Lee v. Myers
| Decision Date | 18 October 1988 |
| Docket Number | No. 77077,77077 |
| Citation | 374 S.E.2d 797,189 Ga.App. 87 |
| Parties | LEE v. MYERS. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Atty. Gen., H. Perry Michael, First Asst. Atty. Gen., Patricia T. Barmeyer, Sr. Asst. Atty. Gen., Gordon R. Alphonso, Asst. Atty. Gen., Barbara H. Gallo, Staff Asst. Atty. Gen., for appellant.
Oates, Byars & Hollington, Samuel W. Oates, Jr., Columbus, for appellee.
We granted defendant Lee interlocutory appeal from the denial of his motion for summary judgment. The suit was brought by Myers for personal injuries she sustained when she fell on a set of metal steps at the Columbus Farmers' Market, then managed by Lee, an employee of the Georgia Department of Agriculture.
The evidence construed most favorably for plaintiff Myers, Blount v. Seckinger Realty Co., 167 Ga.App. 778, 779(1), 307 S.E.2d 683 (1983), showed the following. One Saturday evening, Myers was visiting the home of her friend Mrs. Watford. Mrs. Watford's husband was an owner and operator of Bi-City Produce Company, a produce business located in the wholesale section of the Columbus Farmers' Market. The business was primarily a wholesale one but on occasion the public was permitted to make purchases, and on occasion the business solicited the public by mail.
Myers told Mr. Watford she wanted to buy some produce but did not want to wait until the market's regular operating hours. Watford agreed to allow Myers to accompany his wife and granddaughter to the market, where he was going that night to do paperwork.
After arriving at the market, Myers ascended a set of metal steps located at one end of the loading dock. She noticed that the steps were "wobbly," "not sturdy," "unbalanced." The area was well lit and Myers could see clearly, but she did not notice that the steps were not anchored to the loading dock. She said she "paid no attention" to whether they were anchored down. The steps were not the only means of ingress and egress.
After purchasing several bags of produce, Myers proceeded to leave with Mrs. Watford and her granddaughter. Mrs. Watford and the granddaughter stepped off the front of the loading dock onto the ground. Myers chose to descend the same metal steps she had come up. As she approached the steps, she looked to take the handrail to go down. As she had one foot still on the concrete loading dock, she put her other foot on the top step and tried to take hold of the handrail when the steps suddenly moved forward and out from the concrete dock. She lost her balance and fell.
There was no evidence of any such prior mishaps with use of the steps.
Myers sued Bi-City Produce, Lee, and John Doe. She alleged it was defendants' duty 1) to exercise ordinary care and diligence to design, build, keep and maintain the steps in a condition reasonably safe for their intended uses and free from all defects and conditions which would render them dangerous and unsafe or present an unreasonable risk of harm in her lawful and reasonable use of them; 2) to exercise reasonable care to protect her, by inspection and other affirmative acts, from the danger of reasonably foreseeable injury occurring from reasonably foreseeable uses of the steps; 3) to use reasonable care in the design, construction, and maintenance of the steps in a manner consistent with and in conformity with recognized standards of step construction, design and safety. She further alleged that 1) defendants had actual or constructive knowledge of the defective condition of the steps and breached their duty to warn her of the dangerous and unsafe conditions existing on the steps; 2) the fall and resulting injuries to her were proximately caused by the defendants' negligence in the particulars aforesaid.
Lee answered the complaint and filed a third-party complaint against the designer and manufacturer of the steps. He contends that the court erred in denying him summary judgment by declining to find as a matter of law that 1) Myers was a mere licensee at the time of the fall and 2) that he had breached no duty to Myers.
1. Appellant argues that Myers was a licensee at the time of the incident because she was on the premises after hours and by permission, so he is not liable because his conduct was neither wilful nor wanton.
' ' Burkhead v. American Legion, Post 51, 175 Ga.App. 56, 332 S.E.2d 311 (1985). See also, Frankel v. Antman, 157 Ga.App. 26, 27, 276 S.E.2d 87 (1981).
Under such test, Myers was an invitee....
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