Freyer v. Silver

507 S.E.2d 7, 234 Ga. App. 243

• Court: Court of Appeals of Georgia
• Decided: February 8, 1999
• Docket: A97A0172
• Status: Published

Opinions

McMurray, Presiding Judge.

In this slip-and-fall case, plaintiff Linda Silver sought to recover for personal injuries she sustained in a parking lot owned by defendants Fred R. Freyer, Jr., Richard J. Uberto, and Domus Properties, a Georgia partnership (“the Domus defendants”), as she was approaching defendant Folks, Inc.’s restaurant in Smyrna, Georgia. According to the complaint, plaintiff fell and “seriously injure[d] her foot and ankle because of a dangerous and defective storm drain which was unsafely placed and constructed. Defendants and their employees [allegedly] knew by virtue of a similar incident which preceded the injury suffered by Plaintiff. . . that the storm drain in the parking lot created an unreasonable risk of injury to invitees. . . .” In their respective answers, defendants denied the material allegations. After discovery, the Domus defendants, as well as defendant Folks, Inc., moved for summary judgment, contending the hazard complained of “was open, obvious and should have been apparent to [plaintiff], such that her failure to exercise ordinary care for her own safety precludes recovery. . . .” Viewed in the light most favorable to plaintiff as the non-movant, the record authorizes the following recitation of facts: On May 23, 1992, plaintiff went to a Po Folks restaurant operated by defendant Folks, Inc. and located in a shopping center owned by Domus Properties. Defendants Freyer and Uberto are the general partners of Domus and had purchased the shopping center in 1991, after its construction. Prior to the purchase, defendant Freyer retained architect Gary Coursey and the two walked the property so Coursey could evaluate it from a structural standpoint. At his deposition, defendant Freyer testified that the Domus defendants were responsible for striping the parking lot, paving the parking lot, and patching the parking lot. Under the terms of the lease with defendant Folks, Inc., it was “[provided that reasonable access to the Premises and the parking facilities in the Shopping Center are not materially and adversely reduced or impaired, [the Domus defendants retained the right to] increase, or change the dimensions or location of the walkways, buildings and parking areas from time to time . . . in any manner whatsoever. . . .” But defendant Freyer “thought that the Po Folks people have kind of maintained that area [around the restaurant].”

Plaintiff Silver had been to this Po Folks before, but had eaten inside. May 23, 1992, was “a pleasant day. . . .” Near dinner time and while it was still daylight, plaintiff Silver went to Po Folks to order take out. She parked her car in one of two spots designated for “To Go” parking. The designated spot in which she parked was parallel and directly adjacent to a catch basin for draining water from the parking lot. She pulled straight into the parking place, such that the catch basin ran along the passenger side of her car with a manhole cover directly above the basin in the sidewalk. She exited from the driver’s side, went in, ordered her food, and then returned to the car to wait for it, since her dog remained in the car. She did not cross the catch basin either going into the restaurant or coming out. After returning to her car, plaintiff stood by the passenger side, next to the catch basin. When she fell, plaintiff’s feet were pointing toward the catch basin.

Asked what caused her to fall, plaintiff Silver testified as follows: “I must have just shifted my weight or moved my foot a little, and all of a sudden I went sliding down with both feet into this area. . . .” She “went down so fast on both feet, and . . . landed on [her] butt with both feet on the ground and in a kind of a sitting position.” It was now “like early dusk.” Plaintiff could not say whether the light conditions had anything to do with her fall. When queried why she fell, plaintiff answered: “Because there was a hole there. There was an area that was slanting down that I did not see, and I couldn’t see. ... It looked straight.” (Emphasis supplied.) When asked if anything prevented her from seeing the area that slanted down, plaintiff responded: “There was no way I could see it. It looked as if it was a very safe place and a flat place to stand.” Plaintiff had “walked by and looked and was standing there, and everything seemed perfectly safe to [her].” Asked about the differentiation of color between blacktop and concrete, plaintiff acknowledged a distinction, “but [insisted that] if you go back to where there is a shadow, to me, that night it did not stand out as it does in contrast in this picture. And for the color, that’s what you’re talking about, the color.” (Emphasis supplied.)

Defendants’ Exhibit B consists of two color photographs showing the catch basin. Exhibit C shows that the lip is neither flat nor gradually sloping but declines steeply into the drainage area. While the concrete lip is lighter than the parking area of black asphalt, that lip has become darkened and dingy with time.

In reply to defendants’ motions, plaintiff Silver submitted the affidavit of Seymour W. Liebmann, a licensed professional engineer, who deposed that the catch basin was defectively designed and constructed. Specifically, the interface between the “To Go” parking space and the adjacent storm drain was unsafe because the level parking lot asphalt “drops precipitously into the catch basi[n] at a very sharp and unsafe angle.” Engineer Liebmann further deposed that the space immediately adjacent to the catch basin “should not have been used as a parking space . . .” because of the sharp drop-off at the edge of the pavement; because a rough joint exists, due to this sudden change in elevation, and because there were no safety markings.

The trial court denied defendants’ motions for summary judgment, but certified its order for immediate review. The joint application of all defendants for interlocutory review of that denial was granted, and in Freyer v. Silver, 227 Ga. App. 253 (488 SE2d 728) (1997), a majority of this Court reversed, concluding the catch basin into which plaintiff fell was a static open and obvious condition of which the owner had no duty to warn her. The Supreme Court of Georgia granted plaintiff’s petition for certiorari, vacated this Court’s prior judgment, and remanded the case to this Court for reconsideration in light of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Held:

1. Pursuant to the direction of the Supreme Court of Georgia, our prior judgment, reported at 227 Ga. App. 253, supra, is vacated.

2. Contrary to the dissent’s unsupported assertion, this case does not involve the so-called first prong of the test for liability established by Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). It is a defendant’s actual or constructive knowledge of the alleged hazard which constitutes the first prong. Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (1) (498 SE2d 748) (whole court). See also Robinson v. Kroger Co., 268 Ga. 735 (1), 736, supra. “ ‘The liability of a proprietor under (OCGA § 51-3-1) which results from failure to keep the premises [and approaches] safe always depends on notice of the danger except where notice is presumed, as in cases of defective construction.’ Veterans Organization v. Potter, 111 Ga. App. 201, 205 (141 SE2d 230) (1965).”Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1), 814 (318 SE2d 235). Moreover, the owner/occupier’s duty to exercise ordinary care “includes inspecting the premises to discover possible dangerous conditions of which the owner/ occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises. [Cits.]” Robinson v. Kroger Co., 268 Ga. 735 (1), 740, supra.

The case sub judice involves allegedly defective construction. Knowledge that the designated “To Go” parking space closely adjoins the deceptively steep catch basin is therefore presumed on the part of the defendant owners and the defendant occupier, when considering their motions for summary judgment. Consequently, the applicable inquiry is directed to the second prong: whether the record shows plainly, palpably and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or, would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety. Each defendant retains “the evidentiary burden as to the issue of the plaintiffs negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent. . . .” Robinson v. Kroger Co., 268 Ga. 735, 743 (2), 746 (2) (b), 748, supra.

3. Relying on MARTA v. Fife, 220 Ga. App. 298 (469 SE2d 420), defendants contend the trial court erred in denying summary judgment, arguing the “catch basin in question is ‘transparently obvious.’ There is a [purportedly] clear contrast between the curbing and the blacktop. The hole and slope are wide and obvious. Had Ms. Silver only looked down, she would have seen the danger and avoided it. However, the record shows she did not look.”

Recognizing the very close factual similarity between MARTA v. Fife, 220 Ga. App. 298, supra, and the case sub judice, we are nevertheless bound to follow the applicable and controlling authority of Robinson v. Kroger Co., 268 Ga. 735 (1), 743, supra, where “the Supreme Court of Georgia ‘disapprove(d) of the appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the fall constitutes a failure to exercise ordinary care.’ Id. That Court held ‘an invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that [s]he did not look at the site on which [s]he placed [her] foot or that [s]he could have seen the hazard had [s]he visually examined the [ground] before taking the step which led to [her] downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.’ Id. at 748 [(2) (b)].” Sadtler v. Winn-Dixie Stores, 230 Ga. App. 731, 732-733 (498 SE2d 101) (1998), cert. denied.

In the case sub judice, the photographic evidence indicates the color contrast between the level black pavement and the precipitously steeply sloping concrete that has become dingy and weathered is not so stark as defendants insist. Plaintiff pointed this out in her deposition. Moreover, such color contrast as exists reveals nothing about the sudden and deceptive declivity of the catch basin. Whether the manhole cover embedded in the concrete over the catch basin should have alerted plaintiff remains a question for the jury to determine, for it is the plaintiff’s knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids. Gourley v. Food Concepts, 229 Ga. App. 180 (493 SE2d 587) (whole court). “The ‘plain view’ doctrine is the equivalent of the ‘constructive knowledge’ aspect of voluntary negligence on the part of the plaintiff.” Robinson v. Kroger Co., 268 Ga. 735 (1), 743, supra. Reasonable minds can differ as to whether plaintiff should have seen and avoided the hazard presented by the sharp, unmarked drop-off to the catch basin. We hold the case sub judice falls within the general rule, as recently pronounced by the Supreme Court of Georgia: “ ‘[I]ssues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication . . . but should be resolved by trial in the ordinary manner. (Cit.)’ ” Robinson v. Kroger Co., 735 (1), 739, supra. The trial court correctly determined that genuine issues of material fact remain for jury resolution.

Judgment affirmed.

Johnson, R J., Smith, Ruffin and Eldridge, JJ, concur. Andrews, C. J., and Beasley, J., dissent.