Gray v. Delta Air Lines, Inc., 47223

• Citation: 192 S.E.2d 521,127 Ga.App. 45
• Decision Date: 06 September 1972
• Docket Number: No. 47223,No. 3,47223,3
• Parties: Agnes A. GRAY v. DELTA AIR LINES, INC. et al
• Court: United States Court of Appeals (Georgia)

Page 521

192 S.E.2d 521

127 Ga.App. 45

Agnes A. GRAY v. DELTA AIR LINES, INC. et al.

No. 47223.

Court of Appeals of Georgia, Division No. 3.

Sept. 6, 1972.

Hugh G. Head, Jr., Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, D. N. Love, Henry L. Bowden, Ralph H. Witt, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Plaintiff was injured when she stumbled and fell at the Delta Air Lines ticket counter in the City of Atlanta Airport Terminal. She sued both Delta and the municipality as its landlord jointly, and appeals from the grant of summary judgment to the defendants.

Along with other air lines, Delta leases terminal space in the Atlanta airport in which it has installed a built-in block of ticket counters as a homogenous straightline unit composed of two counters, a luggage pass-through, two more counters, etc. The entire unit is bound together by a seven-inch-high continuous metal base at floor level, and the counter backs and luggage scales are marked by narrow vertical metal bands. Each luggage pass-through is open at both ends so that luggage may be placed on the platform by the incoming passenger, weighed, and removed by the ticket seller behind the counter. It conforms to the format used generally throughout the building. No part of it obtrudes into passenger standing space. The luggage platforms are of the same depth as the ticket counters, about two feet.

The City of Atlanta is the owner of the Hartsfield International Airport Terminal Building. Under the pertinent portions of its lease with Delta, the area occupied by Delta's ticket counters and baggage racks was completely under the control and domination of the tenant, even to the extent of the tenant owning, erecting, and controlling the continuum which constituted the ticket selling and luggage platform area.

From the petition and the plaintiff's affidavit and depositions it appears that she and her niece approached the ticket counter so that the niece could purchase tickets from Delta with a check made out by the plaintiff; that the attendant motioned the plaintiff to move up closer because he could not read her identification, and when she did so her foot hit the metal base of the adjoining luggage pass-through, throwing her off balance so that she fell and was injured.

Summary judgments were granted both defendants and plaintiff appeals.

1. Although the appellant argues that the lobby area surrounding the ticket counter was under the control of the defendant City of Atlanta and comes within the word 'approaches' under the terms of Code § 105-401 the lobby had nothing to do with the plaintiff's fall. Since the baggage platform was erected by Delta and owned by Delta with right of removal at termination of the lease, the case comes within the doctrine stated in Horton v. Ammons, 125 Ga.App. 69, 186 S.E.2d 469 that 'Where the lessee has exclusive control of the premises, the lessor has no duty to inspect or any liability for defective construction or installation not made under his direction. Scarboro Enterprises, Inc. v. Hirsh, 119 Ga.App. 866, 169 S.E.2d 182; National Distributing Co. v. Georgia Industrial Realty Co., 106 Ga.App. 475, 127 S.E.2d 303; Dobbs v. Noble, 55 Ga.App. 201, 189 S.E. 694.' Accordingly Rothberg v. Bradley, 85 Ga.App. 477, 69 S.E.2d 293, relied upon by plaintiff, is not applicable.

Furthermore, another reason for exonerating the City of Atlanta exists in the controlling case of City of Atlanta v. Ransom, 115 Ga.App. 720, 155 S.E.2d 687, in which the facts are identical to those before the court. As is stated in the city's brief, '(W)hatever hazard confronted the appellant was at the dividing line between the portion of the lobby floor occupied and controlled by Delta and was physically situated on the portion occupied and controlled by Delta. The abrupt change in the elevation of seven inches between the lobby floor and the top of the luggage pass-through was created by a structure owned, controlled and maintained exclusively by Delta.' Accordingly, the trial court properly granted summary judgment in favor of this defendant.

2. The record as to Delta Air Lines, Inc., however, presents a different picture, and closely resembles the situation in Hightower v. City Council of Augusta, 124 Ga.App. 537, 184 S.E.2d 678, where this court ruled that a jury issue existed. Hightower was a slip-and-fall case in an airport lobby, the facts involving a fall 'on the slick hard floor in a puddle of water which had been allowed to accumulate within a radius of several feet from the umbrella rack.' Among the grounds of negligence alleged were that defendant air line was negligent as follows: '(1) In providing a receptacle for its umbrellas which allowed water to drain therefrom and onto the floor of said terminal; (2) in negligently maintaining its umbrella rack in such a position and location as to allow water to drain from the wet umbrellas through said rack and onto the floor of said terminal'. This court pointed out that under notice pleading a complaint must be construed in the light most favorable to the plaintiff and with all points of doubt resolved in his favor even though unfavorable constructions are possible. In the case sub judice we are dealing with a summary judgment where the rules binding upon this court are even more stringent and onerous upon the defendant.

Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 206, 163 S.E.2d 256, 257, says: 'On motion for summary judgment, the movant has the burden of showing the absence of any genuine issue of material fact, and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga.App. 1, 4, 126 S.E.2d 442; International Brotherhood (of Boilermakers) v. Newman, 116 Ga.App. 590, 592, 158 S.E.2d 298. The movant 'has this burden even as to issues upon which the opposing party would have the trial burden. And the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence.' Colonial Stores, Inc. v. Turner, 117 Ga.App. 331, 333, 160 S.E.2d 672, 674; 6 Moore's Federal Practice (2d Ed.) 2853, § 56.23.'

Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 181 S.E.2d 866 ruled in reply to a certified question from this court that where a party upon whom the burden of proof upon the trial of the case does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, is construed most strongly against the movant.

Pitch 'n Putt, Inc. v. Atcheson, 123 Ga.App. 200, at page 201, 180 S.E.2d 246, at page 247, quotes with approval from Chastain v. Atlanta Gas Light Co., 122 Ga.App. 90, 176 S.E.2d 487: 'This court has repeatedly held, and particularly in negligence cases, that it is permissible to grant a motion for summary judgment only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. See Holland v. Sanfax Corp., 106 Ga.App. 1, 4, 126 S.E.2d 442; Malcom v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188, supra. The burden to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law is upon the moving party, and any and all reasonable doubts as to the existence of such issue are resolved against the movant, with the trial court giving the party opposing the motion 'the benefit of all favorable inferences that may be drawn from the evidence.' Holland v. Sanfax Corp., supra. Thus, in negligence cases, it must be plainly and palpably shown that the defendants in no way contributed to the proximate cause of the damages incurred in order for the trial court to sustain a motion for summary judgment in their favor.'

'The burden is upon the movant to show no genuine issue as to any material fact, and the opposing party is given the benefit of all favorable inferences that may be drawn from the evidence. (cits.)' Candler General Hospital v. Purvis, 123 Ga.App. 334, 181 S.E.2d 77.

Upon applying these directives to the record it is submitted a jury issue is created in a number of matters but specifically in these portions of plaintiff's counter-affidavit: 'Neither defendant gave plaintiff any warning that, when she was invited by the ticket agent to move in closer so he could see her papers or whatever he wanted to observe, she would be tripped up by an obstruction which was too high for the foot normally to glide over, and too low to hold up a person and also too low to be caught by the eye or to be noticed as a danger and an obstruction to safe passage at that particular point and under the circumstances in which Defendants were using their lobby arrangement.' (R. p. 268)

Additionally, this counteraffidavit rebuts the contention as to her contributory negligence by this language: '. . . (T)he floor at the counter was beige, the floor on which the counter stood . . . was walnut, so that they harmonized and blended but did not form a striking pattern to catch the eye, and this further constituted an unsafe condition at a point where a passenger is invited in at a time when the head and eye of that passenger are both partly above and over the counter and not in a position to see or observe meaningfully the dangerous foot obstruction only 7 inches in height and in perfect position to trip and cause a fall to the passenger whose attention is naturally being devoted to her ticket business. Plaintiff could not and did not see nor was she aware...