WALDO v. MOORE, 241 Ga. App. 797

McMurray, Presiding Judge. Plaintiff Alice Waldo, a social guest in the home of defendant Margaree Moore, brought this tort action to recover for the second degree burns she sustained from scalding hot water in the shower. The trial court directed verdict in favor of defendant, and plaintiff appeals.

Held: Because the jury is authorized to conclude that Moore’s intentional act of raising the water temperature coupled with her negligence in failing to alert her social guest to this fact after the guest announced her intention to bathe amounted to wilful and wanton behavior on Moore’s part, we reverse the direction of the verdict. “When the defendant’s wrongful act was not only a failure in diligence but was wilful or so grossly negligent as to be wanton and reckless, the mere failure of the plaintiff or his servant in the exercise of ordinary care will not defeat a recovery.” [Central R. &c. Co. v.

Newman, 94 Ga. 560, hn. 2 (21 SE 219).] Carr v. John J. Woodside Storage Co., 217 Ga. 438, 439 (1) (123 SE2d 261). If the negligence of the [defendant] is so gross as to amount to wanton and willful negligence [sic], such want of ordinary care by the person injured or killed to avoid the consequences of it would be no bar to a recovery for the injury. Central R. Co. v. Denson, [84 Ga. 774 (11 SE 1039)] and W. & A. R. Co. v. Bailey, [105 Ga. 100 (31 SE 547)]. Lowe v. Payne, 156 Ga. 312, 315 (118 SE 924).

These Supreme Court of Georgia authorities have long been applied by this Court in tort actions occasioned on residential premises because they are in fact applications of the identical legal duty of care a homeowner owes a social guest (licensee) under OCGA § 51-3-2 (b), namely to refrain from inflicting “willful or wanton injury.” To the licensee, [as well as] the trespasser, no duty arises of keeping the . . . premises up to any . . . standard of safety, except that they must not contain pitfalls, mantraps, and things of that type. Mandeville Mills v. Dale, 2 Ga. App. 607 [(58 SE 1060)]. See Central of Ga. R.

Co. v. Ledbetter, 46 Ga. App. 500 (168 SE 81). . . . (Emphasis supplied.) MacKenna v. Jordan, 123 Ga. App. 801, 802 (2) (182 SE2d 550). In this case, the complaint alleges a violation of OCGA § 51-3-2 by defendant’s knowing creation of a hidden peril by intentionally increasing the temperature of the hot water for residential use, namely to wash clothes, without informing plaintiff, her social guest. Viewed in the light most favorable to the plaintiff, this was admitted by defendant as she helped plaintiff from the bath.

Plaintiff estimated she was hit by scalding water for 28 seconds, as a result of which her skin started coming off. Plaintiff’s treating physician, Sanford Hawkins, testified that the maximum safe setting for bath water is 120 degrees Fahrenheit. Judging from the little time it took for plaintiff to sustain the blistering associated with second degree burning, Dr. Hawkins estimated that the water temperature at defendant’s residence was “[g]reater than 131 [degrees] Fahrenheit.” Plaintiff had previously bathed at defendant’s residence without incident.

And on the morning in question, plaintiff announced her intention to bathe to defendant, who failed to warn plaintiff that she had raised the water temperature. From the moment plaintiff first turned on the water, it felt “[v]ery hot.” Plaintiff tried to “get it to turn off, but . . . [she] fell in the tub and . . . couldn’t get up and [scalding water] kept pouring down on [her].” Whether the scalding water temperature in the shower constituted a hidden peril, mantrap, or pitfall is undoubtedly a question for jury determination. MacKenna v. Jordan, 123 Ga. App. at 802 (2), supra.

Then the question [is], would the jury be authorized to find that [defendant’s intentional conduct in increasing the water temperature combined with defendant’s negligent omission in failing to mention this fact when her guest announced the intention to bathe, when viewed in the light most favorable to the nonmovant for directed verdict], amounted to wilful and wanton negligence [or conduct], for which the defendant is liable? We think this question should be answered in the affirmative. (Emphasis supplied.) Humphries v. Southern R. Co., 51 Ga. App. 585, 588 (181 SE 135).

The dissent correctly states that the defendant host must exercise ordinary care to warn of a hidden peril. But the dissent errs in concluding that, as a matter of law applied to undisputed fact, plaintiff violated the common sense of mankind and failed to exercise such prudence as the ordinarily careful person would use in a like situation. Under the authority of Robinson v. Kroger Co., 268 Ga. 735, 741 (1) (493 SE2d 403), that determination in this routine residential premises liability case is for the jury, and not this Court. The trial court erred in directing the verdict in this case. Judgment reversed.

Pope, P. J., and Miller, J., concur. Smith, J., concurs in the judgment only. Johnson, C. J., Andrews, P. J., and Phipps, J., dissent. We realize the language employed by the Supreme Court of Georgia is subject to the criticism that it is an oxymoron, “for wilfulness and wantonness are so far the opposites of negligence as to make the expression . . . misleading, though it is frequently employed by many of our best jurists and law-writers.” Central of Ga. R. Co. v. Moore, 5 Ga. App. 562, 564 (2) (63 SE 642).