Atlanta Gas Light Co. v. Gresham

Benham, Justice.

Gresham and his parents sued their landlord and Atlanta Gas Light Company (hereinafter “AGLC”) for injuries suffered by Gresham when he tripped over the threshold while exiting, and fell from the steps of his family’s mobile home onto a pipe owned and maintained by AGLC. The trial court granted summary judgment to both defendants and the Court of Appeals reversed, holding as to the landlord that a question of fact existed with regard to compliance with a building code, and as to AGLC, that the principles of premises liability did not apply because AGLC was bound by a standard of care specific to its business of transporting natural gas. We granted certiorari to review the holding regarding the standard of care to be applied to AGLC.

1. The Court of Appeals relied on Bray v. Atlanta Gas Light Co., 46 Ga. App. 629 (168 SE 96) (1933), and Christo v. Macon Gas Co., 18 Ga. App. 454 (89 SE 532) (1916), for the proposition that AGLC was “bound to use such skill and diligence in its operations as is proportionate to the delicacy, difficulty, and nature of that particular business.” Id. at 455. Both of those cases, as well as Chisholm v. Atlanta Gas Light Co., 57 Ga. 28 (1876), which announced the standard applied by them, involved natural gas explosions which were alleged to have occurred due to the defendants’ negligence in operating their natural gas delivery systems. The standard of care enunciated in those cases was formulated to apply specifically to those operations of a natural gas supplier which directly involve its dangerous product. The present case, however, concerns not explosive gas but a static condition existing on a tract of real property. AGLC’s liability, therefore, should be measured not by the standard of care peculiar to the special nature of its operations, but by the standard which would be applied to anyone who owned and maintained a structure such as that on which Gresham was injured.

2. AGLC has contended throughout this litigation that the proper standard to apply was that applicable to cases of premises liability. Appellees insist that the premises liability standard does not apply because AGLC is neither an owner nor occupier of the premises on which Gresham fell. We note, however, the uncontradicted evidence of AGLC’s ownership of the pipeline system and of AGLC’s right to control and maintain those pipes and that system. Under those circumstances, we find unpersuasive appellees’ argument that AGLC is not an occupier of the land and is not entitled, therefore, to the application of premises liability law.

3. The standard generally applied in premises liability cases is *392the “superior knowledge” standard.

“ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ [Cits.] One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.” [Cits.] [McKnight v. Guffin, 118 Ga. App. 168, 169 (162 SE2d 743) (1968).]

We recognize, however, that even in premises liability cases, the age of the injured person is relevant. Because a child may be unable to appreciate a danger and, therefore, to have knowledge of the hazard equal to that of the owner/occupier, an owner/occupier may be held to a higher standard of care toward a child than toward an adult. See, e.g., Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 754 (92 SE2d 720) (1956). For that reason, we agree with appellants that AGLC is not entitled to summary judgment on the ground that Gresham, by reason of his familiarity with the premises, is held as a matter of law to have equal knowledge of the dangers on the premises.

4. However, notwithstanding the existence of a question of fact whether Gresham, as a child, had equal knowledge of the danger, we find that summary judgment was correctly granted to AGLC because the injury here was not foreseeable and, therefore, any negligence by AGLC was not the proximate cause of Gresham’s injury. The pipe on which Gresham fell was located more than two feet from the side of the steps and was within 18 inches of the side of the mobile home. It is clear from the record that the pipe was well outside the expectable course of traffic entering and exiting the mobile home, put in a place no one had any reason to go. In fact, Gresham’s father stated on the record that he was “amazed” that his son could have fallen in such a way as to hit the pipe, and that it had never crossed his mind that it was possible.

Because of the necessity of establishing that defendant’s negligence caused injury to the plaintiff, “if the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof.” [Cits.] “ ‘One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too *393heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen or what, as it is sometimes said, is only remotely and slightly probable. [Cits.]’ ” Even where defendant is negligent “ ‘if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery.’ [Cit.]” [Cit.] “The inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. [Cit.]” [Rustin Stamp &c., Inc. v. Ray Bros. Roofing &c. Co., 175 Ga. App. 30, 32 (332 SE2d 341) (1985).]

In the present case, although it is clear that the placement of the pipe was a cause in fact of the injuries Gresham suffered, it is equally clear that the placement of the pipe “furnished only the condition or occasion of the injury” and was not the proximate cause of Gresham’s injuries.

“While the question of proximate cause is usually submitted to the jury as a question of fact, it may be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant’s acts were not the proximate cause of the injury.” Kells v. Northside Realty Assoc., 156 Ga. App. 164, 165 (274 SE2d 66) (1980). We hold, therefore, that the trial court was correct in granting summary judgment to AGLC, and that the Court of Appeals erred in reversing that judgment.

Judgment reversed.

All the Justices concur, except Hunt and Fletcher, JJ., who concur in the judgment only; Smith, P. J., and Weltner, J., who dissent.