Martin v. Dunwoody-Shallowford Partners, L.P., DUNWOODY-SHALLOWFORD
| Decision Date | 08 June 1995 |
| Docket Number | DUNWOODY-SHALLOWFORD,No. A95A0781,A95A0781 |
| Citation | 217 Ga.App. 559,458 S.E.2d 388 |
| Parties | MARTIN v.PARTNERS, L.P. |
| Court | Georgia Court of Appeals |
Fitzgerald & Schultz, Andrew H. Schultz, Anne E. Barnes, Atlanta, for appellant.
Thomas, Kennedy, Sampson & Patterson, Robert David Ware, Atlanta, for appellee.
James Martin appeals from the grant of summary judgment to appellee Dunwoody-Shallowford Partners, L.P., in this slip and fall case.
For the purposes of this appeal, we give Martin the benefit of every reasonable doubt in determining whether a triable issue of material fact remains. See, e.g., Green v. Johnston Realty, 212 Ga.App. 656, 657-658(1), 442 S.E.2d 843 (1994). Under this standard, we assume the following facts to be true.
Martin maintained an office on appellee's premises provided by one of appellee's tenants in exchange for Martin's consulting services. Prior to Martin's fall he had pulled into appellee's parking lot, exited his car, and walked approximately two steps toward the curb before stepping up onto the landscaped yard in front of 15 Dunwoody Park. Martin avers that as he walked inside, he did not see any ice on the yard or sidewalk.
Within a minute or so, Martin returned to his car, approaching it from the rear. He asserts that as he walked back to his car, he was watching where he was going but did not see any ice in the parking lot. Martin fell and was injured. He claims that he fell because a transparent sheet of ice he did not see covered the path he took to his car, that appellee's sprinkler system provided the water creating the hazard, and that appellee was made aware that its sprinklers were creating such a hazard prior to the date of Martin's fall.
1. As a preliminary matter, Martin contends appellee owed him a duty greater than that owed mere licensees to avoid causing "willful and wanton injury." OCGA § 51-3-2. We agree. As the business invitee of one of appellee's tenants, appellee owed Martin the duty of not exposing him Paul v. Sharpe, 181 Ga.App. 443, 444-445(1), 352 S.E.2d 626 (1987). We therefore need not consider whether the invitee-licensee distinction urged by appellee is even relevant given the nature of the hazard and the manner in which appellee allegedly created that hazard. In this regard, see Lipham v. Federated Dept. Stores, 263 Ga. 865, 866, 440 S.E.2d 193 (1994) ().
2. "In order to prevail on a motion for summary judgment ... a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence." (Citations and punctuation omitted.) Collier v. Evans, 199 Ga.App. 763, 766(5), 406 S.E.2d 90 (1991). Martin essentially contends appellee has failed to make a prima facie showing that it is entitled to summary judgment as a matter of law. We agree and reverse.
(a) Appellee suggests Martin's action must fail merely because he admits he never saw the ice he claims caused his fall. A witness confirmed, however, that ice had indeed formed in the location where he fell that morning, and appellee has failed to rebut Martin's contention with evidence demonstrating there was no ice present at the time of Martin's fall. The fact that Martin cannot personally confirm that he slipped on ice by no means constitutes conclusive evidence precluding that possibility, especially in light of other evidence presented on the issue. At the very least, a jury question remains on this issue.
(b) Appellee also attempts to rely on the rule that ...
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