Griffith v. Morgan, 43191

• Decision Date: 15 January 1968
• Docket Number: Nos. 1,No. 43191,2,3,43191,s. 1
• Parties: A. B. GRIFFITH v. Ruth MORGAN
• Court: Georgia Court of Appeals

Page 420

160 S.E.2d 420

117 Ga.App. 216

A. B. GRIFFITH v. Ruth MORGAN.

No. 43191.

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

Jan. 15, 1968.

Rehearing Denied Feb. 12, 1968.

Certiorari Denied April 9, 1968.

Syllabus by the Court

1. The petition stated a cause of action, sufficient as against the general demurrer, for negligence with regard to the maintenance of an allegedly defective curb

on a parking area; therefore, the court did not err in overruling the general demurrer.

2. The special demurrer was improperly overruled.

Ruth Morgan brought an action against A. B. Griffith for damages for alleged personal injuries sustained as a result of the defendnat's alleged negligence. The petition, as finally amended, alleged materially as follows: '2. The defendant owner leases the premises at 1160 Prince Avenue to Dr. Nile Clark, M.D. for use as offices in the practice of medicine. 3. At the front entrance of the doctor's office is a porch with one step leading down to the blacktop parking area between the office and Prince Avenue. 4. Separating the parking area from the front porch of Dr. Clark's office was a curb approximately six inches in height and running parallel to the front porch for the length of the building and this curb is so situated that (it) leaves a narrow path of about 2 1/2 feet between it and the front porch steps. 5. The shape of the curb is very deceptive, giving the appearance of being symmetrical design but in fact is constructed in a shape similar to a quarter section of a circle and in addition the curb was painted with an unknown type of paint that caused it to be very slippery. 6. In addition to the negligent construction, deceptive appearance and slippery surfacae of the curb it was negligently and improperly placed directly in front of the main entrance of the doctor's office. 7. On an unknown date, soon after the negligent construction of the curb, notice was given to the defendant owner's secretary by Mrs. Barbara Clark, Dr. Nile Clark's wife, that an unknown person had stumbled over the defective curb and that the curb should be fixed or removed to prevent further injury to Dr. Clark's patients. 9. On April 8, 1966, after visiting Dr. Clark's office for professional treatment, Mrs. Morgan came out of the main door of his office, stepped down on the step and then stepped on to the blacktop paving area, and then she took a step to go to her car but stepped onto the deceptive looking curb and slipped across the deceptive looking curb. 10. The sole reason for Mrs. Morgan's fall and her resulting injuries, as set forth later, was the negligent construction of the curb, the slippery paint used to paint that curb, the improper placing of the curb in front of a heavily used doctor's entrance, and the negligent conduct of the defendant in not providing for the safety of his lessee's patients or even warning them of the dangerous situation that existed. * * * 15. Ruth Morgan specifies the following acts of negligence by the defendant as being the direct cause of her accident and the resulting injuries: A. In constructing a curb deceptive in appearance. B. In negligently constructing the curb as hereinbefore stated and described so that it was dangerous for anyone using their parking lot. C. In painting this curb with a very slippery type paint. D. In failing to warn the public of this dangerous situation by a sign or any other means. E. In negligently locating the inherently dangerous curb in such a manner as to make it even more of a hazard than it already was.'

The defendant filed general and special demurrers to the petition and filed renewed and additional demurrers to the petition as finally amended. The court overruled all of the foregoing, from which judgment the defendant appeals.

Swift, Currie, McGhee & Hiers, Robert S. Harkey, Atlanta, for appellant.

Cook, Pleger & Boulogne, J. Vincent Cook, William Goodman, Athens, for appellee.

FELTON, Chief Judge.

1. The principal issue raised by the general demurrer is whether the defendant landowner was negligent in constructing and maintaining on his property, used as a public parking area for doctors' patients, a curb which is alleged to be six inches high, shaped deceptively and asymmetrically like a quarter section of a circle, extending parallel to and for the length of the building, located between the building and the blacktop parking area, 2 1/2 feet from the front porch steps, and painted with a paint of unknown type and unspecified color, so as to make it very slippery.

It is a question for a jury whether the owner of premises has exercised proper care and diligence in keeping the premises safe for those invited thereon, especially when the defective condition is one of such character that reasonable and prudent men may reasonably differ as to whether an injury could or should have been reasonably anticipated from its existence or not. Code § 105-401; Goldsmith v. Hazelwood, 93 Ga.App. 466, 92 S.E.2d 48; Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84. None of the cases cited to us involving similar factual situations, in which the owner or occupier has been held not negligent as a matter of law, has the same set of facts as the instant case. Each case must rest upon its own facts, of which there is an infinite variety. This case is distinguishable on its facts from Broadview Plaza, Inc. v. Goodman, 116 Ga.App. 738, 158 S.E.2d 258, in that, in that case, the curb or divider was so placed that it was not necessary to walk over it, it was not asymmetrically shaped or slippery, it did not appear that the plaintiff had tripped on the alleged defect on the divider, rather than merely on the divider itself, and, finally, that plaintiff was in the process of stepping over the divider, rather than stepping onto it, as the present plaintiff alleges she did.

We are of the of opinion that the present petition alleges a cause of action arising out of the defendant's negligence. Whether or not the plaintiff failed to avoid the consequences of the defendant's negligence, if any, is also a jury question. Chotas v. J. P. Allen & Co., 113 Ga.App. 731, 734, 149 S.E.2d 527 and cit.

2. The court erred in its judgment overruling the special demurrer to Paragraph 7 of the petition. Said paragraph does not allege that the defendant's notice of the other alleged injury was received prior to the plaintiff's fall, but merely that it was on an 'unknown date, soon after the negligent construction of the curb,' which could have been after her fall.

The court did not err in its judgment overruling the general demurrer to the petition as amended, but erred in overruling the special demurrer thereto.

Judgment affirmed in part; reversed in part.

JORDAN, P.J., and HALL, PANNELL, DEEN, QUILLIAN and WHITMAN, JJ., concur.

BELL, P.J. and EBERHARDT, J., dissent.

EBERHARDT, Judge (dissenting).

In my judgment the factual situation presented by this petition is not logically distinguishable from those presented in McMullan v. Kroger Co., 84 Ga.App. 195, 65 S.E.2d 420; Ely v. Barbizon Towers, Inc., 101 Ga.App. 872, 115 S.E.2d 616; McHugh v. Trust Co. of Georgia, 102 Ga.App. 412, 116 S.E.2d 513; Carmichael v. Timothy, 104 Ga.App. 16, 120 S.E.2d 814; Cook v. Parrish, 105 Ga.App. 95, 123 S.E.2d 409; Pulliam v. Walgreen...