Ingram v. Toccoa Triple Cinema, Inc.

Decision Date05 August 1996
Docket NumberNo. A96A0873,A96A0873
Citation474 S.E.2d 293,222 Ga.App. 409
CourtGeorgia Court of Appeals

Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Kim T. Stephens, Athens, for appellants.

Barnes, Browning, Tanksley & Casurella, Marietta, Michael K. Jablonski, Atlanta, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Phillip Ingram sued Toccoa Triple Cinema, Inc. ("the Cinema") for personal injuries allegedly sustained when he slipped and fell on ice as he left the theater on January 22, 1994. Ingram's wife brought a loss of consortium claim. The Ingrams appeal the summary judgment in favor of the Cinema.

To prevail at summary judgment under OCGA § 9-11-56, the Cinema as the movant must demonstrate that no genuine issues of material fact remain to be tried and that the disputed facts, viewed in the light most favorable to Ingram, the non-movant, warrant summary judgment as a matter of law. OCGA § 9-11-56(c). Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Viewed in that light, the evidence was as follows.

A winter storm had passed through the Toccoa area about a week before the incident at issue. Weather conditions improved, and the Cinema was closed for only one day. Ingram, who resided in Carnesville, 25-30 miles southeast of Toccoa, testified that the effects of the winter storm had largely disappeared in his area, having lasted mostly for a day. Ingram and his wife, along with a friend, drove to the Cinema to see a movie. Upon their arrival, he disembarked near the Cinema's front door and did not traverse the parking lot. A Cinema employee, Clayton Leverett, testified that the whole parking lot was wet and that it was generally wet in Toccoa that day. Leverett further testified that although no snow had fallen for several days, there was ice outside on the sidewalk and in the parking lot. Winston Panter, manager and co-owner of the Cinema, testified that it was mostly "wet out front ... just wet, not frozen" out in front of the building. Although no additional precipitation had fallen for several days, slush appeared each day on the Cinema's front sidewalk as ice or snow melted from the Cinema's awning. Both Leverett and Panter testified that on a daily basis, Leverett swept slush and mess off the sidewalk as it fell from the awning. After slush fell from the awning during the day, it refroze at night. Despite being unable to remove all of the ice and water from the front sidewalk, neither man placed any sand or warning signs, ropes, or barricades on that sidewalk until after Ingram fell.

After the matinee concluded, Ingram exited using a different route from the way he entered the Cinema. As Ingram started down the Cinema's sidewalk, he noticed some ice next to the building and about a foot of ice on the edge of the section of sidewalk contiguous with the parking lot. Attempting to avoid visible ice, Ingram stepped onto what he thought was just a wet area in between the icy sections. As he did so, he slipped, slid, and broke his femur, necessitating the insertion of a metal plate in his leg.

The trial court granted summary judgment determining that Ingram could not recover because he assumed the risk of slipping when he chose to walk on a wet sidewalk adjacent to a patch of ice under cold weather conditions. Held:

Ingram contends that the trial court erred in granting summary judgment because material issues of disputed fact remain as to whether he knew of the specific hazard and whether he failed to exercise ordinary care for his own safety. As a general rule, although a proprietor is liable in damages to an invitee for injuries caused by the proprietor's failure to exercise ordinary care in keeping his premises and approaches safe, a plaintiff cannot recover if the plaintiff by exercising ordinary care for his own safety could have avoided the consequences of the proprietor's negligence. See OCGA §§ 51-3-1 and 51-11-7. A finding that a plaintiff is precluded from recovering because of his equal or superior knowledge is essentially a finding that the plaintiff's negligence preponderated in causing the injury. Jackson v. Camilla Trading Post, 218 Ga.App. 164, 168, 460 S.E.2d 849 (1995).

To establish the Cinema's liability, Ingram had to show that the Cinema had...

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2 cases
  • Wallace v. Nissan of Union City, Inc.
    • United States
    • Georgia Court of Appeals
    • November 3, 1999
    ...of law that Wallace had knowledge of this specific hazard that equaled or surpassed that of Nissan. See Ingram v. Toccoa Triple Cinema, 222 Ga.App. 409, 411, 474 S.E.2d 293 (1996); compare Shansab, supra at 451, 422 S.E.2d 305 (despite knowing about icy condition, plaintiff nevertheless att......
  • Elder v. Care-More, Inc., CARE-MOR
    • United States
    • Georgia Court of Appeals
    • February 18, 1997
    ...(summary judgment foreclosed where plaintiff kept "vigilant lookout" for presence of ice in her path); accord Ingram v. Toccoa Triple Cinema, 222 Ga.App. 409, 474 S.E.2d 293 (1996). Elder's failure to exercise ordinary care for her own safety as demanded by the inimical weather conditions t......
2 books & journal articles
  • Torts - Deron R. Hicks
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 49-1, September 1997
    • Invalid date
    ...223 Ga. App. at 200, 477 S.E.2d at 351. 72. 223 Ga. App. 574, 478 S.E.2d 396 (1996). 73. 224 Ga. App. 722, 481 S.E.2d 874 (1997). 74. 222 Ga. App. 409, 474 S.E.2d 293 (1996). 75. 222 Ga. App. 97, 473 S.E.2d 531 (1996). 76. 221 Ga. App. 897, 473 S.E.2d 209 (1996). 77. 223 Ga. App. at 575, 47......
  • Smith v. State: the Georgia Supreme Court Mandated Jury Instructions in Battered Person Syndrome Cases - Sherry M. Hall
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 49-4, June 1998
    • Invalid date
    ...the fears of a reasonable person." Id. at 197-98, 486 S.E.2d at 821 (citing O.C.G.A. Sec. 16-3-21(a) (1996)). 15. 222 Ga. App. at 413, 474 S.E.2d at 293. 16. Id. (emphases added) (citing Chester v. State, 267 Ga. 9, 16-17, 471 S.E.2d 836, 840-41 (1996) (Sears, J., concurring specially)). 17......

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