Hadaway v. Cooner Enterprises, Inc.

• Decision Date: 14 September 1984
• Docket Number: No. 68473,68473
• Parties: HADAWAY v. COONER ENTERPRISES, INC.
• Court: Georgia Court of Appeals

Page 830

321 S.E.2d 830

172 Ga.App. 113

HADAWAY v. COONER ENTERPRISES, INC.

No. 68473.

Court of Appeals of Georgia.

Sept. 14, 1984.

Steven D. Smith, Columbus, for appellant.

J. Ronald Mullins, Jr., Columbus, for appellee.

QUILLIAN, Presiding Judge.

Plaintiff brought an action for injuries she sustained when she fell at the entranceway to defendant's supermarket. According to the allegations of the complaint the entranceway was constructed of cement and expansion cracks were grooved therein; that due to ordinary traffic upon the entrance the expansion cracks had deepened and widened; that a dangerous depression was thereby created; that defendant failed to inspect and maintain the entrance; that plaintiff was without knowledge of the depression and did not know and could not discover it; that she received injuries when she fell by stepping into the depression.

The defendant answered and then moved for summary judgment on the ground there was no genuine issue as to any material fact and offered in support thereof the pleadings, plaintiff's deposition and other matters of record.

According to plaintiff she had visited defendant's grocery store once a week for over a year prior to her fall, and had been over the same area many times before. She also related that her heel caught in a crack in the cement causing her to fall. She stated she was watching where she was going and there was nothing obstructing her vision; the sidewalk was level. Plaintiff was asked if the crack was in plain view and responded "I never really noticed it before." She also answered "you probably could" to the query "you didn't have to get down on your hands and knees and look right at it, you could look down and see it couldn't you?" She also related there was nothing to prevent or to distract her from seeing the crack.

The trial judge granted the defendant's motion for summary judgment and the plaintiff appealed to this court. Held:

The general rules applicable to this type of case are found in Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 173, 138 S.E.2d 77 wherein it was held: " '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.' " Accord McIntyre v. Corporate Property Investors, 160 Ga.App. 868, 869, 288 S.E.2d 584.

As pointed out in Inglett v. Winn Dixie, Greenville, 168 Ga.App. 192, 193, 194, 308 S.E.2d 587: "[w]e discern a distinction between emergency conditions existent on an owner's premises and static conditions which are not inherently dangerous in and of themselves." There the court...