Elebash v. Whitley

• Decision Date: 16 September 1966
• Docket Number: No. 2,No. 42143,42143,2
• Parties: Peter ELEBASH v. Harold S. WHITLEY
• Court: Georgia Court of Appeals

Page 196

151 S.E.2d 196

114 Ga.App. 294

Peter ELEBASH v. Harold S. WHITLEY.

No. 42143.

Court of Appeals of Georgia, Division No. 2.

Sept. 16, 1966.

Kelly, Champion & Henson, John W. Denney, Columbus, for appellant.

Roberts & Thornton, Jack M Thornton, Columbus, for appellee.

Syllabus Opinion by the Court

HALL, Judge.

The defendant in this negligence action appeals from a judgment overruling his general demurrers to the petition, which alleged the following facts: The plaintiff was an invitee in the defendant's bowling alley. Unknown to the plaintiff, a cola liquid had been spilled on the mat at the vending machines and allowed to remain there by the defendant. The substance was not perceptible to the plaintiff except by very close inspection, due to the lighting and shadows and the fact that the coloring of the liquid blended with that of the mat. The liquid was spilled more than four hours before the plaintiff fell and for that four-hour period the defendant had an employee working in the area where it was spilled, who passed the area several times and in the exercise of his ordinary duties should have known that the liquid was spilled and would have known that it had been spilled if he had carried out his ordinary duties of making the premises safe. The plaintiff stepped in the liquid while at the vending machine. When the plaintiff returned to bowl, his left foot stuck due to the substance collected on his shoe and he fell and was injured and damaged. The plaintiff's fall and injuries were caused by the defendant's negligence in allowing the spilled liquid to remain on the floor for an unreasonable period of time, in failing to light the vending machine area sufficiently, in failing to warn the plaintiff of danger, and in other particulars.

1. A business proprietor has a duty to keep his premises to which he invites the public safe from defects which by ordinary care he could have discovered and which by reasonable foresight he should have known would be dangerous. Lam Amusement Co. v. Waddell, 105 Ga.App. 1, 3, 123 S.E.2d 310; accord Hillinghorst v. Heart of Atlanta Motel, Inc., 104 Ga.App. 731, 735, 122 S.E.2d 751. 'The basis of the proprietor's liability is his superior knowledge, or his superior opportunity to discover a dangerous condition, as compared with the opportunity of his invitee.' Belk-Gallant Co. of LaGrange v. Cordell, 107 Ga.App. 785, 788, 131 S.E.2d 575; S. H. Kress & Co. v. Flanigan, 103 Ga.App. 301, 302, 119 S.E.2d 32; American Law Institute, Restatement of the Law of Torts, 938, § 343. The proprietor is required to know the character of his premises. Lam Amusement Co. v. Waddell, supra; Hillinghorst v. Heart of Atlanta Motel, Inc., supra, 104 Ga.App. 734, 122 S.E.2d 751; Peaster v. Williams Sikes Post, 113 Ga.App. 211, 212, 147 S.E.2d 686. And one of the conditions that can make a defect created by others foreseeably dangerous is that the character of the premises or surroundings will cause the defect to be concealed or not observable to invitees as they use the premises in the normal manner. Belk-Gallant Co. of LaGrange v. Cordell, supra; J. C. Penney Co. v. Berry, 111 Ga.App. 663, 664, 143 S.E.2d 28; Sharpton v. Great Atlantic & Pacific Tea Co., 112 Ga.App. 283, 145 S.E.2d 101; Scoggins v. Campbellton Plaza Corp., 114 Ga.App. 23, 150 S.E.2d 179. This is true even though the fact alone that a defect is concealed or that it caused injury does not necessarily show that it was to the proprietor foreseeably dangerous. See Misenhamer v. Pharr, 99 Ga.App. 163, 168, 107 S.E.2d 875.

2. The question specifically presented by this appeal is whether reasonable minds could disagree on the issue that the proprietor of the bowling alley in the exercise of ordinary care should have foreseen that someone on the premises might spill a substance on the mat at the vending machines that would create a hazard, and accordingly should have inspected this area as often as every four hours to discover and remove the substance if it created a risk to invitees. From the allegations of this petition we cannot decide as a matter of law that the defendant proprietor should not have foreseen that a condition such as that alleged would occur on his business premises. Belk-Gallant Co. of LaGrange v. Cordell, supra; S. H. Kress & Co. v. Flanigan, supra: Lamb v. Redemptorist Fathers of Ga., 111 Ga.App. 491, 142 S.E.2d 278; J. C. Penney Co. v. Berry, supra; Sharpton v. Great Atlantic & Pacific Tea Co., supra; Scoggins v. Campbellton Plaza Corp., supra. But the petition contains no allegation that the condition was dangerous or that the...