Boatright v. Rich's, Inc.

• Decision Date: 05 February 1970
• Docket Number: No. 3,No. 44955,44955,3
• Parties: Elsie B. BOATRIGHT v. RICH'S, INC
• Court: Georgia Court of Appeals

Page 232

173 S.E.2d 232

121 Ga.App. 121

Elsie B. BOATRIGHT v. RICH'S, INC.

No. 44955.

Court of Appeals of Georgia, Division No. 3.

Feb. 5, 1970.

Lynwood A. Moddox, Daniel C. B. Levy, Atlanta, for appellant.

Bryan, Carter, Ansley & Smith, Henry M. Quillian, Jr., Atlanta, for appellee. Syllabus Opinion by the Court

EVANS, Judge.

This is what is commonly known as a 'slip and fall' case in which the appellant slipped and fell in a restaurant while walking toward the cashier preparatory to leaving the establishment in which she was an invitee. Her testimony shows that she was 'looking toward the cashier,' as she walked on a plastic mat, 'but * * * didn't look down' and that 'something caused me to fall' because 'something was spilled on the floor.' Another witness testified plaintiff slipped and fell on foodstuff believed to be jello, and there was evidence that employees of the defendant walked continuously over the area to and from the kitchen. The jury returned a verdict for the defendant, and the appeal is from the judgment based thereon with error enumerated on certain charges involving contributory and comparative negligence, requests to charge, and on the judgment. Held:

1. After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict. Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146; Southern R. Co. v. Brock, 132 Ga. 858, 862, 64 S.E. 1083; Stapleton v. Amerson, 96 Ga.App. 471(5), 100 S.E.2d 628; Young Men's Christian Assn. v. Bailey, 112 Ga.App. 684, 690-691, 146 S.E.2d 324.

2. Questions as to negligence, including contributory and comparative negligence, as to what and whose negligence was the proximate or contributing proximate cause of an injury, are all questions for jury determination, if there by any evidence to support them, in which instance the court would be authorized to charge thereon. See Eddleman v. Askew, 50 Ga.App. 540, 179 S.E. 247; Stapleton v. Amerson, 96 Ga.App. 471(5-b), 100 S.E.2d 628, supra.

3. Before an owner can be held liable for the slippery condition of the floor, produced by the presence of a foreign substance, proof must be shown that he was aware of the substance or would have known of its presence had he exercised reasonable care. Conaway v. McCrory Stores Corp., 82 Ga.App. 97, 101, 60 S.E.2d 631.

4. From the evidence submitted, the plaintiff was as well apprised of the condition of the walking area in the restaurant where she slipped as the defendant, and should be held to as high a degree of care for her own safety as the defendant. Hill v. Davison-Paxon Co., 80 Ga.App. 840, 57 S.E.2d 680; Conaway v. McCrory Stores Corp., 82 Ga.App. 97, 102, 60 S.E.2d 631, supra. Accordingly, the evidence as to the cause of the plaintiff's fall, in which she was walking toward the cash register, 'didn't look down,' and slipped on what was believed to be jello spilled on a plastic runner on which she was walking, authorized a charge that 'the plaintiff cannot recover unless the defendant's negligence exceeds that of the plaintiff.'

5. When there are no conditions making the premises unusually dangerous, the law does not require a proprietor to patrol the floor constantly. Angel v. Varsity, Inc., 113 Ga.App. 507, 508, 148 S.E.2d 451; Stanton v. Grubb, 114 Ga.App. 350, 151 S.E.2d 237; Colonial Stores, Inc. v. Turner, 117 Ga.App. 331, 334, 160 S.E.2d 672. Whether or not the defendant is liable for injuries to a business invitee because of the defendant's constructive knowledge of a dangerous...