Church's Fried Chicken, Inc. v. Lewis

• Decision Date: 05 June 1979
• Docket Number: No. 57513,57513
• Citation: 256 S.E.2d 916,150 Ga.App. 154
• Parties: CHURCH'S FRIED CHICKEN, INC. v. LEWIS.
• Court: Georgia Court of Appeals

Page 916

256 S.E.2d 916

150 Ga.App. 154

CHURCH'S FRIED CHICKEN, INC. v. LEWIS.

No. 57513.

Court of Appeals of Georgia.

Argued April 4, 1979.

Decided May 3, 1979.

Rehearing Denied June 5, 1979.

Fulcher, Hagler, Harper & Reed, Gould B. Hagler, Augusta, for appellant.

Brown & Paschall, Carl C. Brown, Jr., Augusta, for appellee.

QUILLIAN, Presiding Judge.

This is an appeal by the defendant, Church's Fried Chicken, Inc. (Church's), from an adverse jury verdict. Sammie T. Lewis, plaintiff, brought this action against Church's alleging that he entered Church's at approximately 1:30 a. m. on the morning of February 6, 1977 to make a purchase. There was a long line and he and his girlfriend were on the end. They were asked several times by a waitress to go outside to the ordering window where they would be served. They declined at first because "it was cold outside," but when the waitress persisted they went to the outside ordering window which was on the frontside of Church's. They were standing on a concrete area 66 inches in depth from the adjacent parking area, and it was raised 4 inches in height above the asphalt parking area. As they were waiting for delivery of their order, a car started its engine and suddenly "zoomed and lurched forward" into them. It pinned the plaintiff to the wall of Church's breaking both of his legs and "knocked in" the front of the building.

Plaintiff alleged that defendant failed to exercise ordinary care in keeping its premises and approaches safe for its customers and in failing to provide a buffer zone between the parked cars and customers waiting to be served at the outside serving window. There was no "stop block" for automobiles before they encountered the curb. The defendant appeals from the jury verdict for the plaintiff. Held :

1. Defendant has combined his first and second enumerations of error alleging the trial court erred in overruling his motion for judgment notwithstanding verdict and motion for a new trial. We also will treat both issues in this Division. The principal issues were (1) whether Church's was negligent, and (2) if negligent, was such negligence "a" proximate cause of the incident.

Church's had installed 6 inch high "precast concrete" "stop blocks" on the side of their restaurant but did not install stop blocks on the front side of the restaurant where patrons were required to stand when using the outside ordering window. The plaintiff had been directed to use the outside ordering window by an employee of the defendant. Mr. Kelly, an architect, engineer, and builder, testified that there was a standard "for curbing along walkways in front of buildings where cars park . . . the standard is not less than six inches in height . . . ." The curbing height here was 4 inches. He was not aware of any standard requiring use of "stop blocks" in such a situation, but as "a professional designer and architect" he "would recommend stops to prevent cars from running into the building or hurting people."

( A) "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Code Ann. § 105-401 (Code § 105-401). The proprietor is bound to use reasonable care to protect invitees from injury "not only from defects in the premises but also from other dangers arising from the use of the premises by himself or his licensees." Johnson v. John Deere Plow Co., 214 Ga. 645, 648, 106 S.E.2d 901, 903. He is not an insurer of the safety of persons thereon against all acts of co-invitees and when he has used ordinary care to keep the premises safe he is not guilty of negligence. Watson v. McCrory Stores, Inc., 97 Ga.App. 516, 519, 103 S.E.2d 648.

"The exercise of ordinary care to keep the premises safe for invitees includes a duty to anticipate the negligence of others which is usual and likely to happen, but not acts of negligence which are remote and unlikely to occur." Eckerd-Walton, Inc. v. Adams, 126 Ga.App. 210(2), 190 S.E.2d 490. "The general rule in such cases is not whether injuries result or the consequences were possible, but whether they were probable, that is, likely to occur according to the usual experience of persons." Feldman v. Whipkey's Drug Shop, 121 Ga.App. 580(4), 174 S.E.2d 474.

"In determining the question of whether a business proprietor exercised ordinary care to protect a business invitee from dangerous conduct of others on the premises, the standard is whether a reasonably prudent person at the time and in the circumstances would have foreseen danger and what he reasonably would have done to prevent injury; negligence is defective foresight judged by this standard rather than by hindsight of what actually happened and the effectiveness of the action taken (to prevent the incident)." Shockley v. Zayre of Atlanta, 118 Ga.App. 672, 165 S.E.2d 179.

In Chatmon v. Church's Fried Chicken, 133 Ga.App. 326, 327, 211 S.E.2d 2, the plaintiff was injured by an automobile which jumped the curb and struck him while he was waiting at an outside ordering window. The concrete waiting area was "3 to 4 inches" in height above the parking area and there were no "guard stops." We held that a 3 inch curb "is undoubtedly less than half as safe from the danger of overshooting as a six inch curb," and where such alleged defects are of a character that the minds of reasonable men might differ as to whether the injury should have been anticipated and protection barriers installed, was a question for the jury.

In Munford, Inc. v. Grier, 136 Ga.App. 537, 221 S.E.2d 700, the plaintiff was struck by an automobile which jumped the curb from the parking area and crushed him against the building. The sidewalk area in front of the store was 8 feet in depth and the concrete area was raised six and one-half inches above the parking area. There were no "car stops." We held the court did not err in denying a motion for summary judgment as the issue was for the jury.

" ' "It is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one's protection ordinarily are to be decided by a jury, and a court should not decide them . . . except in plain and indisputable cases. " (Cits.)' " James v. Sears, Roebuck & Co., 140 Ga.App. 859, 232 S.E.2d 274; Johnson v. John Deere Plow Co., 214 Ga. 645, 648, 106 S.E.2d 901, supra.

Under Chatmon and Munford, supra, we find that the issues of negligence in the instant case, i. e. whether the defendant reasonably should have anticipated the event which occurred, and taken reasonable steps to prevent its occurrence was not "plain and indisputable" and should have been submitted to the jury.

( B) With reference to the issue of proximate cause, there can be no recovery by a plaintiff for the negligence of a defendant "which was not the proximate cause of the injury. If the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof." Whitaker v. Jones, etc., Co., 69 Ga.App. 711(1), 26 S.E.2d 545; see also Code Ann. §§ 105-2008, 105-2009 (Code §§ 105-2008, 105-2009). There may be more than one proximate cause of an injury. Atlanta Gas Light Co. v. Mills, 78 Ga.App. 690, 695, 51 S.E.2d 705. The mere fact that plaintiff's injuries would not have been sustained had only the defendant's act of negligence occurred will not of itself operate to constitute another's act of negligence as the sole proximate cause. Id.; Central Truckaway System v. Harrigan, 79 Ga.App. 117(3), 53 S.E.2d 186; Stern v. Wyatt, 140 Ga.App. 704, 705, 231 S.E.2d 519. If the negligence of two persons combine to produce the injury complained of, either may be sued for the entire amount of damages to the plaintiff and there is no accounting of comparative negligence between the two negligent parties causing the injury and either of them can be held for the entire damage even though one was more negligent than the other. Fields v. Jackson, 102 Ga.App. 117, 131(7), 115 S.E.2d 877.

To relieve the defendant from liability where both the defendant and a third party were negligent, it must appear that the negligence of the third party intervened and superseded the defendant's negligence. Perry v. Lyons, 124 Ga.App. 211, 215-217, 183 S.E.2d 467; Restatement of the Law 2d, Torts 2d 465, § 440.

While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.' " Blakely v. Johnson, 220 Ga. 572, 574, 140 S.E.2d 857, 859. Thus, in the instant case, even if the defendant was negligent in placing the ordering window on the front of the restaurant, only 66 inches away from the parking area, and had only a 4 inch high concrete curb where the standard was 6 inches, and placed stop-blocks on the side of the building apparently to protect the building, but failed to place stop-blocks in the front of the restaurant where they directed patrons to place orders, there could be no recovery by plaintiff if the intervening act of negligence of the driver of the automobile was a superseding and proximate cause of the injury to the plaintiff Unless the negligence of the driver "could reasonably have been anticipated, apprehended, or foreseen" by the restaurant....