Kreiss v. Allatoona Landing, Inc., 40055

• Decision Date: 12 September 1963
• Docket Number: 3,2,Nos. 1,No. 40055,40055,s. 1
• Citation: 133 S.E.2d 602,108 Ga.App. 427,22 A.L.R.3d 579
• Parties: , 22 A.L.R.3d 579 Pauline M. KREISS v. ALLATOONA LANDING, INC
• Court: Georgia Court of Appeals

Page 602

133 S.E.2d 602

108 Ga.App. 427, 22 A.L.R.3d 579

Pauline M. KREISS v. ALLATOONA LANDING, INC.

No. 40055.

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

Sept. 12, 1963.

Rehearing Denied Oct. 8, 1963.

Syllabus by the Court

1. The owner of marina who maintains land and dock facilities and rents mooring space abutting the docks to members of the public may be liable as an owner of land to the wife of a lessee of such mooring space for a defect in the dock consisting of an open space between a walkway and a catwalk which occasions a fall and injuries to the plaintiff invitee.

2. It is error to grant a motion for summary judgment where the pleadings and supporting depositions and affidavit leave in the case a genuine issue of fact as to the plaintiff's contributory negligence. Neither the fact that the defendant had removed the lights from the area where the injury occurred, so as to necessitate the plaintiff's returning to her boat over a part of the dock area in darkness, nor the fact that the plaintiff had previously traversed the dock during the afternoon but failed to notice the defect which caused her injuries, under the facts of this case, amounts to such lack of care for her own safety as to bar her recovery as a matter of law.

Mrs. Pauline M. Kreiss filed an action for damages in the Superior Court of Fulton County for injuries sustained when she stepped and fell in darkness or semi-darkness into a four-inch crack created by the defendant on a dock at its marina at Lake Allatoona when, due to repairs, it had failed to join a section of dock area seven feet in width plumb with a section of 'catwalk' dock area 42 inches in width at a point where it was necessary for the plaintiff, after proceeding out the main dock a distance of about 200 feet from the shore, to make a right turn onto a section of dock leading to the covered shed rented from defendant where her husband's boat was moored and where it was necessary for them to spend the night. The defendant's motion for summary judgment was granted and the exception is to this ruling.

The evidence before the court consisted of the affidavit of the plaintiff's husband, the depositions of the plaintiff taken on cross examination, and the depositions of the manager of the defendant corporation. From these the following facts appear without dispute: Plaintiff's husband was a tenant of the defendant, which leased him the mooring facilities and provided means of ingress and egress by floating docks from the boat, equipped with overnight sleeping accommodations, to the shore. The plaintiff and her husband used these facilities almost every weekend during the summer months and were very familiar with the layout prior to the temporary repairs in progress on the weekend in question. They had been notified by letter that modernizations of the dock area would be undertaken at some future time, but not when such changes might be initiated, and had no actual knowledge when they arrived that the repairs would be in progress at that time. At the time they rented the dock space and at all times thereafter the docks were provided with lights by means of 60 watt light bulbs spaced along the area, but on the night in question the lights had been disconnected from the area where the repairs were in progress and there was also a light bulb burned out farther along the dock, so that the particular place where the plaintiff fell was in darkness, although there were lights nearer the shore. The dock at all previous times had been in the shape of a 'T'. The stem of the 'T' was about 200 feet long, seven feet wide, and flanked by 42 inch catwalks dividing open boat slips, the slips themselves being 8 to 11 feet wide along the sides of the dock. At the end of the 'T' similar seven foot dock strips, attached by eyebolts, ran out laterally to the right and left and were flanked by covered dock sheds, plaintiff's dock shed being to the right as one approached from the shore. At the angle formed by the body and right arm of the 'T' there had been an apron or flange rounding out the angle between the walkways so that persons turning to the right could round the corner conveniently.

The changes which were in progress at the time of plaintiff's injury consisted in detaching the left arm of the 'T' and moving it at a right angle to form a prolongation of the main dock or body of the 'T', leaving the right arm as it was, with three exceptions. The seven foot dock strip forming this segment had been detached and instead of the eyebolts being replaced it was fastened rigidly to the body of the 'T' by two 16 foot planks. This fact appears to be of no significance. Secondly, in the rearrangement the right dock arm was thrown parallel and close to one of the 42-inch catwalks, so that the two together formed one walking surface to a person making a right turn to the boat sheds, except that there was a four-inch crack between the seven foot walkway and the 42 inch-walkway for the entire length of the latter. This crack was spatially at a point where the apron or flange had originally protected the right turn on the seven-foot walkway, and the plaintiff, when she turned to the right, thought she was upon this apron, but was in fact upon the catwalk. She had no knowledge of the crack separating the two structures and her foot and leg fell into the hole and threw her down, causing severe physical injuries. As the plaintiff's husband deposed: 'The hole created by this new construction had resulted from the insertion of the catwalk into the open slip area and the catwalk not being wide enough to fill the entire open slip area.' Defendant's manager testified: 'The catwalk did not fit the well. It just happened to end up in that particular, I mean just happened to fit that way then. We didn't design it that way. I mean we let it fall where it would. There was about a 4-inch crack there. Before, there had been a well there which was a 10-foot crack there if you want to put it * * *'

The plaintiff and her husband went to their boat at about 2:30 on a Saturday afternoon. No work was in progress over the weekend. The plaintiff noticed repairs were being made, and particularly noticed that the left arm of the 'T' had been removed on the far side and commented to her husband that that was dangerous because people who did not know might just walk off the dock. She apparently did not walk over the near side at that time, and did not notice that the catwalk had been inserted next to the right arm of the dock so as to leave a four-inch crack. Respecting this, she testified: 'I had not seen it. I did not notice it. If I had, I would not have walked that way. You don't notice every little detail when there are so many changes made.' Later in the afternoon, again in full daylight, they returned to shore where they had dinner with friends and spent the evening. When they attempted to return to the boat at about 11:30 p. m. the plaintiff testified that it was very dark, that she recalled no overhead lights, that there was a light farther on where somebody was fishing. Defendant's manager testified that there are light every 16 feet along the dock but on this particular night 'we had part of the lights on and part of them were off. I couldn't tell you at all which of the lights were on and which were off. Some of them were off. * * * My wife mentioned that it was a dark area there.' The defendant in error contends in support of its motion for summary judgment that it was guilty of no negligence, and that the plaintiff's injuries were due entirely to her lack of ordinary care for her own safety (a) in not seeing the defect in the walkway earlier in the day and thereafter avoiding it, and (b) in walking into an unlighted area and thus as a matter of law assuming the risk of danger which might exist there.

The trial court granted the defendant's motion for summary judgment, and the exception is to this ruling.

Richardson & Chenggis, George G. Chenggis, Chamblee, for plaintiff in error.

Hure, Baird & Peek, Chas D. Hurt, J. Corbett Peck, Jr., Benj, B. Blackburn, III, Atlanta, for defendant in error.

RUSSELL, Judge.

1. 'Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.' Code § 105-401. This Code section may have application in a landlord-tenant situation where the landlord does not fully part with the right of possession. Augusta-Aiken Ry. & Electric Corp. v. Hafer, 21 Ga.App. 246(1), 94 S.E. 252. The plaintiff was an invitee on facilities provided by the defendant as a means of egress and ingress between the shore and the rented dock slips where boats were moored. From the pleadings, depositions, and affidavit, it appears that the plaintiff was injured because in the course of its repairs and renovations of these docks the defendant lined up a main floating dock with an auxiliary catwalk 42 inches wide, leaving a 4-inch space between the two, at a point where there had previously been an apron rounding out the angle of two intersecting dock areas, and had also disconnected the lights from this portion of the dock so that persons walking on the area at night would not be on notice, so far as appears from the facts stated here, of any difference between the structures. One maintaining a defective footway, walkway, or excavation on the premises through which another falls may be held guilty of actionable negligence unless it appears for other reasons that the plaintiff cannot recover. Southern Ry. Co. v. Howard, 9 Ga.App. 264, 70 S.E. 1124; Central of Georgia Ry. Co. v. Ledbetter, 46 Ga.App. 500, 168 S.E. 81; Gray v. Watson, 54 Ga.App. 885, 189 S.E. 616; Atlanta Life Ins. Co. v. Rogers, 57 Ga.App. 785, 196 S.E. 239. The facts set out present a jury question...