Knudsen v. Duffee-Freeman, Inc., DUFFEE-FREEMA

CourtUnited States Court of Appeals (Georgia)
Citation99 S.E.2d 370,95 Ga.App. 872
Docket NumberNo. 36730,DUFFEE-FREEMA,I,No. 1,36730,1
PartiesK. P. KNUDSEN, Jr.
Decision Date23 May 1957

Syllabus by the Court.

The trial judge erred in denying the motion for new trial.

Kenneth P. Knudsen, Jr., filed an action in Fulton Superior Court, against Duffee-Freeman, Inc. The petition alleged in substance; the defendant corporation was at all times mentioned in the petition the owner of the business building known as 843-845 Peachtree Street, N. E., Atlanta, Georgia; the defendant corporation leased to several tenants office space on the second floor of the business property; the means of access to the second floor is by an entrance directly on the street and is designated as 843 Peachtree Street, N. E.; the entrance way consists of two flights of stairs, the first flight leading from the street level, consisting of fifteen steps rising to a height of approximately nine feet four inches to a five feet deep landing; the second series of steps continue upward from the landing sixteen additional steps; there is provided on both the left and the right side of the stairway handrails located approximately two feet eight inches above the steps, there being two sets of handrails, one terminating at the end of the first flight and the other commencing at the ascent upon the second flight; defendant corporation retained control, supervision and qualified possession of the common stairway for the purpose of maintaining the said stairway for the use of the business tenants, their customers and invitees; on October 10, 1952, at approximately 4 p. m., petitioner as an invitee, in order to fulfill a previously made mutual business appointment with a tenant of one of the leased offices located on the second floor of the defendant's building, entered the stairway from the street for the purpose of ascending the stairway; petitioner reached the landing at the head of the first flight of stairs on the stairway and proceeded to walk up the second flight when he reached approximately the second step of the second flight; at this point of petitioner's ascent he observed a coat hanger attached to his trouser leg; petitioner stopped in order to remove the coat hanger and in so doing placed his hand on the right handrail in order to stabilize himself; when petitioner placed his hand on the handrail it immediately gave way and came loose from the wall, causing him to fall backward on the landing and to turn over and over down the first flight of fifteen steps to the ground floor; the section of the round wooden handrail on which petitioner placed his hand was approximately three feet in length and was completely detached, together with its metal wall bracket, from the wall, coming to rest on the ground floor where petitioner lay; petitioner is six feet one inch tall and weighed at the time of the fall approximately 214 pounds; during the fall petitioner violently struck his back and head against the edge of the steps and landing causing him serious and permanent injury; the three foot section of the round wooden handrail was not well secured, but was in a loose and dangerous condition, insufficient to provide support when used for support or balance; the three-foot section of the handrail was attached to the plaster wall by means of a metal wall bracket at the lower end, the wall bracket being loosely connected into the plaster wall by means of screws; the wall bracket was joined to the lower end of the wooden three-foot section of the handrail by two screws; at the upper end, the three-foot section of handrail shared the next wall bracket with the next length of handrail (approximately thirteen feet long) and the three-foot section was loosely joined to that common wall bracket by only one screw; the three-foot section of the handrail had been in a dangerously loose condition for a period exceeding one week prior to the time of petitioner's fall; the defendant through its janitor or other agents, whose responsibility it was to maintain the handrail on the stairway, could have by the simple method of placing the hand upon the three-foot section to test for stability of the same, have discovered the dangerous loose condition, and in the exercise of ordinary care to render the premises safe for invitees, such as the plaintiff, the defendant should have known of the condition by discovery and inspection and should have repaired it; that petitioner while in the process of ascending the stairway and in using the stairway and the handrails thereon for the specific purpose for which they had been provided by the defendant, had no warning or knowledge nor an appreciation of the risk involved in using the threefoot section of the handrail at the beginning of the second flight of steps and that upon touching the same for support it would become detached; that petitioner did not see the loose condition of the screws attaching the said three-foot section of the handrail inasmuch as the screws and the wall brackets on both ends of the handrail were on the underside of the handrail, being below the line of vision of petitioner while he was ascending the stairway, the handrail being of a height of approximately two feet eight inches above the step and petitioner being a man six feet one inch in height; that petitioner was removed by ambulance from the foot of the stairway and taken to the Crawford Long Hospital where he was confined for nineteen days; that as the result of the fall down said stairway, the blows resulting from striking the stairs, petitioner sustained serious and permanent injuries due to damage resulting from a head concussion, contusions of the spinal cord and soft tissues of the neck, upper and lower back and posterior chest. The plaintiff charges negligence to the defendant as follows: in that the defendant corporation failed under all of the circumstances alleged to exercise ordinary care to render the stairway, of which defendant had qualified possession and control, safe for business invitees such as petitioner by providing safe and well secured handrails thereon; in failing to inspect and discover the dangerous condition of the three-foot section of handrail and in failing to repair same; to make the use thereof safe for invitees, all of which in the exercise of ordinary care defendant was bound to do; in failing to warn invitees, such as petitioner, that the said three-foot section of the handrail was unsafe; in that the defendant, as owner of the building in control of and responsible for the maintenance of the stairway and handrails thereon, owed to petitioner, as an invitee, whose presence upon said stairway the defendant was bound to anticipate, a duty of not exposing petitioner to the dangerous and deceptive situation created by the said loose and insecure three-foot handrail, which condition the defendant in the exercise of ordinary care under the facts alleged should have known by inspection and discovery and which, in the exercise of ordinary care, should have been rendered safe for the use intended.

The defendant filed an answer in which it denied any negligence on the part of its agents or employees.

The case proceeded to trial. Both parties introduced evidence and the jury returned a verdict for the defendant.

The plaintiff filed a motion for new trial on both general and special grounds, but later abandoned the general grounds. The trial judge denied the motion, and the plaintiff excepted.

Johnson, Hatcher & Meyerson, Atlanta, for plaintiff in error.

Marvin G. Russell, Turner Paschal, and Welborn B. Cody, Atlanta, for defendant in error.


1. Special grounds 4 and 5 need not be passed upon. They relate to the foundation laid for the evidence we hold in the other divisions of this opinion to be inadmissible.

2. Ground 6 complains of the admission in evidence of a mass of documentary evidence, in which were contained impressions and conclusions of various parties as to the plaintiff's mental state and that he was a malingerer. These documents came into existence several years before the trial, and did not purport to convey any view or impression as to such matters at the time the plaintiff was alleged to have been negligently injured by the defendant.

Ground 7 complains of a letter dated October 3, 1938, written by one who purported to be a physician to the U. S. Employees' Compensation Commission. The letter contained a diagnosis of the plaintiff's mental condition as a malingerer. The letter was objected to on the ground: 'that the document had not been definitely authenticated by the custodian who brought the record into court in that it had not been shown that he had any knowledge of or that he had had any part in keeping of the records, the evidence showing simply that the witness had been employed during the period of time involved at Savannah, Georgia, and then in Jacksonville, Florida, and that the records came to him from Washington, and the first time he had ever seen them was when he received them from Washington.

The evidence was further objected to on the ground that it was hearsay, purporting to be a report of opinion evidence by a party who did not state that he himself had made any examination insofar as the patient was concerned but who merely reported a consolidated opinion and diagnosis of this particular party by other individuals, and the introduction of the evidence was an attempt to introduce opinion evidence when the person who expressed the supposedly expert opinion was not before the court for cross-examination.

The evidence was further objected to in that the purported report from the medical officer in charge had attached to his report a purported copy of an opinion by some party designating himself as an 'M.D.' without his name even being signed to the report, and the attached document being an opinion of Dr. Eric Oldberg was hearsay to Dr. Rose, the medical...

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