                           FOURTH DIVISION
                             DILLARD, C. J.,
                       DOYLE, P. J., and MERCIER, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 30, 2018




In the Court of Appeals of Georgia
 A18A1308. GREEN v. PATECO SERVICES, LLC.                                    DO-046

      DOYLE, Presiding Judge.

      This appeal arises out of claims filed by Ephraim Green against Pateco

Services, LLC, and others, alleging that Pateco was responsible for reporting hazards

in the common area where Green’s foot slipped into an open water meter causing him

to spill hot oil on his face and body. Pateco moved for summary judgment, and the

trial court granted the motion. Green appeals, arguing that the trial court erred by

granting Pateco’s motion because (1) Green was a third-party beneficiary to Pateco’s

service contract related to the area where Green fell; (2) genuine issues of material

fact exist as to whether Pateco performed under the contract; and (3) genuine issues

of material fact existed as to whether Green exercised ordinary care for his own

safety. For the reasons that follow, we reverse.
      The record shows that on the night of September 27, 2014, while working at

Dantanna’s Tavern, which is a restaurant located in a shopping center, Green was

instructed to drain hot oil from a fryer. Because of an issue with the restaurant’s

interior oil filtration system, Green drained the oil into a large stock pot, which he

carried outside of the restaurant, where he intended to pour it out after a possible

misunderstanding about what he should be doing with the oil. While walking through

the back lot, Green stepped into an uncovered water meter opening, which resulted

in him spilling the contents of the pot onto himself and suffering third-degree burns

over his face and body.

      Green filed suit against Dantanna’s Tavern, LLC; its owners Great Concepts,

LLC, and David Clapp; and property owners DDR Corporation, Inc., and DDR

Southeast Abernathy, LLC (collectively “DDR”), based on the defendants’ failure to

properly inspect and maintain the premises. Thereafter, DDR filed a third-party

complaint against, et alia, Pateco alleging that it was responsible for maintaining the

shopping center common area, and under the applicable service agreement between

the parties, Pateco was liable for Green’s injuries. Green then amended his complaint

to add a claim against Pateco. The trial court granted summary judgment to Green’s



                                          2
employers based on a workers’ compensation remedy barring those claims; Green’s

claims against DDR remain pending below.1

      Prior to this event, DDR had entered into a contract with Pateco for parking lot

“sweeping” services of the shopping mall grounds, including vacuuming, sweeping,

and removing litter or debris from “the parking areas, driveways, entrances, exits,

interior roadways, curbs, delivery[,] and/or loading dock areas,” including the area

where Green was injured. Additionally, Pateco was required to, inter alia, “[r]eport

to [DDR] any problems or defects that may be observed during each service visit

(e.g., safety hazards, property damage, large refuse[] stored outside, graffiti,

abandoned vehicles, lights out, oil/paint spills or any unusual activity, etc.).” Pateco

agreed that it would “plan and conduct the [s]ervices to safeguard all persons and

property from injury.” Pateco also agreed that

      [n]either the issuance of special instructions by Owner nor the adherence
      to them by [Pateco] shall relieve [Pateco] of the sole responsibility to


      1
        DDR has filed an appellate brief in support of Pateco, and it argues that the
trial court should have granted summary judgment based on Green’s failure to
establish, among other things, lack of superior knowledge and failure to exercise
ordinary care, which affect the claims that remain pending against DDR below. But
DDR failed to file either a notice of appeal or a notice of cross-appeal. Accordingly,
this opinion does not address the pending claims against DDR. See, e.g., Liu v. Boyd,
294 Ga. App. 224, 226-227 (2) (668 SE2d 843) (2008).

                                           3
      maintain safe and efficient conditions at the Property. In connection with
      the [s]ervices, [Pateco] shall give all required notices and warnings that
      bear on the safety and protection of persons and property at the Property.
      . . . [Pateco] shall be solely responsible for safety in performing the
      [s]ervices and shall promptly remedy any injury, damage or loss in
      connection thereof. [Pateco] shall have an affirmative duty to actively
      investigate and maintain safe conditions in connection with the
      [s]ervices. In any emergency affecting the safety of persons or property
      at Property, [Pateco] shall take all reasonable immediate actions to
      prevent or alleviate threatened damage, injury, or loss.


With regard to the services provided to DDR, Pateco warrantied that it

      was familiar with and experienced in performing the trades and work
      necessary for full performance of the Services. The Services include all
      services necessary or desirable for the proper an[d] safe completion of
      the Scope of Work in Schedule A . . . in accordance with all applicable
      laws, ordinances, requirements, or regulations and in a manner which
      will minimize health, safety, legal[,] and other risks to Owner, and its
      respective employees, agents, guests[,] and invitees.


Pateco also agreed that “[t]o the fullest extent permitted by law, [Pateco] hereby

assumes the entire responsibility and liability for all Services . . . until final

acceptance of the Services by Owner. . . .” And

      [t]o the fullest extent permitted by law, [Pateco] agrees to protect,
      defend, hold harmless, and indemnify Owner, and all of their respective

                                          4
      affiliates, parents, subsidiaries, partners, members, directors, officers,
      stockholders, joint ventures, employees, agents, and successors and
      assigns . . . from and against any and all claims . . . of whatever type or
      nature[,] . . . which may be imposed upon, incurred by, asserted against,
      alleged against, or suffered by the DDR indemnitees arising, or alleged
      to arise out of, or in connection with, [Pateco]’s . . . (i) performance,
      non-performance, operations or obligations relating to the Services
      under this Agreement; [and/or] (ii) breach of this Agreement. . . .


      After initially filing suit against DDR and his employer, Green amended his

complaint to add a claim against Pateco, alleging that Pateco was negligent in

performing its duties under the contract, which included warning of the open water

meter cover so that the issue could be remediated by DDR. Green contended that

pursuant to its contract with DDR, Pateco undertook to provide warnings of hazards

on the grounds of the property — undertaking a duty to him and other invitees on the

property — and a question of fact existed as to whether Pateco saw or should have

seen the hazard of the open water meter cover, and whether it violated its duty under

the contract by failing to “report any defects in the property” to DDR, allowing the

hazard to remain, and thereby causing Green’s injuries.

      The trial court determined that (1) the contract between Pateco and DDR was

not ambiguous; (2) Pateco undertook only to safely conduct parking lot sweeping

                                          5
services; and (3) therefore, there was no duty to Green that Pateco breached under the

contract related to his injury.

      1. Green argues that the trial court erred by granting Pateco’s motion for

summary judgment because the plain language of the contract between Pateco and

DDR showed that Green was a third-party beneficiary to the contract, and therefore,

Pateco had a duty to Green. We agree.

              Although a business owner owes a nondelegable duty of ordinary
      care to its invitee, the duty thus imposed upon an owner or occupier of
      land is inapplicable to an independent contractor. [In Anderson v.
      Atlanta Committee for the Olympic Games,2] [t]he Supreme Court of
      Georgia . . . held that in personal injury cases against independent
      contractors, an injured party may not recover as a third-party beneficiary
      for failure to perform a duty imposed by a contract unless it is apparent
      from the language of the agreement that the contracting parties intended
      to confer a direct benefit upon the plaintiff to protect him from physical
      injury.3


      Here, the language of the contract between Pateco and DDR required Pateco

to report to DDR any problems or defects observed while maintaining the parking lot

      2
          273 Ga. 113 (537 SE2d 345) (2000).
      3
        (Citations and punctuation omitted.) Davidson v. Meticulously Clean
Sweepers, LLC, 329 Ga. App. 640, 643 (1) (765 SE2d 783) (2014), quoting Anderson,
273 Ga. at 117-118 (4).

                                          6
and to do so “in a manner which will minimize health, safety, legal[,] and other risks

to Owner, and its respective employees, agents, guests[,] and invitees.” Moreover,

unlike other contracts that contain express provisions excluding third-party

beneficiaries, in this contract, the parties specifically identified invitees as

beneficiaries of Pateco’s services and contains no express exclusion.4 Accordingly,

the trial court erred by granting summary judgment to Patco based on the language

of the contract.

      2. We also agree with Green that, based on the testimony of Pateco employees,

Green, and others, genuine issues of material fact exist as to whether Pateco breached

its contractual duty by failing to warn of the damaged water meter cover; whether

Green had superior knowledge of the danger of the open water meter cover; and

whether he failed to exercise ordinary care for his own safety by carrying the oil

outside, where some restaurants in the same shopping center (but not Dantanna’s) had

grease traps.

                [A]s a general proposition issues of negligence, contributory
      negligence[,] and lack of ordinary care for one’s own safety are not


      4
       Compare with Davidson, 329 Ga. App. at 643 (1). See FPI Atlanta, L.P. v.
Seaton, 240 Ga. App. 880, 887-888 (5) (b) (524 SE2d 524) (1999) (physical
precedent only).

                                          7
      susceptible of summary adjudication but should be resolved by trial in
      the ordinary manner. The trial court can conclude as a matter of law that
      the facts do or do not show negligence on the part of the defendant or
      the plaintiff only where the evidence is plain, palpable[,] and
      undisputable.5


      Under this standard and based on this record and our holding in Division 1, we

conclude that the trial court erred by granting summary judgment to Pateco.

      Judgment reversed. Dillard, C. J., and Mercier, J., concur.




      5
       (Citation omitted.) Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d
403) (1997).

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