Butts v. Academy of Beauty, Inc.

• Decision Date: 12 February 1968
• Docket Number: 3,No. 43190,Nos. 1,2,43190,s. 1
• Citation: 117 Ga.App. 222,160 S.E.2d 222
• Parties: Mollie BUTTS v. ACADEMY OF BEAUTY, INC
• Court: Georgia Court of Appeals

Page 222

160 S.E.2d 222

117 Ga.App. 222

Mollie BUTTS v. ACADEMY OF BEAUTY, INC.

No. 43190.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 12, 1968.

Schwall & Heuett, Emory A. Schwall, Thomas C. Jones, Jr., Atlanta, for appellant.

Lokey & Bowden, Glenn Frick, Atlanta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. The fact that a defect or hazard is patent will not of itself necessarily bar a plaintiff invitee, injured as the result of falling in the defendant's establishment, From recovery. Lane Drug Stores, Inc. v. Brooks, 70 Ga.App. 878, 29 S.E.2d 716. This is particularly true where the plaintiff has no knowledge that the hazard exists, and is prevented from seeing it by some act of the defendant which distracts her attention. Mason v. Frankel, 49 Ga.App. 145, 174 S.E. 546; Glover v. City Council of Augusta, 83 Ga.App. 314, 63 S.E.2d 422; Miller v. Bart, 90 Ga.App. 755, 84 S.E.2d 127.

2. A combination of two or more circumstances, although no one may be sufficient of itself to constitute actionable negligence, may, if it results in harm to the plaintiff in its totality be sufficent to state a cause of action in tort. Pilgreen v. Hanson, 89 Ga.App. 703, 81 S.E.2d 18.

3. Every negligence case must be judged by its own facts. Where it is alleged that due to one or a combination of circumstances a hazard, although otherwise patent, was not seen or noticed by the plaintiff because its construction or maintenance created an optical illusion which made it appear that such hazard did not in fact exist, it is usually a jury question, unless this court can say as a matter of law that such combination of facts as alleged could not create the sensory impression alleged, whether the maintenance of the premises in the manner alleged constitutes negligence. Pilgreen v. Hanson, supra; Kitchens v. Davis, 96 Ga.App. 30, 99 S.E.2d 266; Spindel v. Gulf Oil Corp., 100 Ga.App. 323, 111 S.E.2d 160; Moore v. Sears, Roebuck & Co., 42 Ga.App. 658, 157 S.E. 106; Fuller v. Louis Steyerman & Sons, 46 Ga.App. 830, 169 S.E. 508; Smith v. Swann, 73 Ga.App. 144, 35 S.E.2d 787; DeLay v. Rich's Inc., 86 Ga.App. 30, 70 S.E.2d 546; Whitsett v. Hester-Bowman Enterprises, 94 Ga.App. 78, 93 S.E.2d 788; Starr v. Emory University, 93 Ga.App. 864, 93 S.E.2d 399.

4. The petition alleges that plaintiff entered the defendant's premises to have her hair shampooed and set; that after she had been waited on and was leaving the immediate area of treatment, the beauty operator called to her with a request for another appointment, and as she turned her head toward the speaker she fell from the upper level to the lower level, which was approximately a six inch drop. She did not know there was a difference in floor levels, and in walking toward the step or drop she did not notice it because the floor was laid out in a diagonal pattern of black with white squares which, under the brilliant illumination used, gave the appearance of continuity of floor with the floor pattern so that there was nothing to warn her of a change in level. Under the principles of law above set forth, these allegations are sufficient to withstand general demurrer.

5. As to the demurrer seeking to strike an amendment filed after a general demurrer had been sustained with leave to amend, on the ground that the amendment was merely an elaboration of facts originally averred and added no matter of material substance, 'We do not agree with such cases as Glover v. Savannah F. & W. Ry. Co., 107 Ga. 34, 32 S.E. 876; Hamer v. White, 110 Ga. 300, 34 S.E. 1001; Speer v. Alexander, 149 Ga. 765, 102 S.E. 150; and Lavenden v. Haseman, 157 Ga. 275, 121 S.E. 646, and similar cases holding that, by electing to amend, the petitioner has conceded that his original petition was defective and is thereafter estopped to say an amendment was not necessary. If he amends, no law of the case is established that his original petition was defective unless he fails he fails to amend and appeal promptly as in Northside Manor v. Vann, 219 Ga. 298, 133 S.E.2d 32.' Peacock Construction Co. v. Chambers, 223 Ga. 515, 517, 156 S.E.2d 348, 351.

The trial court erred in sustaining the general demurrers.

Judgment reversed.

FELTON, C.J., and HALL, PANNELL, and WHITMAN, JJ., concur.

BELL, and JORDAN, P.J., and EBERHARDT and J. KELLEY QUILLIAN, JJ., dissent.

JORDAN, Presiding Judge (dissenting).

This is another in a line of slip or fall down cases in which courts have encountered difficulty in determining when a petition sets forth a cause of action. While the principles governing the duties of the parties in such cases and the rules of construction of petitions on general demurrer are well established, the problem arises in the application of such principles to a given factual situation, for as stated in the majority opinion, every negligence case must be judged by its own facts. Unfortunately very few, if any, such cases reaching the appellate courts are on 'all fours' factually.

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