Auerbach v. Padgett

• Decision Date: 08 June 1970
• Docket Number: No. 45249,No. 2,45249,2
• Citation: 176 S.E.2d 193,122 Ga.App. 79
• Parties: Bennie AUERBACH et al. v. Lois C. PADGETT
• Court: Georgia Court of Appeals

Page 193

176 S.E.2d 193

122 Ga.App. 79

Bennie AUERBACH et al. v. Lois C. PADGETT.

No. 45249.

Court of Appeals of Georgia, Division No. 2.

June 8, 1970.

Rehearing Denied June 24, 1970.

Edwards, Bentley, Awtrey & Parker, Scott S. Edwards, Jr., Marietta, for appellants.

Richard L. Powell, Marietta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Plaintiff sued the owners of an apartment complex in which she was a tenant seeking recovery for injuries sustained when she fell January 10, 1968, on a walkway leading from the apartment to a parking lot where her car was kept, alleging that the owners had been negligent in failing to remove from the walkway ice which had accumulated from rain and sleet that started falling on the afternoon or evening of January 8 and which had continued until some time during the night of January 9. Defendants obtained a deposition from plaintiff and on the basis of that, together with her pleadings, and of an affidavit from the resident manager of the apartments, moved for summary judgment. Plaintiff filed her affidavit in opposition. In both her deposition and her affidavit plaintiff testified that because of the weather she remained in her apartment from the evening of January 8 until about 10 minutes of 8 o'clock the morning of January 10, when she left it to take her child to school (school having been closed because of weather conditions on January 9); that the ice on the ground and walkway had all melted away some time during the night except for a place in a depression of the walkway from one-half to an inch deep and about a foot wide, and that because water was standing over the ice she did not see it. She stepped on the 'wet place' and thereupon slipped and fell because ice was beneath the standing water. Other than this small place the walkway was dry and free of ice, as was the ground on both sides of it. She could have stepped over the place, or around it on either side, but did not. The resident manager testified that while he knew of the weather (rain and sleet), he had no knowledge of the ice on which plaintiff stepped and fell, that he knew of no other tenant in the 188 units who fell from stepping on ice, and that he did not know of plaintiff's experience until about two weeks later. Summary judgment was denied, and defendants appeal. Held:

Under these facts we think the ruling made in Fincher v. Fox, 107 Ga.App. 695, 131 S.E.2d 651 is controlling and consequently we reverse. There is no issue of material fact. Negligence (breach of duty) on the part of the owners does not appear.

The ice accumulation was, at most, a temporary one and even if it be said that a duty devolved upon the owners to remove accumulations of sufficient size or quantity to present hazardous conditions which people using the walkway could not avoid in the exercise of ordinary care, it would not arise until the passage of a sufficient length of time after cessation of the falling rain and sleet to afford reasonable opportunity to remove it, and in this connection the melting which had taken place during the preceding night must be taken into account. The spot of ice which had not yet fully melted and on which plaintiff deliberately stepped was very small, and the melting had all but cleared the walkway and it had fully cleared the ground on each side. It would be unreasonable to hold, under these conditions, that the owners were charged with notice of the existence of this small remaining bit of ice or that they should have searched it out and removed it. It would, in effect, be holding that the owners are insurers of the safety of their premises, which they are not. Ross v. Jackson, 123 Ga. 657, 658, 51 S.E.2d 578; Tinley v. F. W. Woolworth Co., 70 Ga.App. 390, 393, 28 S.E.2d 322; Rich's, Inc. v. South, 91 Ga.App. 487, 488, 85 S.E.2d 774. The duty owed to one who is lawfully on the premises and not a mere licensee, is that of ordinary care. Mandeville Mills v. Dale, 2 Ga.App. 607, 58 S.E. 1060. 'The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully on the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. 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.' (Emphasis supplied.) 20 RCL 56, § 52, cited with approval in Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 173, 138 S.E.2d 77. 'An invitee who is as fully aware of the dangers and defects of the premises of the proprietor as is the proprietor himself, in coming on such premises assumes the risks thereon, and cannot recover from the defendant for injuries resulting by reason of such dangers and defects. Since the evidence here demands this finding, the trial court did not err in directing verdicts in favor of the defendant.' Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 81 S.E.2d 721. The evidence here shows without conflict that the plaintiff had at least equal knowledge of the conditions; it was...