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Simmons v. Universal Protection Services, LLC

Court of Appeals of Georgia, Fifth Division

March 12, 2019

SIMMONS et al.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          MARKLE, JUDGE.

         Mr. and 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 court's ruling.

         "Summary 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).

         So 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.

         Approximately 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 independent contractor.

         Officer 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.

         The 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.[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.

         UPS and 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.[2] This appeal followed.

         1. The 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.

         As a general rule,

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.

         In addition, the contract between UPS and AMC did not create a duty because it was not intended to protect the ...

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