Begin v. Georgia Championship Wrestling, Inc.

• Decision Date: 07 September 1984
• Docket Number: No. 68536,68536
• Citation: 172 Ga.App. 293,322 S.E.2d 737
• Parties: BEGIN v. GEORGIA CHAMPIONSHIP WRESTLING, INC.
• Court: Georgia Court of Appeals

Page 737

322 S.E.2d 737

172 Ga.App. 293

BEGIN v. GEORGIA CHAMPIONSHIP WRESTLING, INC.

No. 68536.

Court of Appeals of Georgia.

Sept. 7, 1984.

Rehearing Denied Sept. 28, 1984.

Donald M. Comer II, Riverdale, for appellant.

Robert C. Lamar, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

Plaintiff, Willene B. Begin, appeals from the grant of summary judgment to the defendant, Georgia Championship Wrestling, Inc. Ms. Begin attended a wrestling exhibition in the Morrow High School gymnasium in which Georgia Championship Wrestling was the promoter. The ring was placed in the gymnasium and surrounded by sheets of heavy plastic strips to protect the gym hardwood floor. The pleadings allege that the plastic strips were approximately three feet in width. Ms. Begin stated that there were "little strips" of "masking tape" to hold the plastic strips together. "Instead of them having it completely closed with the masking tape they just had little strips across it. Like you had two pieces, and they put the strips across it and people walking across it got it torn loose ... It had been taped but not very good ... Eventually, some way my foot got in between the two seams, ..." and she fell. Ms. Begin was wearing low heeled shoes with rubber soles. She did not know how long the gap had been in existence between the two pieces of plastic where she fell. She suffered a ruptured disc in her spine which necessitated an operation. Defendant's Motion for Summary Judgment was granted, and plaintiff appeals. Held:

Morrow High School was the sponsor and Georgia Championship Wrestling was the promoter for this event. The plastic was placed on the floor by "agents and employees" of the high school. Ms. Begin purchased a ticket for this exhibition. Sales of tickets at the gym were apparently a joint effort of the local high school Booster Club and Georgia Championship Wrestling. Plaintiff was an invitee of Georgia Championship Wrestling, the promoter and occupier of the premises for the wrestling exhibition. The occupier of premises is charged with the duty of keeping the approaches and premises safe for invitees. OCGA § 51-3-1. An invitee may rely upon the discharge of this duty by the person occupying the land and therefore is not necessarily, and as a matter of law, guilty of negligence in failing to discover the existence of a patent defect in the premises which renders it unsafe for a person coming upon the premises. Winn-Dixie Stores v. Hardy, 138 Ga.App. 342(2), 226 S.E.2d 142. "Where the danger is not apparent, the possessor of the land has the duty to exercise ordinary care to make the condition reasonably safe or to give a warning adequate to enable the invitee upon the premises to avoid harm." Knowles v. Larue, 102 Ga.App. 350, 353, 116 S.E.2d 248. The occupier is not an insurer of the safety of his invitee but the law requires such diligence toward making the premises safe as the ordinarily prudent businessman in such matters is accustomed to use. Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 344, 226 S.E.2d 142, supra. An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. Prosser, Law of Torts (4th Ed.) 393, § 61. An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. 2 Restatement of Torts 216, § 343. It is this implied representation that is made to the public, by holding the land open to them, that it has been prepared for their reception, that it is safe, that is the basis for the possessor's liability. Prosser, Law of Torts (4th Ed.) 389, § 61. An occupier of land is ordinarily allowed a reasonable time to exercise care in inspecting and keeping the premises in a safe condition. Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 344, 226 S.E.2d 142, supra; accord Burger Barn v. Young, 131 Ga.App. 828(4), 207 S.E.2d 234; Alterman Foods v. Ligon, 246 Ga. 620, 622, 272 S.E.2d 327. However, an occupier is under no duty to continuously patrol the premises to discover defects. Alterman Foods v. Ligon, 246 Ga. 620, 622, 272 S.E.2d 327, supra.

The invitee also must exercise ordinary care for her safety and must by the same degree of care avoid the effect of the proprietor's negligence after it became apparent, or in the exercise of ordinary care should have learned of the defect. McGrew v. S.S. Kresge Co., 140 Ga.App. 149, 151, 230 S.E.2d 119. However, there is evidence in plaintiff's deposition that the first wrestling match had started when plaintiff started across the plastic strips and she admitted that she was not looking at the floor when she tripped. Looking continuously for defects, without interruption, is not required of an invitee. Sears, Roebuck & Co. v. Chandler, 152 Ga.App. 427(1), 263 S.E.2d 171. In addition, an invitee " 'is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when [her] attention has been ... diverted.' [Cit.] '[W]here a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction ... which will so divert the [invitee's] attention as to be the proximate cause of [her] injury, in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant.' " Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327, supra. For analyses of the "distraction" theory see: Redding v. Sinclair Refining Co., 105 Ga.App. 375, 378-379, 124 S.E.2d 688, and Stenhouse v. Winn-Dixie Stores, 147 Ga.App. 473, 249 S.E.2d 276.

In the instant case the defendant was the movant for summary judgment and introduced plaintiff's deposition and two affidavits which showed that the school's "agents and employees" placed the plastic covering on the gym floor, and that Georgia Championship Wrestling "did not know of a defective condition, if any, in the mat." This denial is only of actual knowledge of the condition. Liability of an occupier of premises can be based upon actual or constructive knowledge of a defect in the premises. Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 344, 226 S.E.2d 142, supra. The occupier was under a duty to inspect the premises to make sure they were safe. If they did inspect, why did they not discover the condition of the plastic strips partially taped together with masking tape? The evidence does not disclose when the wrestling ring and...