Metromedia Steakhouses Co., LP v. Ray

466 S.E.2d 618, 219 Ga. App. 716, 96 Fulton County D. Rep. 40, 1995 Ga. App. LEXIS 1114

• Court: Court of Appeals of Georgia
• Decided: December 5, 1995
• Docket: A95A1771
• Status: Published

Opinions

McMurray, Presiding Judge.

Reverend Frank Ray (plaintiff) brought this tort action seeking to recover for personal injuries received when he slipped and fell while an invitee of defendant Metromedia Steakhouses Company, L. P. (“Metromedia”). The evidence adduced at trial showed that plaintiff slipped and broke his leg while walking up a yellow, sloping wheelchair ramp leading to Metromedia’s Ponderosa Steakhouse in Macon, Georgia. At the time, it was raining and the ramp was wet. There is no railing to this short ramp, nor is there any warning sign indicating that the ramp can become slippery when wet. Plaintiff had previously traversed this ramp as many as “50, 100 [times], or better.” But he had never done so in the rain. Robin William Lyons, Jr., a former general manager of Metromedia’s Ponderosa Steakhouse in Macon, Georgia, testified that his then-subordinate, Ken “Vaughn[,] and several other employees did indicate to me that someone fell on the premises before Mr. Ray did.” Plaintiff’s Exhibit 1 is the incident report of this prior injury, as made out by Ken Vaughn on February 2, 1992. This report recites that “Customer alleges as she was leaving unit she slipped on handicapped ramp and twisted her leg[,] falling to ground.” This report specifically identified the “parking lot handicapped access ramp with yellow paint” as the object or substance which directly injured the customer. The victim of that prior fall, Juanita Zodun, affirmed that “when [she] fell it had been raining[.]”

The trial court’s charge to the jury included an instruction that “[e]very person has a duty to use ordinary care for his . . . own safety. If you should determine from the evidence that Plaintiff failed to use ordinary care and that this failure was the sole proximate cause of Plaintiff’s injuries, then the Plaintiff could not recover from the Defendant.” The jury nevertheless “found for the Plaintiff in the sum of $40,000.” Defendant appeals from the judgment entered on this verdict. Held:

1. “Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (1) (417 SE2d 383).” R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 581 (1) (a) (451 SE2d 812) (physical precedent). Consequently, the issue raised in Metromedia’s first enumeration is moot and presents nothing for decision on appeal.

2. In related enumerations, Metromedia contends the trial court erred in denying its motion for directed verdict. Metromedia argues first that plaintiff failed to exercise ordinary care for his own safety. Metromedia further argues that the evidence failed to show that it had superior knowledge of the hazard posed by the wet ramp. We disagree.

“A directed verdict is proper only ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict(.)’ OCGA § 9-11-50 (a).” Vickery Ins. Agency v. Chambers, 215 Ga. App. 48, 50 (449 SE2d 885). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491). In our view, the evidence authorized the jury’s verdict in favor of plaintiff based on the knowledge of Metromedia that the yellow painted ramp was slippery when wet and the absence of such knowledge on the part of plaintiff. This is sufficient evidence to go to the jury and to authorize plaintiff’s recovery under the authority of Alterman Foods v. Ligon, 246 Ga. 620, 621 (272 SE2d 327). See, e.g., Martin v. Sears, Roebuck & Co., 253 Ga. 337, 338 (320 SE2d 174). Since as the dissent concedes, plaintiff had never previously traversed this ramp in the rain, we do not agree that the hazard of a wet ramp was, as a matter of law, “a longstanding, patently open and obvious condition which could have been discovered through the exercise of ordinary care.” (Dissent, post). Any reliance upon Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) is misplaced. In Quise, there was no invisible slippery hazard posed by rain. Rather, that plaintiff “assumed she slipped on the sloped threshold of the door where she fell.” Id. Moreover, in Quise, it was undisputed that “several ‘Watch Your Step’ signs were posted in the restaurant, including one posted to the right of the door opening where [that] plaintiff fell.” Id. Unlike the case sub judice, in Quise, that plaintiff was warned of the very danger to which she attributed her fall but failed to heed that warning. Consequently, her failure to exercise ordinary care for her own behalf was the legal cause of her injuries. In the case sub judice, Metromedia does not present evidence that it had a railing on the ramp or a warning that the slope was slippery when wet. Furthermore, the hazard posed by accumulated water is completely distinguishable from the invisible danger posed by a slippery incline where water cannot accumulate. Consequently, cases such as Layne v. Food Giant, 186 Ga. App. 71 (366 SE2d 402), are inapposite and the dissent’s reliance thereon is misplaced. Since the hazard of the wet, sloping ramp is not open and obvious, this case falls within the general rule that the question whether plaintiff failed to exercise ordinary care is to be resolved by the jury and not by the courts. Whitley v. Hulon, 194 Ga. App. 363, 364 (390 SE2d 598). The jury’s verdict resolved that issue, as well as credibility issues posed by the self-serving and impeached testimony of Metromedia’s manager, Ken Vaughn, against Metromedia and in favor of plaintiff. In our view, we are not authorized to disturb the judgment entered on that verdict for any grounds alleged in Metromedia’s motion for directed verdict. The trial court correctly denied Metromedia’s motion for directed verdict.

Judgment affirmed.

Beasley, C. J., Pope, P. J., Blackburn and Ruffin, JJ., concur. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.