SIMMONS et al.
UNIVERSAL PROTECTION SERVICES, LLC et al.
MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
Mrs. Matthew and Donna Simmons (the "Simmonses")
appeal from the State Court of Fulton County's grant of
summary judgment in favor of Redredra Cody ("Cody")
and Universal Protection Service, LLC ("UPS")
(collectively the "defendants"). On appeal, the
Simmons argue that the trial court erred in granting summary
judgment to the defendants because they were negligent in
creating and maintaining a tripping hazard that caused Donna
Simmons to fall and break her hip. We affirm the trial
judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law." OCGA § 9-11-56 (c). Our review of a trial
court's ruling on a motion for summary judgment is de
novo, and we review the evidence, and all reasonable
inferences, in the light most favorable to the nonmovant.
Green v. Raw Deal, Inc., 290 Ga.App. 464, 465 (659
S.E.2d 856) (2008).
viewed, the evidence shows that the Simmons went to
AmericasMart on January 2, 2015, to purchase a gift for a
friend. As they entered the Mart, they proceeded to the
second floor guest registration counter to get their security
badges. They then proceeded to the security area, where they
were required to show their badges to the security officer.
As Donna Simmons rounded the corner to go through the
security checkpoint, her shoe caught the edge of a rubber mat
that was under the checkpoint table and she fell. She
immediately noticed pain in her left hip. She stated she
never saw the mat until after she fell. In her deposition,
Donna Simmons was shown a photograph of the mat taken by her
husband after her fall, and she identified that the mat was
curled up on the edges. Following the accident, Donna Simmons
underwent hip replacement surgery, and physical therapy. As
of December 2015, Donna Simmons's medical expenses
exceeded $100, 000.
one year prior to the accident, UPS entered into a contract
with AMC, Inc. ("AMC") to provide security
services. Exhibit A of the agreement, entitled
"Statement of Work," provides that UPS is "to
provide trained security protection services for the
protection of all persons and personal and real
property," and to "[e]nsure that prompt action is
taken to prevent or minimize losses, accidents, fires,
property damage, safety hazards, and security
incidents." The contract also specifies that UPS is an
Cody was employed by UPS as a security officer and was
working the desk the day of the accident. She stated in her
deposition that the security checkpoint consisted of a table
and chair, which AMC would sometimes move around during a
show, and a black floor mat. Officer Cody stated that she was
standing behind the table and to the side of it when Donna
Simmons approached the security checkpoint, and she noticed
Donna Simmons walking with a limp and dragging her foot. Part
of the mat was close to the table and part was hanging out
from under it. Cody did not actually see Donna Simmons trip
on the mat, but she saw her falling to the ground.
Simmons filed suit against AMC, Inc., the corporation
responsible for managing AmericasMart, stating claims for
respondeat superior, negligence, and negligent failure to
keep the premises safe for business invitees pursuant to OCGA
§ 51-3-1. The Simmons also filed a related action
against Cody individually and as an employee of UPS, which
was later consolidated with the pending action against AMC.
Cody filed a motion for summary judgment, arguing, generally,
that they are not the owners or occupiers of AmericasMart,
and therefore, they owed no duty to the Simmons; the Simmons
do not have standing to bring a claim under the contract
between AMC and UPS because they are not third-party
beneficiaries of the contract; and that no facts support
AMC's claim for indemnification. AMC did not move for
summary judgment. The trial court granted UPS and Cody's
motion, finding that, as independent contractors, Cody and
UPS did not owe the Simmons any duty because the Simmons were
invitees of AMC, and UPS did not have control over the mat or
its placement. It also found that the Simmons could not hold
Cody and UPS liable under the contract between AMC and UPS
based on a third-party beneficiary theory. This appeal
Simmons argue that, even though UPS did not own the premises
where Donna Simmons's injury occurred, UPS nevertheless
owed her and other invitees a duty of care because it
undertook an express contractual duty to keep the premises
safe for invitees. Thus, Donna Simmons was a third-party
beneficiary under the contract and can maintain an action
against UPS and Cody. We disagree and conclude that Cody and
UPS owed no duty to Donna Simmons.
Where an owner or occupier of land, by express or implied
invitation, induces or leads others to come upon his premises
for any lawful purpose, he is liable in damages to such
persons for injuries caused by his failure to exercise
ordinary care in keeping the premises and approaches safe.
OCGA § 51-3-1. We have explained that the business
owner's duty to its invitees is "nondelegable."
(Citation and punctuation omitted.) R & S Farms, Inc.
v. Butler, 258 Ga.App. 784, 786 (575 S.E.2d 644) (2002).
The owner cannot insulate itself from liability by hiring an
independent contractor. Id. Further, the duty
imposed upon an owner or occupier of land by OCGA §
51-3-1 is inapplicable to an independent contractor." In
this case, there is no evidence in the record that either UPS
or Cody owned or occupied the AmericasMart where Donna
Simmons fell. Likewise, there is no evidence in the record
that the Simmons were invitees of either UPS or Cody; rather,
they were the invitees of AMC. Thus, OCGA § 51-3-1
imposes no statutory duty upon UPS or Cody to inspect the
premises to keep it safe for invitees, such as the Simmons.
Id. at 786.
addition, the contract between UPS and AMC did not create a
duty because it was not intended to protect the ...