Boggs v. Griffeth Bros. Tire Co., 46696

• Decision Date: 05 January 1972
• Docket Number: No. 2,No. 46696,46696,2
• Parties: Harold BOGGS v. GRIFFETH BROTHERS TIRE COMPANY
• Court: Georgia Court of Appeals

Page 915

187 S.E.2d 915

125 Ga.App. 304

Harold BOGGS v. GRIFFETH BROTHERS TIRE COMPANY.

No. 46696.

Court of Appeals of Georgia, Division No. 2.

Jan. 5, 1972.

Rehearing Denied Jan. 19, 1972.

William O. Carter, Hartwell, for appellant.

Erwin, Epting, Gibson & Chilivis, Nickolas P. Chilivis, Athens, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

This is a 'slip and fall' personal injury case. Harold Boggs sued Griffeth Bros. Tire Co., alleging that defendant was engaged in the tire and automobile repair business; that Boggs was an invitee on the premises to have his automobile repaired and while there he fell and sustained injury and loss due to defendant's failure to exercise ordinary care in keeping the premises and approaches safe. The complaint is based on the contention that defendant's office area is lower than the yard area, and in opening the door to enter defendant's office area, plaintiff was caused to fall by reason of a step-down; and that defendant was negligent as follows: (a) in failing to warn him of such step-down; (b) in failing to post a warning sign on the door opening to the stairs; (c) in failing to maintain a handrail; (d) in maintaining an unsafe condition; (e) in failing to keep the door locked; (f) in having an unsafe entrance; (g) in failing to anticipate that plaintiff would be injured; and (h) in failing to anticipate that a person would not readily discern the step-down.

Defendant denied the material allegations of the complaint; the case proceeded to trial, and at the close of the evidence defendant moved for directed verdict in its favor. The court directed a verdict in favor of defendant, stating that he felt the question of whether plaintiff was guilty of any contributory negligence was a jury issue, but that the court also felt that it must direct a verdict for the reason 'that there has been no showing of any negligence in the maintenance or the construction of the property in question by the defendants.' The court also stated that he did not feel the evidence showed any defect in the condition of the premises which would be sufficient to make defendant liable to plaintiff for whatever injuries plaintiff sustained.

The appeal is from the final judgment with errors enumerated as to (1) sustaining the motion for directed verdict; in directing the jury to return a verdict in favor of defendant and in entering judgment upon said erroneously directed verdict thereafter; (2) in sustaining defendant's objection to the certified copy of the hospital records pertaining to the plaintiff and in refusing to admit them in evidence as exhibits; and (3) in overruling plaintiff's objections to the examination of the plaintiff as a witness regarding the entrances at locations other than the one where plaintiff fell, there being no showing of substantial similarity existing between each of the entrances inquired about and the entrance to defendant's premises where plaintiff fell. Held:

1. Where a motion for directed verdict is made, the evidence must be construed with all reasonable deductions and inferences most favorably toward the party opposing the motion. Royal Blue Transportation Company v. First & Merchants Nat. Bank, 44 Ga.App. 754(1), 162 S.E. 879; Jones v. Mayor, etc. of Athens, 105 Ga.App. 86(1), 123 S.E.2d 420.

2. One of the best established rules in Georgia is that negligence is a question for the jury including lack of negligence, diligence, lack of diligence, extraordinary diligence and slight care. Cobb v. Coleman, 94 Ga.App. 86, 90, 93 S.E.2d 801; Martin v. Henson, 95 Ga.App. 715, 738, 99 S.E.2d 251.

3. When a condition of the premises is alleged to be defective, and the condition is one of such character that reasonable and prudent men may reasonably differ as to whether a mishap could or should have been reasonably anticipated from its existence, the case is generally one for jury determination. McCrory Stores Corp. v Ahern, 65 Ga.App. 334, 337, 15 S.E.2d 797; Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84.

4. Questions as to negligence and contributory negligence are, except in plain and indisputable cases, for jury determination. Shattles v. Blanchard, 87 Ga.App. 15(2), 73 S.E.2d 112.

5. The defendant cites cases holding there is no liability for negligence of one who maintains a floor at lower level than the sidewalk or other adjoining floors. But the case sub judice is readily distinguishable from each of those authorities. Here, there was not only a floor lower than sidewalk level, but there were two step-downs, each being approximately six inches, making a total of twelve inches difference. There were no warning signs. There were certain papers (decals) plastered on the glass door of entry in such position and at such height that they very well could have interfered with the vision of one opening the door, so as to limit his view inside the room and thus 'to have thrown him off guard.' According to photographs in the transcript, the door, as it faced outward, was of a very light color, whereas the floors inside the room and the two step-downs were of quite dark, almost black, appearance, so as to blend into each other. It has been held many times that the mere maintenance of lower floor levels is not, in and of itself, sufficient to afford a cause of action for negligence. In the case of Mitchell Motors, Inc. v. Tatum, 120 Ga.App. 689, 172 S.E.2d 187 it was held: The mere fact that there is a slight difference between the floor levels in different parts of a business building to which the public are invited to enter does not in itself constitute negligence. . . . Such a variation of level in buildings, amounting to only a few inches (4 to 6 as shown in adjudicated cases), constitutes a common method of construction, and does not of itself render it defective or negligent.' (Emphasis supplied). The above language is taken from Judge Jenkins' dissenting opinion in Wardlaw v. Executive Committee, 47 Ga.App. 595 and 596, 170 S.E. 830. But at page 597, 170 S.E. at page 832 Judge Jenkins adds other elements which might be accounted negligence in connection with variance in floor levels, to wit: improper lighting, whereby the step-down is not plainly visible, or anything that occurs to throw plaintiff off guard 'or . . . other facts . . . which would render the defendant liable.'

In the Mitchell case, supra, the plaintiff had just stepped up on a platform at the cashier's office, and was injured when she stepped off. Photographs showed the curb (elevation) was painted a reddish orange color, different and contrasting with the color of the floor and platform; there was no suggestion that the room was not well lighted. Of course, there was no liability in this case.

In Herschel McDaniel Funeral Home v. Hines, 124 Ga.App. 47, 183 S.E.2d 7, there was a difference in floor levels, but the room was well lighted; there were no shadows to keep plaintiff from seeing the floor; there was nothing to interfere with her vision; she never looked down; if she had looked, she could have seen the difference in floor levels; she simply stepped backward from a raised altar and was walking backwards when she fell. Of course, there was no liability there.

In Goodwin v. Mullins, 122 Ga.App. 84, 176 S.E.2d 551 the plaintiff was a social invitee, or mere licensee, in the home of relatives, and mistakenly opened a door she thought led to the bathroom. She fell down a flight of steps. But as to such social invitee, the only duty owed to her was that the premises be maintained so as not to contain pitfalls, man-traps or things of that character. See Flynn v. Inman, 49 Ga.App. 186, 174 S.E. 551. No liability was shown in this case, but had she been there for the mutual benefit of defendant and herself, then the duty would have been owed of keeping the premises 'not reasonably safe, but safe.' Martin v. Henson, 95 Ga.App....