                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                             RAY and RICKMAN, JJ.

                   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 23, 2018




In the Court of Appeals of Georgia
 A18A1227. MANNERS v. 5 STAR LODGE AND STABLES, LLC
     et al.

      MCFADDEN, Presiding Judge.

      Caitlin Manners filed this lawsuit to recover damages for the injuries she

sustained when she was accidentally shot by Joey Sisson at 5 Star Lodge and Stables,

LLC. She asserted claims of premises liability under OCGA § 51-3-1 and respondeat

superior under OCGA § 51-2-2 against 5 Star and its owner, William Kenneth Butler,

Jr.; and she asserted a claim of negligence under OCGA § 51-1-2 against Sisson.

      Manners appeals the grant of summary judgment to 5 Star and owner Butler.

She argues that the shooting occurred in the course and scope of Sisson’s

employment, so 5 Star and Butler are liable for the shooting. She also argues that

whether she was on the premises as an invitee or as a licensee is a jury question,
precluding summary judgment. But it is undisputed that at the time of the injury, the

crucial point for purposes of Manners’ lawsuit, Sisson was not acting in the course

of any employment and Manners was a licensee. So we affirm.

      1. Factual background.

      “To prevail at summary judgment under OCGA § 9-11-56, the moving party

must demonstrate that there is no genuine issue of material fact and that the

undisputed facts, viewed in the light most favorable to the nonmoving party, warrant

judgment as a matter of law. OCGA § 9-11-56 (c).” New Madison South Limited

Partnership v. Gardner, 231 Ga. App. 730, 731-732 (499 SE2d 133) (1998) (citation

and punctuation omitted).

      So viewed, the record shows that 5 Star is a lodge and horse-boarding facility

that hosts weddings, corporate retreats, and family reunions. After he purchased 5

Star, Butler hired Roxanne Young to manage the lodge and stables, to manage the

boarding of horses, and to start leading trail rides. Young and Sisson, her boyfriend,

lived in an apartment on the property. Manners and her boyfriend, Keri Wilson, were

friends with Young and Sisson, whom they had met at a wedding years before the

shooting.



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      On the evening of the shooting, a Friday, Manners and Wilson went to 5 Star

to visit Young and Sisson. Manners and Wilson found Young and Sisson in the barn.

Manners and Young began looking at real estate listings on the computer, while

Sisson showed Wilson a modification he had made to his pistol. Within minutes,

Sisson accidentally shot Manners. At the time of the shooting, Sisson was not doing

anything related to work at 5 Star. Nor were Manners or Wilson doing anything

related to work at 5 Star when Manners was shot; they were there for a social visit.

      Dorothy Hunt, a friend of Young’s, was also in the barn at the time of the

shooting. She was at 5 Star to take care of the horses during the weekend because

Young would be busy with weddings on Saturday and Sunday. Hunt testified that

Young had told her that Manners and Wilson were going to help park cars for the

weddings as they had done before, although Hunt did not speak with Manners or

Wilson about that prospective assignment. There is no evidence that, at the time of

the shooting, Manners was engaged in any business at 5 Star, and she testified that

she had no plans to return to the property later that weekend to work or for any other

reason.

      2. Respondeat superior.



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      Manners argues that the trial court erred in granting summary judgment on her

respondeat superior claim because a jury could find that Sisson was 5 Star’s employee

and that the shooting occurred while he was engaged in 5 Star’s business. Assuming

for purposes of this appeal only that Sisson was 5 Star’s employee, there is no

evidence that the shooting occurred while Sisson was engaged in 5 Star’s business.

So the trial court did not err by granting 5 Star and Butler’s motion for summary

judgment on this claim.

      “Every person shall be liable for torts committed by his wife, his child, or his

servant by his command or in the prosecution and within the scope of his business,

whether the same are committed by negligence or voluntarily.” OCGA § 51-2-2.

“When a servant causes an injury to another, the test to determine if the master is

liable is whether or not the servant was at the time of the injury acting within the

scope of his employment and on the business of the master.” Hicks v. Heard, 286 Ga.

864, 865 (692 SE2d 360) (2010) (citation omitted; emphasis added).

      Manners argues that Dorothy Hunt’s testimony that Manners and Wilson, her

boyfriend, were at the premises to help with the weddings — even though Manners

and Wilson did not know that — is evidence that “the gathering [in the barn] before

the shooting was at least in part a 5 Star business meeting where Young and Sisson

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were going to talk about how [Manners] and [Wilson] were going to help with the

two weddings at the premises,” but that Manners was shot before they were able to

begin that discussion. So, Manners argues, a jury could find that the shooting

occurred while Sisson was engaged in his employer’s business.

      The evidence is undisputed, however, that whatever the plans may have been

for later that weekend, they were not discussing work at the time of the shooting. So

there is no evidence that Sisson was engaged in 5 Star’s business at the time he

accidentally shot Manners. The trial court properly granted summary judgment on the

respondeat superior claim.

      3. Premises liability.

      Manners argues that the trial court erred in granting summary judgment on her

premises liability claim because some evidence would allow a jury to find that

Manners was on the premises to work and was therefore an invitee, and that 5 Star

and Butler breached the duty to exercise ordinary care to keep Manners safe. We

disagree.

      “The elements of legal liability of the owner of premises for injuries occasioned

to persons thereon vary according to whether the person injured was, at the time of

the injury, a trespasser, a licensee, an invitee express or implied, or a person standing

                                           5
in some special relation recognized by law.” Cook v. Southern R. Co., 53 Ga. App.

723, 724-25 (1) (187 SE 274) (1936) (emphasis added). A landowner owes the duty

of ordinary care to an invitee. OCGA § 51-3-1; Jarrell v. JDC & Assoc., LLC, 296

Ga. App. 523, 525 (675 SE2d 278) (2009). A landowner owes a lesser duty — to

avoid causing willful or wanton injury — to a licensee. OCGA § 51-3-2 (b); Jarrell,

296 Ga. App. at 525. “To determine whether a person is an invitee or a mere licensee,

the nature of his relation or contact with the owner or occupier of the premises must

be determined . . . at the time of the injury. . . .” Armstrong v. Sundance

Entertainment, 179 Ga. App. 635 (347 SE2d 292) (1986) (citation and punctuation

omitted; emphasis in original).

      As detailed above, whatever the plans may have been for later that weekend,

it is undisputed that at the time of the injury, when Sisson accidentally shot Manners,

Manners was engaging in a social visit. Under Georgia law, social guests are

licensees, not invitees. Thompson v. Oursler, 318 Ga. App. 377, 378 (733 SE2d 359)

(2012). So at the time of the injury, 5 Star and Butler only owed Manners the duty not

to injure her wantonly or willfully.

      Wanton conduct is conduct that “is so reckless or so charged with indifference

to the consequences as to be the equivalent in spirit to actual intent to do harm or

                                          6
inflict injury. Moreover, an owner has no duty to a licensee to keep the premises up

to any standard of safety, except that they must not contain pitfalls, mantraps, and

things of that type.” Trulove v. Jones, 271 Ga. App. 681, 681-682 (1) (610 SE2d 649)

(2005) (citations and punctuation omitted).

      [I]t is also usually wilful or wanton not to exercise ordinary care to
      prevent injuring a person who is actually known to be or may reasonably
      be expected to be, within range of a dangerous act being done or a
      hidden peril on one’s premises. In other words, a possessor of land is
      subject to liability for physical harm caused to licensees by a condition
      on the land if, but only if, (a) the possessor knows or has reason to know
      of the condition and should realize that it involves an unreasonable risk
      of harm to such licensees, and should expect that they will not discover
      or realize the danger, and (b) he fails to exercise reasonable care to make
      the condition safe, or to warn the licensees of the condition and the risk
      involved, and (c) the licensees do not know or have reason to know of
      the condition and the risk involved.


Thompson v. Oursler, 318 Ga. App. 377, 378 (733 SE2d 359) (2012) (citations and

punctuation omitted). “Where a licensee has equal knowledge of the dangerous

condition or the risks involved, there is no wilful or wanton action on the part of the

owner and there is no liability to the licensee.” Trulove, 271 Ga. App. at 682 (1)

(citation and punctuation omitted; emphasis in original).


                                          7
      It is undisputed that the shooting was an accident. To the extent that Manners

argues on appeal that 5 Star and Butler through Young unjustifiably placed Manners

at risk given Young’s knowledge that Sisson had been drinking and was handling a

gun, it is also undisputed that Manners knew these facts. (She points to no evidence

that Sisson was intoxicated or that any intoxication had anything to do with the

accident.) Manners “admitted that [Sisson] did not intentionally hurt her and that her

injury was the result of an accident. And the undisputed evidence shows that [she]

was aware [of the facts that she now contends unreasonably placed her at risk].”

Trulove, 271 Ga. App. at 682 (1). Accordingly, the trial court properly granted

summary judgment on the premises liability claim.

      Judgment affirmed. Ray and Rickman, JJ., concur.




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