Eckerd-Walton, Inc. v. Adams

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; EBERHARDT, P.J., and CLARK
• Citation: Eckerd-Walton, Inc. v. Adams, 126 Ga.App. 210, 190 S.E.2d 490 (Ga. App. 1972)
• Decision Date: 19 April 1972
• Docket Number: No. 3,ECKERD-WALTO,INC,Nos. 47061,47062,s. 47061,3
• Parties: v. Estelle ADAMS et al. Marjorie B. McCONNELL v. Estelle ADAMS et al

Page 490

190 S.E.2d 490

126 Ga.App. 210

ECKERD-WALTON, INC. v. Estelle ADAMS et al.

Marjorie B. McCONNELL v. Estelle ADAMS et al.

Nos. 47061, 47062.

Court of Appeals of Georgia, Division No. 3.

April 19, 1972.

Rehearing Denied May 4, 1972.

Syllabus by the Court

1. The motion to dismiss the complaint was properly denied.

2. The exercise of ordinary care to keep the premises safe for invitees includes a duty to anticipate the negligence of others which is usual or likely to happen, but not acts of negligence which are remote and unlikely to occur. The proprietor drug company was not guilty of negligence in failing to anticipate that a motorist would negligently drive a vehicle through the store front upon customers sitting at a counter some six feet within, under the circumstances of this case.

3. Negligence may be established by circumstantial evidence. The verdict against the defendant motorist whose automobile jumped a curb and foundation wall and crashed through a plate glass window into the store front was amply supported by the evidence.

4. The verdict against joint defendants having been set aside as to one of them, for reasons set forth in the opinion, a new trial is granted to the co-defendant McConnell. Smith v. Nelson, 123 Ga.App. 712(5), 182 S.E.2d 332.

Estelle Adams was sitting on a counter stool with her back to the plate glass window front of Eckerd Drug Store when an automobile driven by Marjorie McConnell crashed through the building and pinned her against the counter. She brought a personal injury action against the drug store and the driver and on the trial of the case recovered a jury verdict from which each defendant separately appeals.

Fulcher, Hagler, Harper & Reed, William C. Reed, Augusta, for Eckerd-Walton.

Congdon & Williams, W. Barry Williams, Burnside, Dye & miller, A. Rowland Dye, Augusta, for McConnell.

Nicholson & Fleming, Bobby G. Beazley, John Fleming, Augusta, for appellees.

DEEN, Judge.

1. The petition stated the plaintiff's claim against Eckerd's in general terms, with 21 allegations of negligence relating to faulty construction, maintenance, failure to warn, etc. We cannot say that 'the complaint disclose(s) with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support,' which is the yardstick for dismissal stated in Harper v. DeFreitas, 117 Ga.App. 236(1), 160 S.E.2d 260; Columbus Bank & Trust Co. v. Dempsey, 120 Ga.App. 5, 169 S.E.2d 349 and other cases. The motion made by Eckerd's for dismissal as to it because of failure to state a claim was properly denied.

2. On the trial of the case the following appears without contradiction: Eckerd's is the corner building of a series of one story party-wall stores in a shopping center, entry to which is at right angles to a city street. There is diagonal parking in front of the buildings with sufficient room to drive comfortably for entry and exit between the row of parked cars and the sidewalk paralleling the street. Spaces are marked for parked cars immediately adjacent to an approximately four to five and a half inch curb separated from the buildings by a sidewalk six feet in width. The store front is composed of a 7 3/4 inch brick wall foundation above which is a large area of plate glass. Inside the building and some six feet back from this wall are the stools and counter for customer service. The defendant McConnell crashed through the store front and pinned the plaintiff against the counter, which meant that she had to turn right from the street into the entrance area, turn left paralleling the row of buildings, turn right in front of Eckerd's, cross over the approximately 5-inch curb, over six feet of sidewalk, over the almost 8-inch brick wall and through the plate glass window. When the car came to a stop it was 'perched' on the wall with the front wheels on the inside and the rear wheels on the outside, the brick foundation itself remaining substantially intact.

We have carefully examined the many grounds of negligence urged and find none of them sustained by the evidence. Allegations that the co-defendant driver was misled and deceived as to the proximity of the store front to the parking area are not borne out by the facts, or that the merchant failed to exercise proper control over cars entering the area. The main thrust of the argument is that the defendant should have anticipated that some negligent motorist would attempt to drive through his store and should either not have placed the counter stools in that area, or in some other way should have heightened the foundation wall or erected a barricade so as to make this type of negligence physically impossible. This case is stronger on its facts than Feldman v. Whipkey's Drug Shop, 121 Ga.App. 580, 174 S.E.2d 474 where on detailed allegations of the complaint a motion to dismiss was sustained in favor of the defendant proprietor. There the plaintiff...