Foster v. Kenimer
| Decision Date | 05 July 1983 |
| Docket Number | Nos. 65668,65669,s. 65668 |
| Citation | 167 Ga.App. 567,307 S.E.2d 30 |
| Court | Georgia Court of Appeals |
| Parties | FOSTER v. KENIMER et al. COFER et al. v. KENIMER et al. |
Charles A. Gower, Stephen G. Gunby, Columbus, for appellant (no. 65668).
Allen C. Levi, Jerry A. Buchanan, Miller P. Robinson, Columbus, for appellees (no. 65668).
Jerry A. Buchanan, Columbus, for appellants (no. 65669).
Charles A. Gower, Stephen G. Gunby, Allen C. Levi, Miller P. Robinson, Columbus, for appellees (no. 65669).
This is a slip and fall case. Plaintiff Foster's amended or recast complaint names as defendants, Ruth M. Kenimer, d/b/a Star Cleaners, the lessee of the premises engaged in a dry cleaning and laundry business, and defendants Cofer and Beauchamp, the owners of the premises in question, as joint tortfeasors.
Plaintiff's complaint alleges that she was on the premises as an invitee (a customer of the business operated there) and that when leaving she slipped as she walked down the steps at the entrance to the premises. Plaintiff alleged that the steps were painted with a slick and smooth type of paint, which when covered with water, as they were on the date in question due to rain, became slippery and hazardous. The steps were alleged to have been painted with the slick and smooth type paint by or at the direction of defendants Cofer and Beauchamp. Defendant Kenimer is alleged to have allowed the condition to exist at the only entrance to her cleaners without providing for the safety of those who used the steps.
Defendants Cofer and Beauchamp filed their cross-claim against defendant Kenimer alleging that, by virtue of provisions of the lease agreement as to the premises, defendant Kenimer accepted the premises in "as is" condition, agreed to take responsibility for maintenance and repairs, and to indemnify and save harmless defendants Cofer and Beauchamp against all claims for damages arising from use or occupancy of the premises. Defendants Cofer and Beauchamp sought by their cross-claim to recover from defendant Kenimer any judgment rendered against them in favor of plaintiff and attorney fees for the defense of plaintiff's action.
Defendants Cofer and Beauchamp moved for summary judgment on their cross-claim against defendant Kenimer. This motion for summary judgment was denied.
All three defendants moved for summary judgment against plaintiff. Their respective motions for summary judgment were granted.
Plaintiff appeals from the grant of summary judgment in favor of defendants. Defendants Cofer and Beauchamp appeal from the denial of their motion for summary judgment against defendant Kenimer as to their cross-claim. Held:
1. Plaintiff's allegations, as to the characteristics of the paint and as to the fault of defendants in regard to application of the paint in question or in allowing the condition of the steps so painted to continue to exist, are not pierced. Pleadings which have not been pierced create issues for jury resolution. Guthrie v. Monumental Properties, 141 Ga.App. 21, 22(2), 232 S.E.2d 369; Cowart v. Five Star Mobile Homes, 161 Ga.App. 278, 280, 291 S.E.2d 13.
The record discloses that the plaintiff was aware of the weather conditions which resulted in water being present on the stairs. Plaintiff states in her affidavit that as she started to leave the premises she noticed that there was water on the steps. However, plaintiff's affidavit states that it was not until after her fall that she examined the steps and noticed that they were concrete painted with a smooth and slick enamel type paint.
Plaintiff's complaint clearly avers that the hazard which caused her fall was created by the combination of (1) water on the steps (a foreign substance) and (2) the smooth and slick paint on the steps (a defect). Plaintiff's acknowledged notice of the water cannot reasonably be viewed as notice of the second component of the alleged hazard, the smooth and slick paint on the steps.
Issues of material fact appear to exist as to each of the two elements set forth in Moss v. Atlanta Housing Auth., 160 Ga.App. 555, 287 S.E.2d 619, which must be proven in order for plaintiff to recover ((1) fault on the part of defendants, and (2) ignorance of the danger on the part of the invitee). Therefore, the trial court erred in granting summary judgment in favor of defendants and against plaintiff. Accord Pippins v. Breman, 152 Ga.App. 226, 262 S.E.2d 477 (a defect case). We find nothing in Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 138 S.E.2d 77, to the contrary as there is no evidence that the paint in question in the case sub judice is a material commonly accepted in the building industry as a floor covering.
2. Defendants Cofer and Beauchamp acknowledge the proposition that "[g]enerally an indemnity agreement will not be sustained against the indemnitee's own negligence unless the agreement spells out the indemnitee's obligation in unequivocal terms." Liberty Mut. Ins. Co. v. Alsco Constr., 144 Ga.App. 307, 240 S.E.2d 899. Notwithstanding this, defendants Cofer and Beauchamp contend that the indemnity agreement in their lease with defendant Kenimer satisfies this requirement.
Defendants Cofer and Beauchamp rely most heavily upon our decisions in Robert & Co. Assoc. v. Pinkerton & Laws Co., 120 Ga.App. 29, 169 S.E.2d 360, while defendant Kenimer's argument draws heavily from Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga.App. 226, 144 S.E.2d 547, which was distinguished in the Robert & Co. Assoc. case partially on the basis of "the language of the applicable agreements, which fail to refer to acts or omission of the indemnitee as a basis for liability." Robert & Co. Assoc. v. Pinkerton & Laws Co., 120 Ga.App. 29, 32, 169 S.E.2d 360, supra. The case sub judice apparently should also be distinguished as the indemnity clause in the lease before us also fails to refer to act or omission (or negligence) of the indemnitee (defendants Cofer and Beauchamp). The indemnity clause in the lease in the case sub judice states: "Lessee agrees to indemnify and save harmless the Lessor against all claims for damages to persons or property by reason of the use or occupancy of the leased premises, and all expenses incurred by Lessor because thereof, including attorney's fees and court costs."
Neither does defendant Kenimer's acceptance of the premises in "as is" condition reflect an intent to assume liability for any negligence of defendants Cofer and Beauchamp. The reasoning expressed in Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga.App. 226, 144 S.E.2d 547, supra, is also applicable to this provision of the lease. See also Seaboard Coast Line R. Co. v. Dockery, 135 Ga.App. 540, 545, 218 S.E.2d 263. The trial court did not err in denying the motion for summary judgment of defendants Cofer and Beauchamp as to their cross-claim against defendant Kenimer.
Judgment reversed in Case No. 65668. Judgment affirmed in Case No. 65669.
A reasonable portrayal of the facts of this case shows that Mrs. Foster entered the dry cleaning...
To continue reading
Request your trial
-
Southern Ry. Co. v. Georgia Kraft Co.
...Coast Line R. Co., 554 F.2d 1299 (5th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977); Foster v. Kenimer, 167 Ga.App. 567, 307 S.E.2d 30 (1983); Bohannon v. Southern Ry. Co., 97 Ga.App. 849, 104 S.E.2d 603 (1958). In the absence of explicit language, courts will not i......
-
Jackson v. America's Favorite Chicken Co.
...See Brown, 554 F.2d at 1302; Batson-Cook Co., Inc, v. Industrial Steel Erectors, 257 F.2d 410 (5th Cir.1958); Foster v. Kenimer, 167 Ga. App. 567, 307 S.E.2d 30 (1983); and Seaboard Coast Line Railroad Company v. Union Camp Corp., 145 Ga.App. 417, 243 S.E.2d 631 The contract at issue simply......
-
Lamb v. K-Mart Corp., K-MART
...not sufficient to gain summary judgment to merely show that plaintiff had notice of the water on the surface. See Foster v. Kenimer, 167 Ga.App. 567(1), 307 S.E.2d 30 (1983); Cox v. Ray M. Lee Co., 100 Ga.App. 333(3), 111 S.E.2d 246 In opposition to appellees' motion for summary judgment La......
- Alghita v. Universal Inv. & Mfg. Co.