Great Atlantic & Pacific Tea Co. v. Turner, 72903

• Decision Date: 14 October 1986
• Docket Number: No. 72903,72903
• Citation: 349 S.E.2d 537,180 Ga.App. 533
• Court: Georgia Court of Appeals
• Parties: GREAT ATLANTIC & PACIFIC TEA COMPANY v. TURNER.

Page 537

349 S.E.2d 537

180 Ga.App. 533

GREAT ATLANTIC & PACIFIC TEA COMPANY v. TURNER.

No. 72903.

Court of Appeals of Georgia.

Oct. 14, 1986.

H. Baxter Harcourt, Tina G. Stanford, Columbus, for appellant.

Samuel W. Oates, Jr., Alexander V. Pinter, Columbus, for appellee.

DEEN, Presiding Judge.

On September 6, 1986, as she was exiting the A & P Food Store in Columbus, Georgia, the appellee, Marie Turner, tripped over the metal threshold to the automatic door and fell. She suffered injuries to her left knee and ankle which ultimately required surgical procedures to remove inflamed tissue.

Although Turner admitted that she was a frequent patron of the store, she claimed that she had never noticed the metal threshold because it was obscured by the door. On the day she fell, she had proceeded to walk through the doorway without looking down, as she normally did, when her left shoe caught on a one-inch gap between the threshold and the floor. She also testified that the rubber mat before the threshold was quite worn at the time. Testimony of other witnesses corroborated Turner's claim about the threshold gap and the worn rubber mat. One witness, who also frequently shopped at the store, testified that during several trips to the store before Turner's fall, she had noticed that the threshold was loose, although she had never reported this condition to any A & P employee. Witnesses for the A & P Food Store denied the existence of any threshold gap or worn rubber mat.

The jury returned a verdict for Turner in the amount of $140,000. On appeal, A & P contends that the trial court erred (1) in denying its motions for directed verdict and for judgment notwithstanding the verdict; (2) in allowing into evidence a mortality table; and (3) charging the jury on permanent disability and use of the mortality table in determining the amount of damages to award Turner. Held:

1. Construing the evidence most favorably to upholding the jury verdict, the verdict was not contrary to law or the evidence. "[T]he basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury." Inglett v. Winn Dixie, 168 Ga.App. 192, 194, 308 S.E.2d 587 (1983). There was evidence of a gap between the threshold and the floor, and that this defective condition had existed for a considerable period of time. This evidence authorized a finding that the defendant had been afforded a reasonable time within which to inspect and remove the hazard, and thus knowledge of the condition was imputable to the defendant. See, generally, Alterman Foods v. Ligon, 246 Ga. 620, 272 S.E.2d 327 (1980); Gold & White v. Long, 159 Ga.App. 259, 283 S.E.2d 45 (1981); but compare Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84 (1957). A & P contends that Turner had equal knowledge by virtue of her frequent patronage of the store and the open and obvious nature of the threshold, and invokes the general rule that an invitee must use all her senses in a reasonable measure to discover and avoid those things that might injure her. McGrew v. S.S. Kresge Co., 140 Ga.App. 149(4), 230 S.E.2d 119 (1976). However, the evidence showed that the threshold was mostly concealed by the door when closed, and while the frequency of Turner's visits may have authorized the jury either to reject her claim that she had never noticed the threshold or to find that she should have noticed the condition, certainly neither conclusion was demanded as a matter of law. Compare McMullan v. Kroger Co., 84 Ga.App. 195, 65 S.E.2d 420 (1951). In summary, Turner presented evidence of fault on the defendant's part and ignorance of the hazard on her part, and the trial court thus properly declined to direct a verdict for A & P or grant judgment notwithstanding the verdict. See Alterman Foods v. Cathcart, 172 Ga.App. 809, 324 S.E.2d 513 (1984).

2. Over A & P's objection, the trial court instructed the jury that it could award damages for diminution of Turner's earning capacity, and admitted into evidence a mortality table to be used in calculating such damages. A & P contends that there was no evidence of permanent impairment. A jury charge on and award for diminution of earning capacity is authorized where there is evidence that the plaintiff's capacity to labor and earn money has been permanently impaired, evidence of the pre-injury earning capacity, and evidence of the nature and extent of the disability. Michaels v. Kroger Co., 172 Ga.App. 280, 322 S.E.2d 903 (1984). Although this is a close case, we conclude that the evidence was sufficient to support the charge and award.

We note that Turner's own treating physician declined to indicate any percentage of permanent disability and in fact, two weeks before the trial, anticipated that she probably would be ready for full work in a couple of months, and that Turner had actually returned to work at the time of the trial. However, Turner testified that she still was physically impaired, unable to perform completely her usual job duties as nurse, and still experienced pain; indeed, her employer was making efforts to assign her easier shifts. From this evidence, the jury could determine some degree of permanent impairment, notwithstanding the lack of definite medical evidence. Barker v. Crum Trucking Co., 137 Ga.App. 435, 224 S.E.2d 53 (1976); see especially, Jones v. Hutchins, 101 Ga.App. 141, 113 S.E.2d 475 (1960). The use of the mortality tables was permissible, and the trial court's jury instruction on such use properly emphasized that the jury must first find a permanent impairment. Southern R. Co. v. Daniell, 102 Ga.App. 414, 116 S.E.2d 529 (1960).

3. A & P's contention that the jury verdict of $140,000 must be set aside as excessive is without merit. Since at the time of the trial, Turner's accumulated medical expenses were $14,711.55, most of the jury award obviously was for her past, present, and future pain and suffering, a determination of which is generally for the enlightened conscience of the jury. Southern R. Co. v. Oliver, 177 Ga.App. 729, 341 S.E.2d 270 (1986). In this case, we cannot condemn the award of $140,000 as flagrantly outrageous or monstrous. Compare, Seaboard System R. v. Taylor, 176 Ga.App. 847(2), 338 S.E.2d 23 (1985).

Insofar as the special concurrence implies that in the motion for new trial A & P based its attack on the verdict as excessive solely on the evidentiary and jury charge issues, it should be noted that in the actual...