Lane v. Maxwell Bros. & Asbill, Inc.

222 S.E.2d 184, 136 Ga. App. 712, 1975 Ga. App. LEXIS 1469

• Court: Court of Appeals of Georgia
• Decided: November 24, 1975
• Docket: 51025
• Status: Published

Opinions

Deen, Presiding judge.

Appellant urges that appellee was negligent in creating and maintaining a hazardous condition on its premises and in failing to exercise the degree of care required under the circumstances. "Platforms are usual things in stores where goods or wares of a merchant are displayed. They are not inherently dangerous. The evidence here shows that there was nothing unusual or dangerous in the manner in which the platform was placed. The platform as shown by the photographs was illuminated and obvious to anyone when exiting the escalator. When they are placed so as to not threaten or endanger those visiting the store, within full sight and observation, the merchant is not liable for accidents caused by the carelessness and inattention of others;” Rich’s, Inc. v. Waters, 129 Ga. App. 305 (199 SE2d 623). The facts in Rich’s, Inc. reveal a situation remarkably similar to that in the case sub judice; based upon the holding in this case and others we are compelled to affirm the granting of summary judgment.

The test in such situations has been stated to be whether the rise is so inherently dangerous that, assuming the exercise of ordinary care for her own safety, plaintiff could still have fallen. Cash & Save Drugs, Inc. v. Drew, 124 Ga. App. 721 (185 SE2d 786). The platform involved here as shown in photographic evidence was illuminated and obvious to anyone exercising ordinary care for his own safety. The allegation that the platform had the same capacity as the floor offers no basis for recovery; appellant had successfully negotiated the rise in order to view the items displayed thereon and was therefore aware of the potential hazard involved in walking across it or in descending from it. Being aware of the elevation, any deception or optical illusion which may have contributed to her injury was negated. Rich’s, Inc. v. Waters, 129 Ga. App. 305, supra; Korn v. Tamiami Trail Tours, Inc., 108 Ga. App; 510 (133 SE2d 616). Appellant was under a duty to use her sight to discover any defects or dangers. Herschel McDaniel Funeral Home v. Hines, 124 (183 SE2d 7). Allegations that it was negligent to fail to place guard rails around the platform or to place warning signs in close proximity are without merit; warnings of conditions which are or should be obvious are not required. Herschel McDaniel Funeral Home, supra.

We are aware that issues of negligence are not usually susceptible to resolution by summary judgment but should be left to adjudication in a trial. Where, as here, however, the pleadings and evidence reveal that the rise was not so inherently dangerous that one would have still fallen assuming the exercise of ordinary care, there is no actionable negligence. Rich’s, Inc., supra. There being no genuine issue as to material fact, summary judgment was properly granted.

Judgment affirmed.

Bell, C. J., Quillian, Clark, Stolz and Marshall, JJ., concur. Pannell, P. J., Evans and Webb, JJ., dissent.