Biggs Et Al. v. Brannon Square Associates., 174 Ga. App. 13, 329 S.E.2d 239 (1985)
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Summary
Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.
Summary
Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.
Text
Appellee-defendant is the owner of property on which a shopping center is located. There is also a shopping center on the property which adjoins appellee's. This adjacent property is owned by Roswell Associates, which is a defendant below but not a party to the instant appeal. Appellee's property has a higher elevation than that which belongs to Roswell Associates, with the line between the two properties running along the length of a 54-foot embankment. Appellee owns the upper 37 feet of the embankment and Roswell Associates owns the lower 17 feet. At the top and bottom of the embankment are paved parking areas. The embankment has been unimproved by either appellee or Roswell Associates.
On June 28, 1981, appellant-plaintiff Patrick Biggs was approximately fourteen and one-half years old. On that day, he and a friend rode bicycles to the area where the two shopping centers are located. According to appellant, he and his friend rode their bikes around the parking lot on Roswell Associates' property. Then appellant pushed his bike up the embankment, along a pathway that had developed by pedestrian use of the embankment as a shortcut between the two shopping centers. Appellant had never before ridden his bike down the embankment. On this day, he did. Three upright concrete culverts had been placed on the pathway at the bottom of the embankment on Roswell Associates' property. These culverts did not present an absolute impediment to a bicyclist riding down the embankment, however, and appellant merely steered around them. Since the bottom of the embankment coincided with the edge of the parking lot on Roswell Associates' property, appellant rode his bicycle off of the end of the path into the parking lot itself. In the parking lot, appellant crashed into the side of a moving vehicle. As the result of this collision, appellant sustained extensive physical injuries.
Appellant and his parents instituted the instant action against three defendants: appellee; Roswell Associates; and the driver of the vehicle. Insofar as they are relevant here, the allegations of the complaint were as follows: that the pathway down which appellant had ridden had, for a long period, been used as a bike trail, that this use of the pathway by bicyclists was known to the two adjoining property owners; that the placement of the three large culverts as an ostensible barrier at the bottom of the embankment evidenced a recognition of the danger associated with this use of the pathway; that the culverts actually rendered the pathway more attractive to young bicyclists by forming a type of obstacle course for them to challenge; and that the danger to users of the path as a bike trail was or should have been anticipated.
Appellee's answer denied the material allegations of the complaint, including the existence of a pathway on the embankment, as well as its knowledge that the path was being used for bike riding. After discovery, appellee moved for summary judgment, asserting that it owed appellant no duty the breach of which had caused his injury. In opposition to appellee's motion, appellant filed numerous affidavits of individuals who had observed, over some period, that a pathway existed on the embankment and that it was used by bicycle riders. A hearing was conducted and appellee's motion for summary judgment was granted. Appellants, Patrick Biggs and his parents, appeal.
1. Appellants put great reliance upon Gregory v. Johnson,
Appellants' reliance upon the theory of attractive nuisance is misplaced. The distinction recognized in Nesmith v. Starr, supra, is still recognized today. The theory of attractive nuisance is that "[a] possessor of land is subject to liability for physical harm to children trespassing thereon . . . ." (Emphasis supplied.) Gregory v. Johnson, supra at 154. The evidence, construed most strongly against appellee, demonstrates that, in using the pathway, appellant was a licensee rather than a trespasser. "There was sufficient evidence to authorize [a] jury to find that the path had been so long used by the public as a passageway over the land that the owner must have known that it was so used and have impliedly consented to its use." Etheredge v. Central of Ga. R. Co.,
On the other hand, under the evidence of record, appellants might be at a disadvantage were the attractive nuisance theory the sole basis upon which to assert appellee's liability. As enunciated by the Supreme Court, that theory expressly imposes liability only for physical harm to trespassing children which is "caused by an artificial condition upon the land . . . ." (Emphasis supplied.) Gregory v. Johnson, supra at 154. The theory clearly does not apply to natural water conditions which exist on private property. See generally Wren v. Harrison,
The alleged dangerous condition in the instant case is the existence on appellee's property of one end of a natural footpath, which leads down an embankment where lateral visibility is obscured, into the adjoining property, up to the culverts and then ending at the edge of Roswell Associates' parking lot. The evidence of record demonstrates that none of these characteristics of the pathway was latent or was concealed from appellant. As noted above, appellant testified that he first rode around the lower parking lot and then pushed his bike up the path to the top of the embankment on appellee's property. Appellant agreed that "[w]hen [he] came down the hill, [he knew he was] going back out into the parking lot on the street . . . ." (Emphasis supplied.) Appellant also knew that there were trees along the side of the path. Although he apparently did not know from standing at the top that, on his way down, the trees would block his view of the parking lot to the left, he did know that "there was more parking lot down to [his] left . . . ." He also "knew that cars were around the parking lot down to [his] left." The only thing that appellant did not know about the actual outcome of his impending ride was that the cars in the parking lot "would be coming right by the end of the trail." However, the possibility of encountering vehicular traffic anywhere in an area specifically designed and designated for automobiles and the threat created to bicyclists by moving vehicles are risks which one of appellant's age is "[m]anifestly . . . fully capable of appreciating . . . ." Jordan v. Wiggins,
The evidence, even when construed most strongly against appellee, would not authorize a finding that a bicyclist of appellant's age, who stood at the top of the path after having walked up it, would fail to realize and appreciate the full extent of the risk of coasting back down into the adjoining parking lot at an unrestrained speed. Under the evidence, the end of the path on appellee's property was not, as to appellant, the entrance way into a mantrap with an undetectable and unavoidable danger awaiting at the other end on the adjoining property. The record demonstrates that appellant's decision to coast back down the pathway was not unlike the decision of the plaintiff in Pries v. Atlanta Enterprises,
George E. Duncan, Jr., Robert P. Bleiberg, for appellee.
1985
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This document cites
- Supreme Court of Georgia - GREGORY et al. v. JOHNSON et al., 249 Ga. 151, 289 S.E.2.d 232 (1982)
- Supreme Court of Georgia - LONDON IRON & METAL COMPANY, INC. et al. v. ABNEY., 245 Ga. 759, 267 S.E.2.d 214 (1980)
- Georgia Court Of Appeals - Wren v. Harrison Et Al., 165 Ga. App. 847, 303 S.E.2d 67 (1983)
- Georgia Court Of Appeals - Patterson v. Thomas., 118 Ga. App. 326, 163 S.E.2d 331 (1968)
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