Higginbotham v. Winborn (1975)

Courts have distilled the distinction between invitee and licensee as follows: “The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both[.]” Robinson v. Turner, 297 S.E.2d 522, 524 (Ga. Ct. App. 1982) (quoting Higginbotham v. Winborn, 218 S.E.2d 917, 920 (Ga. Ct. App. 1975)).

(Citations and punctuation omitted; emphasis supplied.) Higginbotham v. Winborn, 135 Ga.App. 753, 755 (1), 218 S.E.2d 917 (1975); see also OCGA § 51-3-2(a)(3) (defining licensee as someone "permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification").

Higginbotham v. Winborn, 135 Ga. App. 753, 757 (2) ( 218 SE2d 917 ) (1975).

OCGA § 51-3-1. “ ‘The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises .... [Cits.]’ ” Higginbotham v. Winborn, 135 Ga. App. 753, 755 ( 218 SE2d 917 ) (1975).

Higginbotham v. Winborn, 135 Ga. App. 753, 756 ( 218 SE2d 917 ) (1975); Poston v. Vanderlee, 144 Ga. App. 833 ( 242 SE2d 727 ) (1978); Odom v. Lee, 145 Ga. App. 304 ( 243 SE2d 699 ) (1978); Oliver v. City of Atlanta, 147 Ga. App. 790 ( 250 SE2d 519 ) (1978).

Id. (citing Higginbotham v. Winborn, 135 Ga.App. 753 , 218 S.E.2d 917, 921 (1975) (citing McCall v. McCallie, 48 Ga.App. 99 , 171 S.E. 843, 844 (1933))).

Co., 242 Ga. App. 669, 673 ( 530 SE2d 793 ) (2000). 9 Higginbotham v. Winborn, 135 Ga. App. 753, 757 (2) ( 218 SE2d 917 ) (1975). 10 The only deposition excerpts not filed with Barrow’s motion for summary judgment were those of two of the EMTs, who assisted in transporting Jones to the hospital after the accident.

While it is recognized that “ ‘children of tender years and youthful persons generally are entitled a degree of care proportioned to their ability to foresee and avoid the perils that may be . . . encountered,’ [cit.], this rule must be considered in the light of the fact that even young children have a natural fear of water, fire and heights (cit.). . . .” Higginbotham v. Winborn, 135 Ga. App. 753, 757 (2) ( 218 SE2d 917 ) (1975).

In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. [Cits.]’ [Cit.]” Higginbotham v. Winborn, 135 Ga. App. 753, 755 (1) ( 218 SE2d 917 ) (1975); see OCGA § 51-3-2 (a).

OCGA § 51-3-2; Stanton v. Grubb, 114 Ga. App. 350, 351 (1) ( 151 SE2d 237 ) (1966); Bryant v. Rucker, 121 Ga. App. 395 ( 173 SE2d 875 ) (1970); Higginbotham v. Winborn, 135 Ga. App. 753, 755 (1) ( 218 SE2d 917 ) (1975).

Bohn v. Beasley, 51 Ga. App. 341 ( 180 SE 656 ). ‘Where the injury for which a recovery is sought is caused by the dangerous statical condition of the premises, the injury to the licensee has to be occasioned by wilful and wanton negligence.’ ” Higginbotham v. Winborn, 135 Ga. App. 753, 756 ( 218 SE2d 917 ) (1975).

Higginbotham v. Winborn, 135 Ga. App. 753, 754 (1) ( 218 SE2d 917 ) (1975); Frankel v. Antman, 157 Ga. App. 26, 27 ( 276 SE2d 87 ) (1981).

In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. [Cits.]’ [Cit.]” Higginbotham v. Winborn, 135 Ga. App. 753, 755 ( 218 SE2d 917 ) (1975).

“A greater quantum of care, though not a greater degree of care, may be necessary where a child of tender years is involved and a dangerous thing exists on the premises.” Higginbotham v. Winborn, 135 Ga. App. 753, 756 ( 218 SE2d 917 ).

American Legion v. Simonton, 94 Ga. App. 184, 186 ( 94 SE2d 66 ) (1956). “[A]n ‘invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.’ ” Higginbotham v. Winborn, 135 Ga. App. 753, 754 ( 218 SE2d 917 ) (1975).

In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. [Cits.]’ ” Higginbotham v. Winborn, 135 Ga. App. 753, 755 ( 218 SE2d 917 ) (1975).

Barry v. Cantrell, 150 Ga. App. 439 (1) ( 258 SE2d 61 ) (1979); Higginbotham v. Winborn, 135 Ga. App. 753, 755 ( 218 SE2d 917 ) (1975); Haag v. Stone, 127 Ga. App. 235, 236 ( 193 SE2d 62 ) (1972); Goodwin v. Mullins, 122 Ga. App. 84, 85 ( 176 SE2d 551 ) (1970); Bryant v. Rucker, 121 Ga. App. 395 ( 173 SE2d 875 ) (1970); Patterson v. Thomas, 118 Ga. App. 326, 327 ( 163 SE2d 331 ) (1968); Laurens v. Rush, 116 Ga. App. 65, 67 (156 *28 SE2d 482) (1967); Stanton v. Grubb, 114 Ga.…

This evidence, considered in the light of the test for distinguishing invitees and licensees set forth in such cases as Higginbotham v. Winborn, 135 Ga. App. 753, 755 (1) ( 218 SE2d 917 ), and Cook v. Southern R.

Co., 53 Ga. App. 723, 725, 726 (187 SE 21 A).” Higginbotham, supra, p. 755.

See also Frankel v. Antman, 157 Ga. App. 26 ( 276 SE2d 87 ) (1981). "[I]t is usually wilful or wanton not to exercise ordinary care to prevent injuring a licensee who is actually known to be, or reasonably is expected to be, within range of a dangerous act being done. [Cit.] A greater quantum of care, though not a greater degree of care, may be necessary where a child of tender years is involved and a dangerous thing exists on the premises. [Cits.] `An owner owes to a licens…

Accord Higginbotham v. Winborn, 135 Ga. App. 753, 756 ( 218 SE2d 917 ); Central of Georgia R.

See Laurens v. Rush, 116 Ga. App. 65 ( 156 SE2d 482 ) and Higginbotham v. Winborn, 135 Ga. App. 753 ( 218 SE2d 917 ).