                              THIRD DIVISION
                               BARNES, P. J.,
                           BOGGS and BRANCH, 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/


                                                                 November 14, 2014




In the Court of Appeals of Georgia
 A14A1006. DAVIDSON et al. v. METICULOUSLY CLEAN
     SWEEPERS, LLC.

      BRANCH, Judge.

      In January 2011, after a winter storm, plaintiff Nancy Davidson fell outside a

Dollar Tree store in a Macon shopping center owned by three corporate entities

(collectively, “Rivergate”). Davidson and her husband sued Rivergate; its property

management company; Dollar Tree; the Dollar Tree manager; and Meticulously Clean

Sweepers, LLC (“MCS”), an independent contractor which had applied a de-icing

mixture to the area on the night before Davidson fell. After all defendants except

MCS settled with the Davidsons, MCS moved for summary judgment, which was

granted on grounds including that the Davidsons were not third-party beneficiaries

of the contract between Rivergate and MCS and that there was no evidence that MCS
had been negligent. On appeal, the Davidsons argue that the grant of summary

judgment was error because questions of material fact remain as to whether MCS was

negligent in its application of the de-icing mixture, which it had undertaken to do in

its contract with Rivergate; whether that negligence was a proximate cause of

Davidson’s injury, and whether MCS had superior knowledge of the hazard posed by

ice in the area where Davidson fell. We reject these contentions and therefore affirm.

      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. . . . [T]he burden
      on the moving party may be discharged by pointing out by reference to
      the affidavits, depositions and other documents in the record that there
      is an absence of evidence to support the nonmoving party’s case. If the
      moving party discharges this burden, the nonmoving party cannot rest
      on its pleadings, but rather must point to specific evidence giving rise
      to a triable issue.


Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citations omitted).

      Viewed in favor of the Davidsons, the record shows that in February 2010,

Rivergate entered into a written contract with MCS to provide sweeping services,

including the “sweeping and blowing of all trash, leaves and other matter throughout

the front and rear parts” of the shopping center, “7 days a week[.]” The contract

                                          2
specified that “[n]othing” in the contract “shall be deemed to establish any

partnership, joint venture or agency relationship between the parties other than that

of an independent contractor performing the services expressly provided for herein,”

that each party “shall have no authority to bind [the other] or its affiliates with respect

to third parties,” and that “[n]o third parties . . . are intended to, nor shall they be

deemed to have a right to benefit from, or seek to enforce, any of the provisions” of

the contract. For an additional charge, MCS also agreed to “de-ice” the parking lot

and sidewalks.

       As a winter storm approached in January 2011, Rivergate asked MCS to de-ice

the premises. MCS performed de-icing services on January 9, 11, 12, and 13. The

storm arrived in the area on January 10. At around 10:30 p.m. on the evening of

January 11, the owners of MCS, Mazahir Ataelsid and Ali Pruitt, went to the

shopping center to perform both sweeping and de-icing services. As Ataelsid

followed behind him in the company truck, which contained bags of de-icing salt and

sand, Pruitt applied at least three to five bags of a mixture of these ingredients to the

parking lot and the sidewalks.1 Pruitt applied the mixture by hand from a five-gallon

bucket he carried, returning several times to the truck to refill his bucket from the

       1
           Pruitt was not located and gave no evidence or testimony in the case.

                                            3
bags of salt and sand. Ataelsid testified that as Pruitt did his work, “[i]t was beginning

to flurry, so there wasn’t like an accumulation here and an accumulation here. . . . I

didn’t look at the shopping center and say it was all white.” Ataelsid also testified that

she saw “not much” snow on the ramp from the parking lot to the sidewalk in front

of the Dollar Tree and that “[t]here was no ice at all” in the area.

      On the next morning, January 12, 2011, Davidson drove to the shopping center

with her one-year-old grandson. As she got out of her car, she saw that the parking

lot surface was “clear” and that “everything had dried up.” Before crossing a traffic

lane in front of the stores, Davidson picked up her grandson in order to carry him

across the lane and onto a small paved ramp leading from the parking lot surface and

running parallel to the sidewalk in front of the Dollar Tree. As she did so, Davidson

noticed a “little puddle of water” along the curb of the sidewalk at the beginning of

the ramp, which she stepped to avoid. According to Davidson, the puddle “did not

look like ice.” As she walked around the puddle and stepped onto the ramp, she fell,

injuring her right leg. Davidson interpreted photographs of the area of her fall taken

later that day as showing the presence of black ice. She also testified that the ice

could not “be reasonably seen even by somebody who [was] being careful and

watching where they [were] going.”

                                            4
      In October 2012, the Davidsons sued Rivergate, the property management

company, Dollar Tree, the manager of Dollar Tree, and MCS for negligence. On May

17, 2013, plaintiffs settled with and moved to dismiss with prejudice their claims

against Rivergate, the property management company, Dollar Tree, and the manager.

After the trial court granted the motion, the case was transferred from Bibb County

to Gwinnett County, where MCS, the sole remaining defendant, resided. MCS then

moved for summary judgment, which the trial court granted on the grounds that (1)

Davidson was not a third-party beneficiary of the de-icing contract between Rivergate

and MCS; (2) no evidence showed that MCS breached any duty of ordinary care; and

(3) no evidence showed that MCS had superior knowledge of the black ice on which

Davidson fell. This appeal followed.

      1. The Davidsons argue that MCS can be liable to them for any negligent

performance of MCS’s contract with Rivergate. We disagree.

      Although a business owner owes a nondelegable duty of ordinary care to its

invitees,2 “the duty [thus] imposed upon an owner or occupier of land . . . is


      2
        See OCGA § 51-3-1 (“Where an owner or occupier of land, by express or
implied invitation, induces or leads others to come upon his premises for any lawful
purpose, he is liable in damages to such persons for injuries caused by his failure to
exercise ordinary care in keeping the premises and approaches safe.”).

                                          5
inapplicable to an independent contractor.” Maddox v. Cumberland Distrib. Svcs.,

236 Ga. App. 170, 171 (1) (511 SE2d 270) (1999) (citations omitted). The Supreme

Court of Georgia has 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.’” Anderson v. Atlanta Committee for the

Olympic Games, 273 Ga. 113, 117-118 (4) (537 SE2d 345) (2000), quoting Armor

Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994). And this

Court has held, following Anderson, that a trial court erred in denying summary

judgment to a janitorial service when the contract between the service and the owner

of the supermarket in which a plaintiff fell contained “nothing . . . that shows [the

parties’] mutual intent to confer a direct benefit upon third parties.” R & S Farms v.

Butler, 258 Ga. App. 784, 787 (575 SE2d 644) (2002).

      The contract between MCS and Rivergate is clear that neither party to it

intended to allow any third party to be a beneficiary of the services provided pursuant

to that contract by MCS to Rivergate. Indeed, the contract expressly provided that

“[n]o third parties . . . are intended to, nor shall they be deemed to have a right to

                                           6
benefit from, or seek to enforce, any of the provisions” of the contract. In the absence

of any other evidence showing that these parties intended to confer any benefit arising

from the contract between MCS and Rivergate upon any third party, the trial court did

not err when it concluded that the Davidsons could not have been third-party

beneficiaries of that contract. R & S Farms, 258 Ga. App. at 787-788 (reversing

denial of summary judgment to janitorial service on plaintiff’s tort claim where no

evidence showed that the contracting parties intended to create third-party

beneficiaries to the contract); Anderson, 273 Ga. at 117-118 (4) (affirming grant of

summary judgment to security company where its contracts with property owner

showed “no intent” to confer any benefit on visitors to the property).

      2. The Davidsons also argue that the trial court erred in its conclusion that no

question of fact remains as to whether MCS negligently treated the area where Mrs.

Davidson fell. We disagree.

      In light of our holding in Division 1, the Davidsons must establish a viable

cause of action in tort, “independent of” the contract between Rivergate and MCS,

in order to avoid summary judgment. Westbrook v. M & M Supermarkets, 203 Ga.

App. 345, 346 (2) (416 SE2d 857) (1992) (citation omitted). Specifically, the

Davidsons must show that MCS owed them a duty of ordinary care as to

                                           7
responsibilities undertaken in the contract with Rivergate. See, e.g., Kelley v. Piggly

Wiggly Southern, 230 Ga. App. 508, 509 (1) (496 SE2d 732) (1997) (independent

contractor could be liable to a third party for a failure to use ordinary care in

executing its cleaning duties undertaken by contract).

      OCGA § 51-1-11 (a) provides in relevant part that “if [a] tort results from the

violation of a duty which is itself the consequence of a contract, the right of action is

confined to the parties and those in privity to that contract, except in cases where the

party would have a right of action for the injury done independently of the

contract[.]” (Emphasis supplied.) On the question whether a party has “a right of

action for [an] injury done independently of [a] contract,” id., the Supreme Court of

Georgia has adopted § 324A of the Restatement (Second) of Torts, which provides:

      “One who undertakes, gratuitously or for consideration, to render
      services to another which he should recognize as necessary for the
      protection of a third person or his things, is subject to liability to the
      third person for physical harm resulting from his failure to exercise
      reasonable care to protect his undertaking, if (a) his failure to exercise
      reasonable care increases the risk of such harm, or (b) he has undertaken
      to perform a duty owed by the other to the third person, or (c) the harm
      is suffered because of reliance of the other or the third person upon the
      undertaking.”



                                           8
Huggins v. Aetna Cas. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980), quoting

Restatement (Second) of Torts § 324A (emphasis supplied).

      Assuming for purposes of this appeal that MCS should have recognized that

its de-icing services might, under some circumstances, be “necessary for the

protection” of visitors to the Rivergate shopping center, the first question is whether

there was some evidence authorizing an inference that MCS failed to exercise

“reasonable care” in performing its de-icing services. Restatement (Second) of Torts

§ 324A. Only if MCS was thus negligent would we consider whether (a) this

negligence increased the risk of harm at the site, (b) whether MCS’s performance was

to be substituted completely for that of Rivergate,3 or (c) whether Mrs. Davidson was

injured because she or Rivergate actually relied on MCS to remediate whatever snow

or ice condition existed there. See id.; Taylor v. AmericasMart Real Estate, 287 Ga.

App. 555, 559-560 (1) (b) (651 SE2d 754) (2007) (describing the possible application

of subparagraphs (a), (b) and (c) of § 324A to a plaintiff’s action against a janitorial

company).

      3
        “The official comment [to § 324A] limits the application of subparagraph (b)
to those situations where the alleged tortfeasor’s performance is to be substituted
completely for that of the party on whose behalf the undertaking is carried out.”
Huggins v. Standard Fire Ins. Co., 166 Ga. App. 441, 442 (304 SE2d 397) (1983)
(citation omitted).

                                           9
      The only direct evidence concerning MCS’s activities at the site was that MCS,

on the night before Mrs. Davidson’s accident, had spread some of the de-icing

mixture in the area where she fell the next morning. Although the Davidsons assert

on appeal that MCS “contributed to creating the hazard by affecting the melting and

freezing process in the location where the black ice occurred,” the Davidsons have

provided no evidence tending to prove how any act or omission of MCS “affected”

that location, or that MCS somehow failed to exercise reasonable care in performing

its de-icing services. Though the Davidsons would have us infer MCS’s negligence

merely from evidence of Mrs. Davidson’s fall in an area MCS treated the night

before, “[p]roof of nothing more than the occurrence of the fall is insufficient” to

show that a person bound to exercise reasonable care as to premises, whether a

landowner or an independent contractor, has not done so. Weldon v. Del Taco Corp.,

194 Ga. App. 174 (390 SE2d 87) (1990) (citations and punctuation omitted).

      Nor does the mere existence of black ice at the spot where Mrs. Davidson fell

prove that MCS was negligent in its exercise of its de-icing duties the night before.

The Davidsons cite Speaks v. Rouse Co. of Ga., 172 Ga. App. 9 (321 SE2d 774)

(1984), for the proposition that “the presence of salt and sand on clear streets might

have contributed to a more unstable situation” in the area where that plaintiff fell on

                                          10
ice that formed on black asphalt. Id. at 10. In that case, we merely noted this

proposition as “arguable,” however, and went on to conclude that when there was “no

affirmative evidence” that the property owners had “performed any act to make the

presence of ice or snow more dangerous than it was in its state of accumulation,” and

when the plaintiff must have been “aware of the presence of water and the fact that

the water could freeze,” summary judgment was properly granted to the property

owner. Id. at 10-11. Likewise, the Davidsons have not provided any evidence that

MCS’s mixture of sand and salt was improperly formulated or that MCS applied an

inadequate amount of that mixture, with the result that summary judgment in favor

of MCS was proper.

      Because the Davidsons failed to produce sufficient evidence of a lack of

reasonable care by MCS, the Davidsons cannot show that MCS was negligent in its

de-icing operations, with the result that we need not reach the questions posed by

subsections (a), (b), and (c) of Section 324A of the Second Restatement. It follows

that the trial court did not err when it granted summary judgment to MCS on the

Davidsons’ claims. Taylor, 287 Ga. App. at 559-560 (1) (b) (affirming grant of

summary judgment to janitorial company when evidence did not show that the

company was negligent, with the result that § 324A did not apply).

                                         11
      3. Because we conclude that the Davidsons were not third party beneficiaries

of the contract between MCS and Rivergate, and because there is no evidence to

authorize a conclusion that MCS was negligent when it treated the location where

Mrs. Davidson fell, we need not consider whether MCS had equal or superior

knowledge of any hazard there or whether any of its acts or omissions were a

contributing proximate cause of the accident.

      Judgment affirmed. Barnes, P. J., and Boggs, J., concur.




                                        12
