Globe Oil Co., USA v. DeLong

356 S.E.2d 47, 182 Ga. App. 395, 1987 Ga. App. LEXIS 1703

• Court: Court of Appeals of Georgia
• Decided: March 12, 1987
• Docket: 73399
• Status: Published

Opinions

Benham, Judge.

Appellee James DeLong drove his truck to the fuel pumps at appellant’s self-service gas station and convenience store. When he got out of the truck and walked around to the fuel pump, he tripped and fell over the uneven payment where the fuel pad, elevated slightly higher than the asphalt, joined the asphalt. The asphalt and surrounding concrete were crushed and filled with cracks. There were no signs or notices alerting customers of the existing conditions. Appellee testified that he had never patronized appellant’s station prior to his fall. The manager of the station on duty at the time of the incident testified she had had knowledge of the uneven, cracked pavement for almost a year before the incident.

The jury returned a verdict for appellee in the amount of $65,000. On appeal, appellant contends that the trial court erred in denying its motions for directed verdict on liability and damages, for judgment notwithstanding the verdict, and for new trial. The contention raised by appellant in each of its enumerations is that the law on superior knowledge precluded appellee’s recovery.

1. “Construing the evidence most favorably to upholding the jury verdict, the verdict was not contrary to law or the evidence. ‘The basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury. [Cit.]’ ” Great Atlantic &c. Co. v. Turner, 180 Ga. App. 533 (1) (349 SE2d 537) (1986). “It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. [Cit.]” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348 (2) (349 SE2d 241) (1986). The testimony by appellant’s former manager that the broken and uneven pavement had existed for almost a year was sufficient to impute superior knowledge to appellant. Id. Nevertheless, appellant contends that appellee had equal knowledge of the uneven pavement because he had walked across the pavement at least once. “The mere fact that one has been in the area before will not preclude him from recovery for injuries received from defective premises unless his failure to observe the defect amounts to a lack of that care which an ordinarily prudent person would exercise under the circumstances.” Kreiss v. Allatoona Landing, 108 Ga. App. 427 (2b) (133 SE2d 602) (1963). See also Shackelford v. DeKalb Farmer’s Market, supra. Such is the situation here. Appellee testified that while he was unsure what his foot hit to make him fall, when he fell he saw the cracked asphalt and uneven pavement. However the incident occurred, testimony by appellant’s former manager showed that appellant had prior knowledge of the existing dangerous conditions and did nothing to warn customers. “We cannot say that under these circumstances that a conclusion, as a matter of law, is demanded that the [appellee] should have had a full appreciation of the danger, and that in the exercise of ordinary care he should have avoided the injury to himself. This, we think was properly presented to the jury.” Robinson v. Western Intl. Hotels, 170 Ga. App. 812, 815 (318 SE2d 235) (1984).

Moreover, the distraction doctrine is applicable in this case. Appellee testified that tractor trailer trucks surrounded him and the diesel pump where he fell. “A possible confrontation with vehicular traffic on the property may be a significant ‘distraction’ for a pedestrian-invitee on the premises.” Shackelford v. DeKalb Farmer’s Market, supra at 351; Robinson v. Western Intl. Hotels Co., supra at 815-816. “The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. . . . The doctrine . . . cover [s] situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur. [Cit.]” Robinson v. Western Intl. Hotels Co., supra at 815. The evidence authorized a finding that appellee was distracted “by reason of present or reasonably to be anticipated dangers, resulting from being subjected to extremely close proximity to vehicular traffic. [Cit.]” Id. at 816.

2. As to the damages issue, there was sufficient testimony elicited from medical experts who gave their opinions on appellee’s condition. Appellee broke his thumb when he fell and subsequently suffered from pain in his side and hip. Appellant argues that appellee’s hip pain was from a pre-existing condition and not the result of his fall. However, appellee’s physician testified that the pain experienced by appellee was a result of his injury from the fall. The doctors also testified to past and future pain and suffering. “[Qjuestions concerning the amount of damages to be awarded for pain and suffering, past, present and future are for the enlightened conscience of the jurors. [Cits.] We decline to substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses.” Southern R. Co. v. Oliver, 177 Ga. App. 729 (5) (341 SE2d 270) (1986).

“In summary, [appellee] presented evidence of fault on the defendant’s part and ignorance of the hazard on [his] part, and the trial court thus properly declined to direct a verdict for [appellant] or grant judgment notwithstanding the verdict [or a motion for new trial].” Great Atlantic &c. Co. v. Turner, supra, Division 1.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., and Pope, J., concur. Carley and Beasley, JJ., concur specially. Deen, P. J., dissents. Sognier, J., concurs in judgment of dissent.