is urged that the plaintiff's testimony as to his past knowledge or use of the trampoline is contradictory. Be that as it may the Supreme Court has held in Burnette Ford v. Hayes, 227 Ga. 551 ( 181 S.E.2d 866), that the testimony of a party opposing a motion for summary judgment is to be given a favorable construction. The proof offered on the motion for summary judgment failed to establish as a matter of law that the defendant was not guilty of wilful and wanton negligence. Hence, the issue of whether defendant exercised the necessary degree of care and whether the trampoline alleged to be on unlevel ground constituted a hidden peril or pitfall would be for the jury. See MacKenna v. Jordan, 123 Ga. App. 801, supra.
It is also urged that the mother's written consent would bar the parents from recovery. However, it is well established that the negligence on the part of a parent cannot be imputed to the child. Fallaw v. Hobbs, 113 Ga. App. 181, 182 ( 147 S.E.2d 517); Ferguson v. Columbus Rome R., 77 Ga. 102; Herrington v. Mayor c. of Macon, 125 Ga. 58, 61 ( 54 S.E. 71); Code § 105-205. Moreover, the father was the legal custodian of the child; thus the mother's independent consent will not be imputed to him so as to bar his right to recover. Sarman v. Seaboard A.-L. R. Co., 33 Ga. App. 315, 318 ( 125 S.E.2d 891); Atlanta Charlotte A.-L. R. Co. v. Gravitt, 93 Ga. 369 (3) ( 20 S.E. 550, 26 LRA 553, 44 ASR 145); Crook v. Foster, 142 Ga. 715, 719 ( 83 S.E. 670).
The trial judge did not err in denying the motion for summary judgment.
Judgment affirmed. Jordan, P. J., and Evans, J., concur.