Atkinson v. Kirchoff Enterprises, Inc.

• Decision Date: 17 November 1986
• Docket Number: No. 72336,72336
• Citation: 351 S.E.2d 477,181 Ga.App. 139
• Parties: ATKINSON v. KIRCHOFF ENTERPRISES, INC.
• Court: Georgia Court of Appeals

Page 477

351 S.E.2d 477

181 Ga.App. 139

ATKINSON v. KIRCHOFF ENTERPRISES, INC.

No. 72336.

Court of Appeals of Georgia.

Nov. 17, 1986.

Rehearing Denied Dec. 5, 1986.

Certiorari Denied Jan. 15, 1987.

Bruce V. Durden, Lyons, Kittrich R. Schilke, for appellant.

Julian B. Smith, Jr., for appellee.

BANKE, Chief Judge.

The appellant sued to recover for personal injuries she allegedly sustained when she slipped and fell outside a store owned by the appellee. She appeals the grant of the appellee's motion for summary judgment.

The appellant entered the appellee's store to have a prescription refilled and while there noticed that the appellee was undertaking a remodeling project. She exited with the intention of walking to another store located in the same shopping center but found the sidewalk blocked in that direction by a pile of construction debris. This debris, consisting of shelving and other material, had been placed on the sidewalk in connection with the appellee's remodeling project.

The appellant testified that she decided to attempt to traverse the debris rather than go around it because the latter alternative would have required her to walk into the street, which she described as heavily trafficked. She stated that the prospect of walking through the debris "was not an attractive one" and that she knew she would "have to be careful" in doing so. She maintains that she nevertheless slipped and fell on a sharp object while attempting to negotiate the debris, thereby injuring herself.

In determining that the appellee storeowner was entitled to summary judgment, the trial court found that the appellant had presented no evidence "that the [appellee] had actual or constructive knowledge of a danger" but had admitted "at least constructive knowledge [on her own part] of the existence of a hazardous condition ..." Held:

In order to establish a right of recovery against a storeowner for negligently allowing a hazardous or defective condition to exist on the premises, a plaintiff-invitee must prove that the owner had superior actual or constructive knowledge of the existence of the condition and of the danger presented thereby. See generally Rogers v. Atlanta Enterprises, 89 Ga.App. 903, 906-907, 81 S.E.2d 721 (1954); Speaks v. Rouse Co., 172 Ga.App. 9, 11, 321 S.E.2d 774 (1984). However, to prevail on motion for summary judgment, the defendant in such a case, as movant, has the burden of proof and thus must establish the absence of such superior knowledge on its part, with all doubts and conflicts in the evidence being resolved in favor of the plaintiff. See generally Ham v. Ham, 230 Ga. 43, 45, 195 S.E.2d 429 (1973). Sealy v. Western Broadcasting, 168 Ga.App. 493, 495, 309 S.E.2d 633 (1983).

Although the plaintiff-appellant in the present case was obviously well aware both of the existence of the construction debris and of the need to exercise caution in attempting to traverse it, it does not follow that she was fully aware, as a matter of law, of the full extent of the danger involved in doing so. It has repeatedly been held that "mere knowledge" of the existence of a dangerous or defective condition does not necessarily constitute "full appreciation of the risk involved." See, e.g., Scott v. Rich's, 47 Ga.App. 548, 551, 171 S.E. 201 (1933); Goldsmith v. Hazelwood, 93 Ga.App. 466, 469, 92 S.E.2d 48 (1956); Pippins v. Breman, 152 Ga.App. 226, 228, 262 S.E.2d 477 (1979). Indeed, there was a specific finding by the trial court that although the appellant knew the debris was on the sidewalk, "she may not have known of the dangerous sharp object concealed in the debris on which she stepped." Thus, the present case is distinguished from such cases as Forde v. C. & S. Ga. Corp., 178 Ga.App. 400, 343 S.E.2d 164 (1986); White v. Fred F. French Mgt. Co., 177 Ga.App. 661, 340 S.E.2d 276 (1986); Westall v. M & M Supermarkets, 174 Ga.App. 155, 329 S.E.2d 237 (1985); and League v. Marshall, 169 Ga.App. 32, 311 S.E.2d 192 (1983), wherein the plaintiffs' injuries resulted from contact with structural fixtures whose presence was both obvious and static.

The appellee, on the other hand, may reasonably be presumed to have had at least constructive knowledge of the contents of the construction debris and the danger presented thereby, since it was responsible for placing the debris on the sidewalk. Compare Rogers v. Atlanta Enterprises, supra; K-Mart Corp. v. Spruell, 173 Ga.App. 884, 328 S.E.2d 577 (1985); McGrew v. S.S. Kresge Co., 140 Ga.App. 149, 230 S.E.2d 119 (1976). It is well-settled that issues of negligence, diligence, contributory negligence, proximate cause, and assumption of risk are not to be decided by the court as a matter of law except in plain and indisputable cases. See, e.g., James v. Sears, Roebuck & Co., 140 Ga.App. 859, 232 S.E.2d 274 (1976). The evidence of record in the present case does not establish indisputably that the appellant's knowledge of the danger involved in attempting to walk through the pile of construction debris was equal to or greater than the appellee's. Consequently, the trial court erred in granting the appellee's motion for summary judgment.

Judgment reversed.

McMURRAY, P.J., and BENHAM, J., concur.

CARLEY and BEASLEY, JJ., concur specially.

DEEN and BIRDSONG, P.JJ., and SOGNIER and POPE, JJ., dissent.

BEASLEY, Judge, concurring specially.

I concur but not because the proof of superior knowledge was inconclusive. For me, the unresolved question for the jury is whether defendant's action presented plaintiff with two dangerous alternatives and, if it did, whether plaintiff acted with ordinary care in choosing the course which led to her injury. She was going to Sears, next door, to make a payment on her account during this weekly shopping trip.

Was she negligent in not going out in the busy street instead of through the debris across the walkway? Or would prudence require abandonment of her errand at the other store altogether? Did she voluntarily assume the risk of traversing the debris in light of all the circumstances? Although the dissent offers that she could have exited another door at Gibson's, there is no evidence in the record that such a third alternative route, exiting a door that went to the back of the pharmacy, existed. While the layout was described in connection with a drawing, the drawing is not in the record, so it is not established that retracing her route and then exiting through that door would have avoided the debris. Even if that door was below the debris, there is no evidence it was accessible to her as a means for customer exit. Nor is there evidence that traveling by car was an available means at that point. If it was, was its choice demanded as a matter of law?

It appears that Georgia has not fully articulated the choice of two alternatives theory except in sudden emergency cases. See Everett v. Clegg, 213 Ga. 168, 169, 97 S.E.2d 689 (1957). As to choice of routes, see Misenhamer v. Pharr, 99 Ga.App. 163, 166 (1), 107 S.E.2d 875 (1959). The theory is set forth in 65A CJS 75, Negligence § 122, especially p. 77; 40 AmJur2d 28, Highway § 558; 57 AmJur2d 746, Negligence § 344.

It has been recognized in Georgia, however, that one does not assume the risk if one's freedom of choice is restricted by either circumstances or coercion. Myers v. Boleman, 151 Ga.App. 506, 509 (3), 260 S.E.2d 359 (1979). Assumption of the risk involves voluntary conduct by plaintiff. Whitehead v. Seymour, 120 Ga.App. 25, 28 (4), 169 S.E.2d 369 (1969).

Where plaintiff of necessity must test a known danger, later authority tends towards permitting plaintiff to reach the jury where a necessity to use the "way" taken is shown. See Richardson v. Palmour Court Apts., 170 Ga.App. 204, 316 S.E.2d 770 (1984).

Here the act of defendant, in obstructing the sidewalk so as to create a hazard fraught with dangers to the public in its use of the sidewalk, confronted plaintiff with three choices. Whether she acted negligently in choosing the course taken, considering the circumstances and the alternatives, is a matter which should be determined by a jury. That she recognized or should have recognized the danger should not be dispositive; the question still remains, did she act negligently in light of it. As reiterated in Myers v. Boleman, supra, 151 Ga.App. at 508, 260 S.E.2d 359, "Questions of negligence, contributory negligence, cause and proximate cause, whose negligence, what negligence, including lack of care in avoiding the consequences of another's negligence, are, except in plain, palpable and indisputable cases, solely for jury determination." What amounts to the exercise of ordinary care under the circumstances is a jury question. Hand v. Harrison, 99 Ga.App. 429 (3), 108 S.E.2d 814 (1959). There is no evidence which absolutely resolves that issue as a matter of law. Thus, summary judgment would not be authorized. Manheim Svcs. Corp. v. Connell, 153 Ga.App. 533, 265 S.E.2d 862 (1980).

I am authorized to state that CARLEY, J., joins in this special concurrence.

SOGNIER, Judge, dissenting.

Appellant exited one of several doors to appellee's store with the intention of walking down the sidewalk to the neighboring Sears store. The 8 to 10 foot wide sidewalk which fronted appellee's store was abutted by a row of occupied parking spaces. Beyond the parking spaces was a well trafficked road. A 15-foot span of the sidewalk in between the door where appellant exited in the direction of the Sears store was littered sporadically with shelving and other building materials from a remodeling project in appellee's store. Appellant decided "to pick" her way through the scattered building material and began walking on the debris. Appellant stepped on a sharp object in a pile of building debris which pierced the open toed sandals she was wearing, causing her to fall. Appellant sued.

The majority reverses the trial court's grant of summary judgment in favor of appellee on the basis...