Bell v. ABERCORN TOYOTA, INC.

333 S.E.2d 880, 175 Ga. App. 668, 1985 Ga. App. LEXIS 2135

• Court: Court of Appeals of Georgia
• Decided: July 11, 1985
• Docket: 70199
• Status: Published

Opinions

Carley, Judge.

The business premises of appellee-defendant Abercorn Toyota, Inc. face Abercorn Street. To the left side of the sales building is a drive which leads through a gateway into a fenced area at the rear of the premises. The drive is bounded on the right by a sidewalk immediately adjacent to the sales building. On November 10, 1982, as one turned off Abercorn Street into the drive and headed toward the service area at the rear of the sales building, there was a raised speed breaker which was the same color as the asphalt drive. In addition to being unpainted, the speed breaker was not otherwise marked to distinguish it from the drive. The speed breaker extended across the entire width of the drive and was apparently without defect in construction. The speed breaker also was of uniform width and height throughout its length.

On the morning of November 10, appellant-plaintiff Mrs. Mildred Bell drove her Toyota to appellee’s place of business and turned into the drive leading toward the service area in the rear of the sales building. She observed the speed breaker as she drove toward the gate and she slowed to cross over it. She remembered her car bumping over that breaker as well as at least one other after she drove through the gate. A friend who had followed appellant remained at the head of the drive and to the side of the sales area. Appellant left her Toyota in appellee’s service department and walked back up the drive toward the place where her friend was waiting, crossing over both speed breakers without incident. After she got into her friend’s car, appellant realized that she had not obtained the phone number of the service department. She got out of her friend’s car and, rather than walking directly down the drive to the service department, she decided to get the information in the sales building. To reach the side door of the sales building, she had to use the sidewalk that was adjacent to the side of the sales building. Appellant’s path to the sidewalk was down as well as across the drive and thus at an oblique angle to the first speed breaker. She looked down as she approached the sidewalk but failed to notice that the point at which she would reach the sidewalk was also the point at which the speed breaker intersected the sidewalk. As appellant stepped up to the sidewalk, she stubbed her foot on the unseen raised speed breaker and fell forward striking her knee on the edge of the sidewalk. She sustained a serious injury.

Appellant brought the instant suit, alleging negligence on the part of appellee in failing to paint the speed breaker a different color or in otherwise failing to call attention to the potential hazard that it presented. Appellant maintained she did not see the speed breaker because it was the same color as the other asphalt and because the sales room was attractively arranged so as to distract her attention. Appellee moved for summary judgment based upon appellant’s equal knowledge of the hazard. The trial court granted summary judgment in favor of appellee and this appeal followed.

Two elements must exist in order for an invitee to recover for a proprietor’s negligent failure to maintain safe premises: (1) fault on the part of the proprietor; and (2) ignorance of the danger on the part of the invitee. The basis of the proprietor’s liability thus is founded in his superior knowledge. If the invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor. By voluntarily acting in view of that knowledge, the invitee assumes the risk and dangers incident to the known condition. Tect Constr. Co. v. Frymyer, 146 Ga. App. 300, 302 (246 SE2d 334) (1978).

Appellee relies upon Backer v. Pizza Inn, 162 Ga. App. 682 (292 SE2d 562) (1982) as authority for the grant of summary judgment in its favor based upon appellant’s equal knowledge. There is, however, a significant factual distinction between Backer and the instant case. In Backer, there was no difference between the way the cross ties were situated at the point where the plaintiff stepped over them and at the point where he later tripped and injured himself. In this case, however, the point at which appellant crossed the speed breaker by car and by foot prior to falling was some distance away from the point of her subsequent injury, which was at the juncture of the speed breaker with the sidewalk. The speed breaker was the same color as the other asphalt and she actually tripped on the speed breaker as she attempted to get on the sidewalk, not — as on the two previous occasions — as she simply crossed over the speed breaker. “ ‘[Knowledge of defect’ should not be confused with ‘knowledge of danger.’ [Cit.]” Firestone Service Stores v. Gillen, 58 Ga. App. 782, 787 (199 SE 853) (1938). As was true in Gillen, “we can not say under these circumstances that a conclusion, as a matter of law, is demanded that the plaintiff should have had a full appreciation of the danger, and that in the exercise of ordinary care she should have avoided the injury herself. This, we think, is a question for the jury.” Firestone Service Stores v. Gillen, supra at 787. The trial court erred in granting summary judgment in favor of the appellee on the basis of appellant’s equal knowledge. See Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812 (318 SE2d 235) (1984).

Judgment reversed.

Banke, C. J., McMurray, P. J., Pope and Benham, JJ., concur. Deen, P. J., Birdsong, P. J., Sognier and Beasley, JJ., dissent.