Chotas v. J. P. Allen & Co.

• Decision Date: 02 May 1966
• Docket Number: No. 2,No. 41881,41881,2
• Citation: 113 Ga.App. 731,149 S.E.2d 527
• Parties: Mary B. CHOTAS v. J. P. ALLEN & COMPANY
• Court: Georgia Court of Appeals

Page 527

149 S.E.2d 527

113 Ga.App. 731

Mary B. CHOTAS v. J. P. ALLEN & COMPANY.

No. 41881.

Court of Appeals of Georgia, Division No. 2.

May 2, 1966.

Rehearing Denied May 25, 1966.

Syllabus by the Court

'Where the owner or occupier of premises fails to exercise ordinary care in keeping reasonably safe such premises for the use of those who go upon them as invitees, and where such an invitee is injured by a patent defect in such premises of which the injured party has no actual knowledge, it can not be held as a matter of law that such injured party was lacking in ordinary care in failing to observe the defect in time to avoid the injury.' Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 624, 126 S.E. 388.

In this negligence action the trial court granted summary judgment for the defendant. The evidence showed that the plaintiff fell and was injured when, as she left the defendant's store, she caught the heel of her shoe in a split or tear in a perforated rubber mat covering the outside entrance to the store.

Pickett, Pickett, Akerman, Shipley & Norvell, Ray C. Norvell, Atlanta, for appellant.

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

HALL, Judge.

The plaintiff testified that she did not see the tear or split in the mat before she caught her heel in it because she 'wasn't looking down to see it.' And she answered in the affirmative counsel's questions on cross examination: 'Q. If you had been looking down you could have seen it, couldn't you? A. I imagine I could have, yes, sir. Q. It was light enough to see it, wasn't it? A. That's right. Q. You saw it afterwards without any difficulty? A. Yes, sir.' And she answered 'No' to further questions: 'Q. Mrs. Chotas, there was nothing to prevent you seeing this split in the rug had you been looking, was there? Q. No. And there was nothing distracting your view or distracting your attention at the time? Q. And you just simply didn't see it, is that correct? A. Well, I didn't pay attention to it. I mean I didn't look down to see it, no, sir. Q. But had you looked down you would have seen it, wouldn't you? A. I would think so, yes, sir.' The plaintiff also gave the following testimony: 'Q. Would you describe the position in which you were holding your head at the time you walked out of the store immediately prior to your fall? A. Well, I think I was holding my head up, straight up to be walking straight. Q. Would that be in the normal, customary position that you hold your head when you are walking? A. I would think so, yes, sir. * * * Q. Mrs. Chotas, were you looking straight ahead of you, not at the ground at the time? A. Yes sir. Q. At the time you fell? A. I was looking straight ahead, yes, sir.'

The defendant argues that this evidence shows that the plaintiff's injury was caused by her own negligence. The plaintiff did not say that she was not looking where she was going; she simply says that she was not looking down at the defect in the mat. Her testimony as a whole does not show as a matter of law that in the exercise of ordinary care in all the circumstances the plaintiff should have been looking down and should have seen and avoided the tear in the mat. The pleadings and evidence presented a jury question whether at the time the plaintiff caught her heel in the mat she should have been looking down at the defect. The same issue was presented and, upon this court's request for instruction, the Supreme Court answered and decided: 'Where the owner or occupier of premises fails to keep them in a reasonably safe condition for the use of those who go thereon by his invitation, is an invitee who is injured by a patent defect in such premises, of which she has no actual notice, to be held as a matter of law to be lacking in ordinary care in failing to observe the defect in time to avoid the injury? In other words, will the neglect of a person to observe a patent defect in the steps which she uses in entering a building at the invitation of the owner, of which defect she has no actual notice or knowledge, constitute such a lack of ordinary care as will as a matter of law debar her from recovering from the owner damages for an injury sustained by her by reason of such defect? * * * Failure to exercise ordinary care by a plaintiff before the negligence complained of was apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured. * * * 'The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces want of such prudence as the ordinarily careful person would use in a like situation.' We can not say under this standard and as a matter of law that the plaintiff was lacking in ordinary care in not inspecting these steps, and that she could have avoided the consequences of the defendant's alleged negligence when the same was unknown to her. It can not be held as a matter of law that the circumstances were such that an ordinarily prudent person would have reason to apprehend its existence.' Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 628, 126 S.E. 388, 390.

Looking continuously, without intermission for defects in a floor is not required in all circumstances. Lane Drug Stores v. Brooks, 70 Ga.App. 878, 881, 882, 884, 29 S.E.2d 716; cert. denied 70 Ga.App. 902; Rogers v. Sears Roebuck & Co., 45 Ga.App. 772, 166 S.E. 64; Bray v. Barrett, 84 Ga.App. 114, 65 S.E.2d 612; Rothberg v. Bradley, 85 Ga.App. 477, 482, 69 S.E.2d 293; accord Fuller v. Louis Steyerman & Sons, Inc., 46 Ga.App. 830, 836, 169 S.E. 508; Georgia Power Co. v. Sheats, 58 Ga.App. 730, 741, 199 S.E. 582; Sheraton Whitehall Corp. v. McConnell, 88 Ga.App. 725, 77 S.E.2d 752; Wicker v. Roberts, 91 Ga.App. 490, 86 S.E.2d 350; Goldsmith v. Hazelwood, 93 Ga.App. 466, 92 S.E.2d 48; cert. denied 93 Ga.App. 912. 'What is 'a reasonable lookout' depends on all the circumstances at the time and place.' Harris v. Cates, 105 Ga.App. 178, 183, 123 S.E.2d 703, 707, reversed on other grounds 217 Ga. 801, 125 S.E.2d 649.

It cannot be said as a matter of law that the plaintiff is barred from recovery because she could reasonably have apprehended and avoided the consequences of any negligence of the defendant, so that if the jury found both parties to be negligent the rule of comparative negligence applicable 'in other cases' under Code § 105-603 would govern. Ordinarily the facts upon which the plaintiff is barred from recovery-that he failed to avoid the consequences of the defendant's negligence which he...