Burger Barn, Inc. v. Young

• Court: Georgia Court of Appeals
• Writing for the Court: EVANS; PANNELL
• Citation: Burger Barn, Inc. v. Young, 207 S.E.2d 234, 131 Ga.App. 828 (Ga. App. 1974)
• Decision Date: 16 May 1974
• Docket Number: No. 3,No. 49195,49195,3
• Parties: BURGER BARN, INC. v. Isabell B. YOUNG

Page 234

207 S.E.2d 234

131 Ga.App. 828

BURGER BARN, INC. v. Isabell B. YOUNG.

No. 49195.

Court of Appeals of Georgia, Division No. 3.

May 16, 1974.

Hatcher, Stubbs, Land, Hollis & Rothschild, Gary L. Coulter, William B. Hardegree, Columbus, for appellant.

Hirsch, Beil & Partin, Jacob Beil, Columbus, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Mrs. Young filed suit for damages against Burger Barn in the Municipal Court of Columbus. She alleges she entered the establishment through the regular entrance, as was her custom. The doors to the entrance, after being opened, are operated by an automatic device which closes the doors. She glanced to her left and toward the serving area, as was her custom, to ascertain the menu for that day. Then, for the first time, she became aware of a trash container, about waist high, which had been removed from its regular place, and was left near the entrance and in the path of those entering, so as to impede her entrance to the restaurant. The automatic device was causing the entrance door to swiftly close on her right hand side, which necessitated her moving toward her left between the trash container and the door. The trash container was so near the door that it barely escaped being hit by the opening and closing of the door. The closing door caught plaintiff's right hand, and pushed it into the door frame, causing serious injury.

During the trial defendant twice moved for directed verdict, both of which motions were denied. The jury returned a verdict for plaintiff for $2,500. Defendant moved for judgment notwithstanding the verdict and for a new trial, both of which motions were overruled and denied. Defendant appeals. Held:

1. Where the owner or occupier of land by express or implied invitation, induces others to come upon his premises for any lawful purpose, and fails to exercise ordinary care to keep the premises or approaches safe, he is liable in damages to such person for injuries resulting therefrom. Code Ann. § 105-401.

2. A directed verdict is proper only when all of the evidence demands the verdict. Whitlock v. Michael, 208 Ga. 229, 65 S.E.2d 797.

3. Questions of negligence, contributory negligence, cause and proximate cause, and whose negligence or what negligence constitutes the proximate cause of the injury are solely for the jury, except in plain, palpable and indisputable cases. Long Construction Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726, and cits.; Malcolm v. Malcolm, 112 Ga.App. 151, 153, 144 S.E.2d 188; Boggs v. Griffeth Bros., 125 Ga.App. 304(2), 187 S.E.2d 915.

4. As to hazards, ordinarily the owner is allowed a reasonable time to exercise care in inspecting and keeping the premises in a safe condition; but where defendant or its agents are in the immediate vicinity or area of the dangerous condition as was set forth in plaintiff's testimony, and could easily have remedied it, no specific length of time will excuse the failure to exercise ordinary care after knowledge of the defect. Banks v. Colonial Stores, Inc., 117 Ga.App. 581, 584, 161 S.E.2d 366; Professional Bldg. v. Reagen, 129 Ga.App. 183, 184, 199 S.E.2d 266.

5. As to invitees on the premises of another, it is the duty of the owner to keep the premises, not in a reasonably safe condition, but in a safe condition. See Martin v. Henson, 95 Ga.App. 715, 99 S.E.2d 251.

6. The trash can was on the premises of the defendant, which premises were in his charge and under his control. In the absence of some evidence to suggest that a third person moved the trash container from its regular place to a position where it became a hazard to those entering the front door to the restaurant, it will be presumed that the owner or his employees moved the trash container to its hazardous position. In this situation, time for discovering the hazard and remedying same...