Martin v. Bank South, 69961

• Decision Date: 21 May 1985
• Docket Number: No. 69961,69961
• Citation: 333 S.E.2d 616,175 Ga.App. 422
• Parties: MARTIN v. BANK SOUTH.
• Court: Georgia Court of Appeals

Page 616

333 S.E.2d 616

175 Ga.App. 422

MARTIN v. BANK SOUTH.

No. 69961.

Court of Appeals of Georgia.

May 21, 1985.

Rehearing Denied July 11, 1985.

Douglas L. Breault, Columbus, for appellant.

Jerry A. Buchanan, Joseph L. Waldrep, Columbus, for appellee.

POPE, Judge.

Appellant Ursula Martin went to appellee Bank South on November 16, 1983 to do some banking. At the time she arrived, the lobby of the bank was closed; however, one could transact business at either the "walk-in window" or the "drive-in window." As Martin approached the rear door of the bank lobby, a bank employee saw her and told her that the lobby was closed and that she would need to go around to the front to the "walk-in window." As Martin proceeded around to the front, she passed through an opening in a guardrail next to the "drive-in window" lane. There was a curb adjacent to the lane. When Martin stepped from the curb onto the lane, she fell and broke her hip. The trial court granted summary judgment to Bank South and Martin now appeals. Held:

Martin argues that issues of fact remain for jury determination in this slip-and-fall case. The contention is that the bank negligently created a hazardous situation by a combination of closing the bank lobby during certain hours, thus requiring customers to make their way to the front without providing a safe path to do so, and negligently leaving gaps in the guardrail through which customers could pass.

In order for Martin to recover, two elements must exist: (1) fault on the part of Bank South and (2) ignorance of the danger by Martin. Moss v. Atlanta Housing Auth., 160 Ga.App. 555, 287 S.E.2d 619 (1981). " 'The basis of the proprietor's liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.' [Cit.] Thus we can characterize the rule in relation to a 'static condition' as being that the basis of liability of an owner to an invitee who is injured is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury. [Cit.]" Inglett v. Winn-Dixie, etc., 168 Ga.App. 192, 194, 308 S.E.2d 587 (1983).

The only evidence presented by Martin regarding her fall is that she approached the gap in the guardrail knowing of the existence of the curb. She testified that she was watching the traffic in the drive-in lanes and then simply fell. She has no recollection of why she fell. The evidence presented by the bank shows that the curb from which Martin fell is of ordinary configuration and construction. As was stated by the Supreme Court in Alterman Foods v. Ligon, 246 Ga. 620, 624, 272 S.E.2d 327 (1980): "To presume that because a customer falls ... that the proprietor has somehow been negligent would make the proprietor an insurer of his customer's safety which he is not in this state. [Cits.] 'What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the [premises] safe as a good business man is in such matters accustomed to use.' [Cits.]" We find no evidence that the construction or design of the curb or guardrail is defective. We are not persuaded by Martin's argument that this case is controlled by the holding in the case of Robinson v. Western Intl. Hotels Co., 170 Ga.App. 812, 318 S.E.2d 235 (1984). In Robinson, where the court found evidence of a design...