Gibson v. Consolidated Credit Corp.

• Decision Date: 14 July 1964
• Docket Number: 2,Nos. 1,No. 40616,3,40616,s. 1
• Citation: 138 S.E.2d 77,110 Ga.App. 170
• Parties: Mrs. Lewis GIBSON v. CONSOLIDATED CREDIT CORPORATION
• Court: Georgia Court of Appeals

Page 77

138 S.E.2d 77

110 Ga.App. 170

Mrs. Lewis GIBSON v.CONSOLIDATED CREDIT CORPORATION.

No. 40616.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 14, 1964.

Rehearing Denied July 30, 1964.

Syllabus by the Court

1.The use of a material commonly accepted in the building industry as floor covering is not negligence.

2.(a).The true ground of liability of the owner or occupant of property to an invitee who is injured thereon is the superior

knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.

(b).It is a matter of common knowledge that, during a rainy occasion, water may be tracked into a store or other building frequented by the public on the shoes, clothing and umbrellas of those who enter.

(c).There is no duty on the part of the proprietor to mop continuously during the course of a rainy occasion to keep the floor free from water that may be tracked in.

3.There is no duty on the part of the proprietor to warn those who enter his store or place of business during a rainy occasion that there may be accumulations of water on the floor which have been tracked in or that the presence of the water may cause the floor to be slippery.

Mrs. Lewis Gibson sued Consolidated Credit Corporation for damages for personal injuries allegedly sustained by her when she fell in the defendant's place of business.The petition alleged that on the day on which the plaintiff sustained the injuries it had been raining earlier, but that at the time she entered the defendant's place of business 'the rain had stopped and that there was only a light drizzle;' that the defendant was negligent in constructing said floor of smooth tile which became slippery when wet, and in not constructing same with non-skid abrasives built therein so that the same would not become slippery and dangerous when wet; that the floor of defendant's office was wet and slippery because an excess amount of water had accumulated thereon as a result of water having dripped off the clothing of other customers and patrons of the defendant; that this made the floor unusually slippery and dangerous, a fact which was known to the defendant, in that the water had been brought in and deposited by defendant's customers over a period of several hours, and that defendant knew, or by the exercise of ordinary care should have known that said water was accumulating on its office floor; that, nevertheless, the defendant negligently failed to remove the water or to place a mat on the floor or to warn customers of its presence, and that the plaintiff was at all times in the exercise of ordinary care and that 'there was nothing to indicate or to warn plaintiff * * * that the floor * * * was wet and slippery and dangerous, and that it would not be safe for plaintiff to walk across said floor,' and 'its dangerous condition was not visible to her and * * * she slipped upon said tile floor which was caused to be slippery and dangerous by the transparent water located thereon;' that the defendant was negligent in failing to warn plaintiff of the danger existing by reason of the presence of the water on the floor or to post a sign of warning of that fact.The trial court sustained a general demurrer to the petition, and this judgment is assigned as error here.

Thomas C. Burton, Toccoa, Kimzey & Kimzey, Herbert B. Kimzey, Cornelia, for plaintiff in error.

Whelchel, Dunlap & Gignilliat, Gainesville, McClure, Ramsay & Struble, George B. Ramsay, Jr., Toccoa, for defendant in error.

EBERHARDT, Judge.

1.There is no merit in the contention that the defendant here was negligent in the use of tile as a floor covering in its place of business, for tile of one kind or another--asphalt, rubber based, cork, plastic, ceramic, etc., has come to be perhaps the most widely used of materials in the building trade for covering floors.It is used on wood and on concrete--perhaps other bases.Architects specify it.Contractors use it.Builders buy it.Everybody accepts it.

This court took judicial notice in Holloman v. Henry Grady Hotel Co., 42 Ga.App. 347, 348, 156 S.E. 275 that marble is a proper building material for steps and held that 'even when polished, it is not naturally slick and dangerous.'In Maloof v. Blackmon, 105 Ga.App. 207, 124 S.E.2d 441 where the plaintiff contended that there was negligence on the part of the owner of an apartment house by reason of the fact that the steps at the entrance were constructed of brick, were smoothly worn from use and were, when wet, extremely slick and dangerous, we took notice that brick is a proper building material and held that its use was not negligence.We can see no substantial difference in the allegations of the petition in Holloman and Maloof with respect to this matter and those in the petition here.

Cox v. Ray M. Lee Co., Inc., 100 Ga.App. 333, 111 S.E.2d 246 does not require a different ruling here.In that casethe court did not hold that the use of concrete, the material used in building steps and a landing at the entrance to a church, was negligence.The petition alleged that the steps 'were so excessively troweled with a steel trowel, rather than a wood float trovel or being sprinkled with a steel abrasive hardner as ordinary care required, that when they became wet or damp with rain water they became too slippery for persons to walk on them without slipping, a condition inherently and intrinsically and imminently dangerous to all third persons walking thereon.'Active negligence in the improper installation of the concrete was alleged, and that case is not authority for a holding that the installation of an accepted material is negligence simply because it become slippery when wet.There is scarcely any material that might be used in construction that isn't made somewhat slippery by the presence of water.This is a matter of common knowledge, and, since it is, it behooves us all of use a measure of precaution in walking upon wet surfaces.'It is common knowledge that people fall on the best of sidewalks and floors.'Knopp v. Kemp & Hebert, 193 Wash. 160, 74 P.2d 924, 926.

2.'The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter.Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises.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.'20 RCL 56, § 52.

We have held only a few days ago, as has been done many times before, that a merchant is not an insurer of the safety of his customers; his duty to them being that of ordinary care.Platz v. Kroger Co., 110 Ga.App. 16, 137 S.E.2d 561.Or, as Judge Hall put it in his concurrence in Kreiss v. Allatoona Landing, Inc., 108 Ga.App. 427, 439, 133 S.E.2d 602, as did Judge Townsend in Hill v. Davison-Paxon Co., 80 Ga.App. 840, 57 S.E.2d 680, the duty is to protect others 'against an unreasonable risk of harm.'How measures the petition here against that standard?Stripped of its conclusions the allegations are simply that on a rainy morning plaintiff went to defendant's office to make a payment on her loan and that she slipped and fell on the floor due to an accumulation of water which had been brought in by other customers; that the water was transparent and that she did not know of the existence of the dangerous condition.She alleges that it had been raining for several hours and, at the time she went in, had 'stopped' to a drizzle.

'Everybody knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and every one knows that a damp floor is likely to be a little more slippery than a dry floor.'Knopp v. Kemp & Hebert, 193 Wash. 160, 74 P.2d 924, 926.'Owners or lessees of stores, office buildings, banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come.Everybody knows that the hallways between the outside doors of such buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be.The same thing is true in the hallways of all post offices.It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them here in detail.'Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132.

'[T]he fact that water, slush, and mud are tracked in on the floor of premises because of weather conditions outside ordinarily does not create an actionable situation, although the floor is thereby rendered wet, dirty, and slippery, except, perhaps, in some circumstances, as where it is shown that the construction of the entranceway was inherently dangerous or that the person responsible for the condition of the premises failed to use due care to remedy unreasonably dangerous conditions after actual or constructive notice thereof.'65 C.J.S.Negligence§ 81, p. 588.

'The fact that during a rainstorm some water was thrown into the front of a store, due to the frequent opening of the door by customers, thereby...