Garnett v. Mathison

Decision Date29 May 1986
Docket NumberNo. 72113,72113
Citation179 Ga.App. 242,345 S.E.2d 919
CourtGeorgia Court of Appeals

J. Kenneth Royal, Jesup, for appellant.

Terry A. Dillard, Waycross, for appellee.

CARLEY, Judge.

Appellant entered upon the business premises of appellee to make a purchase. After making her purchase, appellant departed through the single doorway that served as the entrance and exit to the premises. This doorway led to a set of steps which descended to the street. Appellant apparently slipped at the top step, and fell to the street. Appellant brought suit against appellee to recover damages for her injuries. Appellee answered and subsequently filed a motion for summary judgment. The trial court granted appellee's motion, from which order appellant appeals.

1. The allegations of appellant's complaint, as amended, raised theories of common law negligence and of negligence per se. The negligence per se theory was based upon appellee's alleged failure to comply with certain provisions of the city building code. Appellant initially asserts that the trial court erroneously held that the provisions of the city building code were not applicable to the instant case.

The record shows that the building code was adopted in 1971. It was to be applicable to all new construction, as well as to any alterations to existing structures undertaken after that date. The code provisions in question mandate certain construction and maintenance requirements with which appellee's building admittedly did not comply. However, appellee's affidavit states that the building in which his place of business was located had been erected prior to 1968 and that no alterations had been made to the entrance or any other part thereof since that time. Appellant submitted no evidence to the contrary. Thus, appellee's building constitutes a "legal ... nonconforming use." Ray v. Gallant-Belk Co., 147 Ga.App. 580, 581, 249 S.E.2d 635 (1978). The evidence showing there to be no violation of any applicable statutory provision, the trial court did not err in granting summary judgment on the negligence per se claim.

2. For appellant to recover under a common law negligence theory, there must have been a defective condition on appellant's premises, which defect was the cause of appellant's fall and of which appellee had superior knowledge. See Barrow v. James, 107 Ga.App. 377, 378(3), 130 S.E.2d 352 (1963). "The law is clear that the basis for an owner's liability for injury occurring to another while on the owner's property is the owner's superior knowledge of the danger or defect which was the proximate cause of the injury. 'The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.' [Cit.] Thus, the 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 the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does." (Emphasis in original.) Purvis v. Holiday Hills Property Owners Assn., Inc., 163 Ga.App. 387, 388-389, 294 S.E.2d 592 (1982).

In the instant case, the record reveals that appellant could not testify to the presence of any foreign substance on the steps or near the doorway of appellee's building. Instead, she asserted that a self-closing door and the lack of a handrail on the right side of the doorway caused her to fall. Even assuming that these conditions might...

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21 cases
  • Oliver v. Complements, Ltd.
    • United States
    • Georgia Court of Appeals
    • January 24, 1989
    ...there is no liability for resulting injury because the tenant has as much knowledge of the hazard as the landlord. Garnett v. Mathison, 179 Ga.App. 242, 243, 345 S.E.2d 919; Bell v. Abercorn Toyota, 175 Ga.App. 668, 669, 333 S.E.2d 880; Purvis v. Holiday Hills, etc., Assn., 163 Ga.App. 387,......
  • Folks, Inc. v. Dobbs
    • United States
    • Georgia Court of Appeals
    • December 5, 1986
    ...v. Pizza Inn, 162 Ga.App. 682, 292 S.E.2d 562 (1982). See also the recent slip and fall summary judgment cases of Garnett v. Mathison, 179 Ga.App. 242, 345 S.E.2d 919 (1986), and Mewborn v. Winn-Dixie Stores, 179 Ga.App. 284, 346 S.E.2d 95 Accordingly, the trial court erred in denying defen......
  • Evans v. Mathis Funeral Home, Inc., 92-8856
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 23, 1993
    ...may be presumed to have equal knowledge when she has repeatedly been exposed to the hazardous condition. See Garnett v. Mathison, 179 Ga.App. 242, 345 S.E.2d 919, 920 (1986); Purvis, 294 S.E.2d at 593-94. Evans had only been exposed to the steps once before, and that exposure occurred two y......
  • Pickard v. Cook
    • United States
    • Georgia Court of Appeals
    • November 19, 1996 the owner or occupant of the premises and not known to the person injured that a recovery may be permitted. Garnett v. Mathison, 179 Ga.App. 242(2), 345 S.E.2d 919 [(1986)]." Foodmax of Ga. v. Fleming, 219 Ga.App. 469, 470, 465 S.E.2d 489 " ' "The application of [OCGA § 51-3-1] cannot be......
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