Batchelor v. ABC Booking, Inc.

218 S.E.2d 124, 135 Ga. App. 440, 1975 Ga. App. LEXIS 1694

• Court: Court of Appeals of Georgia
• Decided: June 13, 1975
• Docket: 50491, 50492
• Status: Published

Opinions

Evans, Judge.

This is a stumble and fall case. Mary Dorine Batchelor, accompanied by members of her family, attended a wrestling match at the Griffin-Barnesville Sports Palace near Griffin, Georgia, on October 14, 1972. She paid for a ticket for admission. Her group sat in the first row of bleacher seats which they selected while the house was fully lighted. During the wrestling matches the lights were dimmed so that it was quite dark in the area where the spectators sat.

The management maintained a refreshment stand which was lighted and open for business during the time the wrestling matches were in progress. Mrs. Batchelor left her seat to approach the refreshment stand for the purpose of getting a soft drink. After she had taken several steps, she fell. At the place where she fell to the next lower level of seats, five or six chairs were missing from the row on which Mrs. Batchelor and her group were seated.

Mrs. Batchelor gave as the reason for her fall that she stumped her foot on something in the aisle (a screw or something in or attached to the floor) causing her to fall from the ledge where she was walking about two feet to the next lower level.

Her fall occurred before she reached the stairway which led down to the concession stand. It was too dark to see, and consequently she did not see what the object was that caused her to fall. Her right shoe was torn on the side at the same time she stumped it upon the object on the floor. The shoe was a flat-heeled loafer. Her fall was to the next lower level, where her shoulder came in contact with the floor. There were no lights on the bottom of the aisle.

Mrs. Batchelor and her husband, as plaintiffs, sued ABC Booking, Inc., which operated the Sports Palace, and Griffin Ventures, as lessors.

After discovery, separate motions for summary judgment were granted to the defendants, lessor and lessee. Plaintiffs appeal, bringing two cases to this court because of the grant of the two separate motions for summary judgment. Held:

1. The owner of a business is charged with the responsibility to keep the premises safe for invitees. Simpson v. Dotson, 133 Ga. App. 120, 121 (1) (210 SE2d 240), and cases cited therein.

2. This applies to both the owner and occupier of land. Burger Barn, Inc. v. Young, 131 Ga. App. 828 (1) (207 SE2d 234).

3. Questions of negligence, contributory negligence, cause and proximate cause and whose negligence or what negligence constitutes proximate cause of the injury, are solely for the jury, except in plain and palpable and indisputable cases. Burger Barn, Inc. v. Young, 131 Ga. App. 828, 829 (3), supra, and cases cited; Simpson v. Dotson, 133 Ga. App. 120, 121 (2), supra, and cases cited.

4. Summary judgment can only be granted in those cases where plain, palpable and indisputable facts exist on which reasonable minds cannot differ. Simpson v. Dotson, supra, and cases cited.

5. All ambiguities, conclusions and inferences arising in and from the evidence must be construed most strongly against the movant for summary judgment. Holland v. Sanfax Corp., 106 Ga. App. 1, 5, 9 (126 SE2d 442). Plaintiffs evidence in this case shows she was an invitee in a semi-darkened amphitheatre; that she got up to go to a lighted refreshment stand and slipped on some object, believed to be a screw (or at least something quite similar to a screw), which tore her right shoe and caused her to fall, in an area where the light was insufficient to reveal foreign or dangerous objects on the floor.

Thus, there are issues in this case as to the existence of a foreign object or defect in the floor, which created an unreasonable risk to an invitee while using the premises without knowledge of the defect. There is an issue as to whether or not there was negligence on the part of the defendants. See Kreiss v. Allatoona Landing, Inc., 108 Ga. App. 427, 432-440 (133 SE2d 602); Roberts v. Wicker, 213 Ga. 352 (99 SE2d 84); Johnson v. John Deere Plow Co., 214 Ga. 645 (106 SE2d 901). The mere fact that defendants offered testimony that they had never been advised of any person slipping on the floor in the Sports Palace; knew of no defective conditions in either the floor or the bleachers, or any irregularity; and the same had been cleaned prior to the matches on the date in question, and that no debris was on the floor after the cleaning operation, and that there was no defect in the floor noted during the cleaning, merely creates favorable inferences, which a jury may consider in opposition to plaintiffs testimony that she slipped on an object in the darkened amphitheatre, tearing a hole in her shoe while trying to go towards an unlighted aisle along an area where some chairs had been removed. Such testimony merely creates a conflict on the question of credibility and must be construed most strongly in favor of the party opposing the motion for summary judgment. See in this connection Mathis v. Smallings & Sons, 125 Ga. App. 810 (189 SE2d 122); Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866); Simpson v. Dotson, 133 Ga. App. 120, 122 (210 SE2d 240); Davidson v. Ramsby, 133 Ga. App. 128, 133 (11) (210 SE2d 245); Otto v. Hendry, 132 Ga. App. 598, 599 (1, 2) (208 SE2d 611). The jury might well consider the evidence and determine that there were defects not revealed to Mrs. Batchelor due to the darkened condition, lack of aisle lights, an exposed drop off, and the absence of chairs which were usually in the area, all of this might well have created a place of unusual danger of which the plaintiff was unaware. See in this connection Siegal v. 1156 Woodland, Inc., 115 Ga. App. 178 (154 SE2d 263).

6. Under all these circumstances the lower court erred in dismissing the defendants on summary judgment in each case.

Judgment reversed in both cases.

Deen, P. J., and Webb, J., concur. Pannell, P. J., and Quillian, J., concur specially. Bell, C. J., Clark, Stolz and Marshall, JJ., dissent. Argued April 9, 1975 Decided June 13, 1975 Rehearing denied July 16, 1975 Irwin M. Levine, for appellants. Nall, Miller & Cadenhead, Robert B. Hocutt, Saveli, Williams, Cox & Angel, Edward L. Saveli, Elmer L. Nash, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Marion H. Allen, Charles O. Baird, Jr., Lester Welch, James Pratt, for appellees.