Wright v. Shoney's of Savannah , 141 Ga. App. 362 ( 1977 )

Shulman, Judge.

The plaintiff appeals from the grant of a summary judgment in favor of defendants.

Plaintiff, a child of 27 months of age, accompanied by her mother and grandmother, had lunch at defendant restaurant where the child and grandmother used the rest room, in which there were two toilet stalls. The grandmother placed the child in one stall and used the other herself. She shut both doors. There was a washbasin with built-in cabinets under the basin. The child apparently finished first, went to the cabinet, took out some gel air freshener and began to eat it.

Even if the child in this case was an invitee, when she undertook an act which went beyond the reason for entering the rest room, she lost that status. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 (92 SE2d 720). It would normally be the duty of a parent or other adult to see to it that a child would not be going into a place of obvious danger. Augusta Amusements, Inc. v. Powell, supra. See also Hall v. Lewis, 135 Ga. App. 730 (218 SE2d 706).

Regardless of the age of the injured person, if there is no breach of any legal duty on the part of the defendant toward such person, there can be no legal liability. Atlanta & W. P. R. Co. v. West, 121 Ga. 641, 645 (49 SE 711).

In the case at bar, a restaurant storing disinfectants, air gels and the like in the rest rooms, in a cabinet containing doors, would appear to be a normal and logical act, and it would not be foreseeable that an injury would ensue from such action. "The general rule in such cases is not whether injuries result or the consequences were possible, but whether they were probable, that is, likely to occur according to the usual experience of persons. It is not necessary that a person be required to anticipate or foresee and guard against what is unusual and not likely to happen, but to anticipate and foresee and provide against that which usually happens or is likely to happen. Whitaker v. Jones, McDougald, Smith Pew Co., 69 Ga. App. 711, 716 (26 SE2d 545).”Feldman v. Whipkey’s Drug Shop, 121 Ga. App. 580, 581 (174 SE2d 474).

"One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what is only remotely and slightly probable. See Powell v. Waters, 55 Ga. App. 307 (190 SE 615); Peggy Ann of Ga. v. Scoggins, 86 Ga. App. 109, 116 (71 SE2d 89); Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438, 440 (103 SE2d 138).

"... [T]he proprietor of premises is not the insurer of persons thereon against all acts of co-invitees, and when said proprietor has used or exercised ordinary care to keep the premises safe, he is not guilty of negligence. Watson v. McCrory Stores, 97 Ga. App. 516, 518 (103 SE2d 648).” Feldman v. Whipkey’s Drug Shop, 121 Ga. App. 580, 581, supra.

Argued January 10, 1977 Decided February 23, 1977. Braziel & Braziel, William F. Braziel, Jr., for appellants. Bouhan, Williams & Levy, Frank W. Seiler, Falligant, Karsman, Kent & Toporek, Stanley Karsman, for appellees.

The trial court correctly granted defendant’s motion for summary judgment.

Judgment affirmed.

Bell, C. J., Stolz, Webh, Marshall and McMurray, JJ., concur. Deen, P. J., Quillian, P. J., and Smith, J., dissent.