Hollis v. First Nat. Bank of Atlanta, s. 43194

• Decision Date: 15 January 1968
• Docket Number: 3,43195,Nos. 1,Nos. 43194,2,s. 43194,s. 1
• Citation: 159 S.E.2d 497,117 Ga.App. 145
• Parties: Marguerite E. HOLLIS v. FIRST NATIONAL BANK OF ATLANTA
• Court: Georgia Court of Appeals

Page 497

159 S.E.2d 497

117 Ga.App. 145

Marguerite E. HOLLIS v. FIRST NATIONAL BANK OF ATLANTA.

Nos. 43194, 43195.

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

Jan. 15, 1968.

Rehearing Denied Jan. 30, 1968.

Syllabus by the Court

The petition states a cause of action against the defendant for creating a foreseeable unreasonable risk of harm to the plaintiffs in constructing and maintaining elevated parking dividers in a parking lot in the manner alleged in the petition.

In these actions by a husband and wife for damages allegedly resulting from the defendant's negligence which caused the wife to fall and be injured on the defendant's premises, the plaintiffs appeal from judgments of the trial court sustaining the defendant's general demurrers.

The petitions allege: Mrs. Hollis left the defendant's bank by a walkway that is elevated about 8 inches above the defendant's parking lot where the walkway ends. When she stepped down to the parking lot she stumbled and fell on a wooden barrier about 6 inches high and about 1 1/2 steps from the end of the walkway, extending parallel with the end of the walkway about one-third the width of the walkway, positioned at ground level. The parking lot was greyish-white asphalt type material with the appearance of being flat and level. The barrier was of greyish-white spotted color about the same as the surface of the parking lot so that they could not be distinguished from each other, and gave the appearance of a continuous flat surface for walking upon.

She did not know the barrier was there, did not see it, and it was not visible or noticeable because its color tone and that of the parking lot were the same. She was holding her head straight forward and looking in the direction in which she was walking. The allegations of negligence included constructing and maintaining the barrier of a color undistinguishable from the parking lot surface, of a height less than the height of and below the surface of the walkway with its presence obstructed by the height of the walkway and unobservable by her.

Carnes, Jernigan, Dillon & White, James A. White, Jr., Atlanta, for appellant.

Lokey & Bowden, Glenn Frick, Atlanta, for appellee.

HALL, Judge.

The defendant contends that the cases of Sanders v. Jefferson Furniture Co., 111 Ga.App. 59, 140 S.E.2d 550; 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 and McHugh v. Trust Co. of Georgia, 102 Ga.App. 412, 116 S.E.2d 512, are controlling. Those cases merely hold that the mere fact of maintaining dividers elevated above the surface in parking areas does not in itself amount to negligence by the proprietor. See Johnson v. Thompson, 111 Ga.App. 654, 657, 143 S.E.2d 51. They do not hold that maintaining elevated parking dividers can never amount to negligence by the proprietor regardless of the surrounding circumstances. The question is whether these dividers expose an invitee to a foreseeable unreasonable risk of harm under the totality of the circumstances in each particular case. In making this determination, the court must consider the utility of the dividers with respect to the type of construction, location, observability to invitees and the state of maintenance. For a recent case where the undisputed evidence on summary judgment showed no genuine issue of liability see Broadview Plaza, Inc. v. Goodman, 116 Ga.App. 738, 158 S.E.2d 258.

In our opinion, the facts alleged in this petition relating to the location, appearance, and visibility of the barrier when compared with comparable allegations in the following cases, create an issue of fact for jury determination. Atlanta Terminal Co. v. Johnson, 15 Ga.App. 22, 82 S.E. 629; Rogers v. Sears, Roebuck & Co., 45 Ga.App. 772, 166 S.E. 64; Fuller v. Louis Steyerman & Sons, Inc., 46 Ga.App. 830, 836, 169 S.E. 508; Lane Drug Stores, Inc. v. Brooks, 70 Ga.App. 878, 29 S.E.2d 716; Delta Air Lines, Inc. v. Millirons, 87 Ga.App. 334, 73 S.E.2d 598; Wicker v. Roberts, 91 Ga.App. 490, 86 S.E.2d 350; Etheridge Motors, Inc. v. Haynie, 103 Ga.App. 676, 120 S.E.2d 317.

When the petition alleges facts creating an issue that the thing described as a defect was not observable to the plaintiff in the exercise of ordinary care but within the proprietor's actual or constructive knowledge, it is not subject to general demurrer. Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 624, 126 S.E. 388; Chotas v. J. P. Allen & Co., 113 Ga.App. 731, 149 S.E.2d 527, certiorari denied by the Supreme Court in 113 Ga.App. 887.

The trial court erred in sustaining the defendant's general demurrers.

Judgment reversed.

FELTON, C.J., JORDAN, P.J., and DEEN, QUILLIAN and WHITMAN, JJ., concur.

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

EBERHARDT, Judge (dissenting).

I must agree with the trial judge in his sustaining of the general demurrers. The factual situation presented in these petitions cannot, in my judgment, be logically distinguished 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 512; Carmichael v. Timothy, 104 Ga.App. 16, 120 S.E.2d 814; Cook v. Parrish, 102 Ga.App. 95, 123 S.E.2d 409; Pulliam v. Walgreen Drug Stores, Inc., 108 Ga.App. 90, 131 S.E.2d 801; Sanders v. Jefferson Furniture Co., 111 Ga.App. 59, 140 S.E.2d 550; Associated Distributors, Inc. v. Canup, 115 Ga.App. 152, 154 S.E.2d 32, and Broadview Plaza, Inc. v. Goodman, 116 Ga.App. 738, 158 S.E.2d 258, in all of which we held that no cause of action was presented. All of these were parking lot cases, and we are bound by them.

Ignoring of the rules...