Butts v. Academy of Beauty, Inc.

Court of Appeals of Georgia

Butts v. Academy of Beauty, Inc.

160 S.E.2d 222, 117 Ga. App. 222, 1968 Ga. App. LEXIS 1039

CourtCourt of Appeals of Georgia

DecidedFebruary 12, 1968

Docket43190

StatusPublished

Cited by14 cases

This text of 160 S.E.2d 222 (Butts v. Academy of Beauty, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butts v. Academy of Beauty, Inc., 160 S.E.2d 222, 117 Ga. App. 222, 1968 Ga. App. LEXIS 1039 (Ga. Ct. App. 1968).

Pincite

Opinions

Deen, Judge.

1. The fact that a defect or hazard is patent will not of itself necessarily bar a plaintiff invitee, injured as the result of falling in the defendant’s establishment, from recovery. Lane Drug Stores, Inc. v. Brooks, 70 Ga. App. 878 (29 SE2d 716). This is particularly true where the plaintiff has no knowledge that the hazard exists, and is prevented from seeing it by some act of the defendant which distracts her attention. Mason v. Frankel, 49 Ga. App. 145 (174 SE 546); Glover v. City Council of Augusta, 83 Ga. App. 314 (63 SE2d 422); Miller v. Bart, 90 Ga. App. 755 (84 SE2d 127).

[223]*2232. A combination of two or more circumstances, although no one may be sufficient of itself to constitute actionable negligence, may, if it results in harm to the plaintiff, in its totality be sufficient to state a cause of action in tort. Pilgreen v. Hanson, 89 Ga. App. 703 (81 SE2d 18).

3. Every negligence case must be judged by its own facts. Where it is alleged that due to one or a combination of circumstances a hazard, although otherwise patent, was not seen or noticed by the plaintiff because its construction or maintenance created an optical illusion which made it appear that such hazard ' did not in fact exist, it is usually a jury question, unless this court can say as a matter of law that such combination of facts as alleged could not create the sensory impression alleged, whether the maintenance of the premises in the manner alleged constitutes negligence. Pilgreen v. Hanson, 89 Ga. App. 703, supra; Kitchens v. Davis, 96 Ga. App. 30 (99 SE2d 266); Spindel v. Gulf Oil Corp., 100 Ga. App. 323 (111 SE2d 160); Moore v. Sears, Roebuck & Co., 42 Ga. App. 658 (157 SE 106); Fuller v. Louis Steyerman & Sons, 46 Ga. App. 830 (169 SE 508); Smith v. Swann, 73 Ga. App. 144 (35 SE2d 787); DeLay v. Rich’s, Inc., 86 Ga. App. 30 (70 SE2d 546); Whitsett v. Hester-Bowman Enterprises, 94 Ga. App. 78 (93 SE2d 212); Starr v. Emory University, 93 Ga. App. 864 (93 SE2d 399); Wynne v. Southern Bell Tel. &c. Co., 159 Ga. 623 (126 SE 388); Chotas v. J. P. Allen & Co., 113 Ga. App. 731 (149 SE2d 527).

4. The petition alleges that plaintiff entered the defendant’s premises to have her hair shampooed and set; that after she had been waited on and was leaving the immediate area of treatment, the beauty operator called to her with a request for another appointment, and as she turned her head toward the speaker she fell from the upper level to the lower level, which was approximately a six-inch drop. She did not know there was a difference in floor levels, and in walking toward the step or drop she did not notice it because the floor was laid out in a diagonal pattern of black with white squares which, under the brilliant illumination used, gave the appearance of continuity of floor with the floor pattern so that there was nothing to warn her of a change in level. Under the principles of law above set forth, these allegations are sufficient to withstand general demurrer.

5. As to the demurrer seeking to strike an amendment filed after [224]*224a general demurrer had been sustained with leave to amend, on the ground that the amendment was merely an elaboration of facts originally averred and added no matter of material substance, “We do not agree with such cases as Glover v. S. F. & W. R. Co., 107 Ga. 34 (32 SE 876); Hamer v. White, 110 Ga. 300 (34 SE 1001); Speer v. Alexander, 149 Ga. 765 (102 SE 150); and Lavenden v. Haseman, 157 Ga. 275 (121 SE 646), and similar cases holding that, by electing to amend, the petitioner has conceded that his original petition was defective and is thereafter estopped to say an amendment was not necessary. If he amends, no law of the case is established that his original petition was defective unless he fails to amend and appeal promptly as in Northside Manor v. Vann, 219 Ga. 298 (133 SE2d 32).” Peacock Constr. Co. v. Chambers, 223 Ga. 515, 517 (156 SE2d 348).

Submitted November 9, 1967 Decided February 12, 1968. Schwall & Hewett, Emory A. Schwall, Thomas C. Jones, Jr., for appellant. Lokey & Bowden, Glenn Frick, for appellee.

The trial court erred in sustaining the general demurrers.

Judgment reversed.

Felton, C. J., Hall, Panned, and Whitman, JJ., concur. Bed, P. J., Jordan, P. J., Eberhardt and Quillian, JJ., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

Deen, Judge.

1. The fact that a defect or hazard is patent will not of itself necessarily bar a plaintiff invitee, injured as the result of falling in the defendant’s establishment, from recovery. Lane Drug Stores, Inc. v. Brooks, 70 Ga. App. 878 (29 SE2d 716). This is particularly true where the plaintiff has no knowledge that the hazard exists, and is prevented from seeing it by some act of the defendant which distracts her attention. Mason v. Frankel, 49 Ga. App. 145 (174 SE 546); Glover v. City Council of Augusta, 83 Ga. App. 314 (63 SE2d 422); Miller v. Bart, 90 Ga. App. 755 (84 SE2d 127).

[223]*2232. A combination of two or more circumstances, although no one may be sufficient of itself to constitute actionable negligence, may, if it results in harm to the plaintiff, in its totality be sufficient to state a cause of action in tort. Pilgreen v. Hanson, 89 Ga. App. 703 (81 SE2d 18).

3. Every negligence case must be judged by its own facts. Where it is alleged that due to one or a combination of circumstances a hazard, although otherwise patent, was not seen or noticed by the plaintiff because its construction or maintenance created an optical illusion which made it appear that such hazard ' did not in fact exist, it is usually a jury question, unless this court can say as a matter of law that such combination of facts as alleged could not create the sensory impression alleged, whether the maintenance of the premises in the manner alleged constitutes negligence. Pilgreen v. Hanson, 89 Ga. App. 703, supra; Kitchens v. Davis, 96 Ga. App. 30 (99 SE2d 266); Spindel v. Gulf Oil Corp., 100 Ga. App. 323 (111 SE2d 160); Moore v. Sears, Roebuck & Co., 42 Ga. App. 658 (157 SE 106); Fuller v. Louis Steyerman & Sons, 46 Ga. App. 830 (169 SE 508); Smith v. Swann, 73 Ga. App. 144 (35 SE2d 787); DeLay v. Rich’s, Inc., 86 Ga. App. 30 (70 SE2d 546); Whitsett v. Hester-Bowman Enterprises, 94 Ga. App. 78 (93 SE2d 212); Starr v. Emory University, 93 Ga. App. 864 (93 SE2d 399); Wynne v. Southern Bell Tel. &c. Co., 159 Ga. 623 (126 SE 388); Chotas v. J. P. Allen & Co., 113 Ga. App. 731 (149 SE2d 527).

4. The petition alleges that plaintiff entered the defendant’s premises to have her hair shampooed and set; that after she had been waited on and was leaving the immediate area of treatment, the beauty operator called to her with a request for another appointment, and as she turned her head toward the speaker she fell from the upper level to the lower level, which was approximately a six-inch drop. She did not know there was a difference in floor levels, and in walking toward the step or drop she did not notice it because the floor was laid out in a diagonal pattern of black with white squares which, under the brilliant illumination used, gave the appearance of continuity of floor with the floor pattern so that there was nothing to warn her of a change in level. Under the principles of law above set forth, these allegations are sufficient to withstand general demurrer.

5. As to the demurrer seeking to strike an amendment filed after [224]*224a general demurrer had been sustained with leave to amend, on the ground that the amendment was merely an elaboration of facts originally averred and added no matter of material substance, “We do not agree with such cases as Glover v. S. F. & W. R. Co., 107 Ga. 34 (32 SE 876); Hamer v. White, 110 Ga. 300 (34 SE 1001); Speer v. Alexander, 149 Ga. 765 (102 SE 150); and Lavenden v. Haseman, 157 Ga. 275 (121 SE 646), and similar cases holding that, by electing to amend, the petitioner has conceded that his original petition was defective and is thereafter estopped to say an amendment was not necessary. If he amends, no law of the case is established that his original petition was defective unless he fails to amend and appeal promptly as in Northside Manor v. Vann, 219 Ga. 298 (133 SE2d 32).” Peacock Constr. Co. v. Chambers, 223 Ga. 515, 517 (156 SE2d 348).

Submitted November 9, 1967 Decided February 12, 1968. Schwall & Hewett, Emory A. Schwall, Thomas C. Jones, Jr., for appellant. Lokey & Bowden, Glenn Frick, for appellee.

The trial court erred in sustaining the general demurrers.

Judgment reversed.

Felton, C. J., Hall, Panned, and Whitman, JJ., concur. Bed, P. J., Jordan, P. J., Eberhardt and Quillian, JJ., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

160 S.E.2d 222, 117 Ga. App. 222, 1968 Ga. App. LEXIS 1039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butts-v-academy-of-beauty-inc-gactapp-1968.

Opinions

Related

Cite This Page — Counsel Stack