Clark v. Carla Gay Dress Co., Inc., 70988

• Decision Date: 06 January 1986
• Docket Number: No. 70988,70988
• Parties: CLARK v. CARLA GAY DRESS COMPANY, INC.
• Court: Georgia Court of Appeals

Page 468

342 S.E.2d 468

178 Ga.App. 157

CLARK v. CARLA GAY DRESS COMPANY, INC.

No. 70988.

Court of Appeals of Georgia.

Jan. 6, 1986.

Rehearing Denied March 4, 1986.

Certiorari Denied April 8, 1986.

Irwin M. Levine, Atlanta, for appellant.

Palmer H. Ansley, William R. Johnson, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Barbara Clark appeals the grant of directed verdict to defendant Carla Gay Dress Co. ("Carla Gay"). Clark, an employee at Carla Gay, sued the company for negligence after her estranged husband came onto the work premises and shot her in the head.

We construe the evidence most favorable to appellant Clark, as she was the respondent to the motion for directed verdict (Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga.App. 679, 305 S.E.2d 361), and find the evidence shows the following: Barbara Clark separated from her husband Willie in August, 1980. Around that time she told her supervisor Barbara Lancy that her work had slowed because of her domestic problems. She told Lancy that she had filed for divorce, that her husband beat her and would shoot up heroin, that he was a drug addict, and that she did not want to talk to him. (Lancy denied Barbara Clark had told her any of this.)

Spouses and children were allowed to visit briefly the employees at work, and Willie Clark had visited appellant in the dress factory on several occasions. On October 1, 1980, Willie Clark was to go to court because of an incident in which he had broken appellant's grandmother's door. He came to the Carla Gay factory just as appellant was to begin work and went to appellant's sewing machine table. He asked to make arrangements to see their baby. Appellant and her husband talked three or four minutes; it was a calm discussion. Willie Clark left and appellant continued to work at her machine. As he stood at the door or as he passed the supervisor Lancy, Willie Clark asked Lancy if he could speak to appellant. Lancy approached appellant's work table and asked her, "Do you want to see your husband? " Appellant told Lancy this was the day her husband was going to court and that she did not want to see him. Lancy went back to the door where Willie Clark stood and told him appellant would not see him, and asked him to leave. Lancy thought he would leave. Then Willie Clark asked Lancy if he could just talk to appellant one minute. During all these exchanges, Willie Clark was very nice and calm; he was not pushy and was not persistent or insistent. He was "perfectly peaceable," and that is why Lancy thought he would leave and did not see to it that he did leave. Lancy returned to appellant's work table and told her Willie Clark just wanted to see her for one minute. Appellant replied that she and Willie were getting a divorce and he was going to court that day; that he was trying to talk her out of getting the divorce, and she did not want to talk to him. (Appellant testified that this second request to speak to her husband was not made by Lancy but was made by a fellow employee named Minnie; however, Lancy's version, that she spoke to appellant both times, is more favorable to appellant's case.)

Appellant testified that she thought Lancy had taken care of the situation after she first told Lancy she did not want to speak to her husband. At the second request, appellant went to see her husband at the door; she did not tell anyone that she did not wish to speak to her husband and she did not say anything to anyone. She was afraid to ignore him for fear he might "start a scene," and she decided to approach him calmly. She and he spoke calmly for about seven minutes, and she told him she would arrange for him to see the baby. As she turned to walk away, he grabbed her wrist and pulled a gun out of his shirt and started shooting. Appellant had never known him to have a gun before and was surprised when she saw this gun. She ran into a nearby room but her husband forced his way into the room and got on appellant's back and shot her in the head. Held:

We have expounded the rule so often that apparently many defendants believe a plaintiff's equal knowledge will excuse any negligence under any circumstances. Both appellant and Carla Gay contend the equal knowledge rule is relevant to this case. Carla Gay argues that it cannot be liable for negligence in failing to remove Willie Clark from the premises because appellant had at least equal knowledge of his dangerous propensities. Appellant contends the equal knowledge rule, though relevant, does not apply because her second consultation with her husband was not "voluntary."

The equal knowledge rule is not determinative in this case. Carla Gay's potential liability is founded upon the foreseeability of the consequences that Willie Clark would commit bodily injury to his wife in these circumstances. The proprietor's liability is based on its failure to exercise ordinary care to keep the premises safe for its invitees (OCGA § 51-3-1); the same duty owed by a master to his servant is but a phase of this ancient codified law. Nashville, Chattanooga etc., R. v. Hilderbrand, 48 Ga.App. 140, 172 S.E. 87. See OCGA §§ 34-7-20, 34-7-23.

We have stated the rule many times with respect to defects, foreign substances on floors, and static dangerous conditions, that "[t]he basis of the proprietor's liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. [Cits.]" Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 573, 56 S.E.2d 828. See Hadaway v. Cooner Enterprises, 172 Ga.App. 113, 114, 321 S.E.2d 830.

In such cases, liability attaches when the perilous condition is not known to the invitee and is known to the proprietor, or is discoverable by the proprietor in the exercise of ordinary care to inspect and keep the premises safe. Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327. If the invitee is as aware of the danger as is the proprietor, but proceeds in spite of such knowledge, he assumes the risks and dangers incident to the known conditions (Telligman v. Monumental Properties, 161 Ga.App. 13, 14, 288 S.E.2d 846), and is therefore deemed guilty of a failure to exercise ordinary care for himself and cannot recover. OCGA § 51-11-7; Brownlow v. 6 Flags Over Ga., 172 Ga.App. 242, 243, 322 S.E.2d 548; Rogers v. Atlanta Enterprises, 89 Ga.App. 903, 906, 81 S.E.2d 721.

The superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant's negligence with the exercise of ordinary care. It is applicable in those cases where the proprietor allows a dangerous condition to exist, including cases where the alleged dangerous condition is one created by the activities of third persons, so long as the condition is one which the invitee can expect equally with the host, or come to know of, and therefore must anticipate the danger. In other words, the condition even if created by third parties must be such that the invitee can indeed have equal knowledge and either assumes the risk or can avoid the danger with ordinary care. See Ramsey v. Mercer, 142 Ga.App. 827, 237 S.E.2d 450 (18-year-old guest at party shot by another guest while both were playing with guns negligently left in house by owner); Jeffords v. Atlanta Presbytery, 140 Ga.App. 456, 231 S.E.2d 355 (swimmer poked in eye by swimmer during "rough" pool game); Lincoln v. Wilcox, 111 Ga.App. 365, 141 S.E.2d 765 (swimmer in pool hit in face by diver); Hunt v. Thomasville Baseball Co., supra (patron struck by baseball at baseball park). In all such cases, if there is proprietor's liability, it is based on his superior knowledge of the existence of a dangerous condition, for "if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. [Cits.]" Ramsey, supra, p. 829, 237 S.E.2d 450. If the proprietor did not know of the condition at all, he may be liable still for the negligent failure to exercise a duty to inspect the premises and keep them safe ( Alterman Foods, supra, pp. 622-623, 272 S.E.2d 327) if the plaintiff likewise was without knowledge and could not have avoided the danger with ordinary care.

The "equal knowledge rule" then is the practical application of a rule that a knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of defendant's negligence. OCGA § 51-11-7.

However, the plaintiff's equal knowledge will not always bar his recovery. Where the plaintiff admits he knew of the dangerous situation but was injured while using ordinary care to avoid it, he is not barred from recovery, for obviously the peril was one he could not with ordinary care escape. City of Silvertown v. Harcourt, 51 Ga.App. 160(3), 179 S.E. 772; see also Mann v. Central of Ga. R. Co., 43 Ga.App. 708, 713-714, 160 S.E. 131.

Likewise, an analysis of the parties' relative degrees of knowledge and the proprietor's corresponding duty to...