McKinney & Co., Inc. v. Lawson
| Decision Date | 11 September 1986 |
| Docket Number | No. 72758,72758 |
| Citation | 180 Ga.App. 550,349 S.E.2d 763 |
| Parties | McKINNEY & COMPANY, INC. v. LAWSON. |
| Court | Georgia Court of Appeals |
David A. Handley, Hugh M. Worsham, Jr., Atlanta, for appellant.
James L. Ford, Charles H. Davis, Jr., Atlanta, for appellee.
Plaintiff Kathleen A. Lawson brought suit against McKinney & Co., Inc. ("McKinney"), Ricki L. Rainey and the City of Atlanta seeking damages resulting from injuries sustained in an automobile-pedestrian accident. McKinney was the general partner in a limited partnership which owned the MiCasa Apartments. At the time of the accident, plaintiff was walking on public property which was adjacent to the MiCasa Apartments. She stepped into the street to avoid a tree which obstructed her path. As she did so, plaintiff was struck by an automobile which was driven by Ms. Rainey. In her complaint, plaintiff alleged that her injuries were proximately caused by Ms. Rainey's negligent driving and the failure of McKinney and the city to maintain their premises in a safe condition.
Prior to the start of the trial, plaintiff dismissed her claim against the City of Atlanta. The case proceeded to be heard and the jury returned a verdict in favor of plaintiff and against McKinney in the amount of $350,000. The jury also found in favor of defendant Rainey. Judgment was entered upon the verdict and McKinney moved for judgment n.o.v. or, in the alternative, for a new trial. The motion was denied and McKinney appealed.
An examination of the record reveals that on the morning of July 21, 1982, plaintiff was walking to work just as she had done every day for the previous 10 months. Her established route took her west on Collier Road from the east side of Seaboard Place to DeFoor Hills Road.
Collier Road was heavily travelled, especially in the morning hours. There was a sidewalk on the north side of Collier Road along a portion of plaintiff's route; there was no sidewalk on the south side of the road. Nevertheless, plaintiff walked along the south side of Collier Road facing traffic. After she crossed Seaboard Place, plaintiff walked in the gutter of the street (the gutter was made of concrete and was about two feet wide) until she came to a grassy area which bordered the MiCasa Apartments. The grassy area was a 13-foot strip of land which extended from Collier Road to the boundary of the land upon which the MiCasa Apartments sat.
As she walked along the grassy area, plaintiff approached a tree which was growing on the property of the MiCasa Apartments. The tree stood in a place where the road curved. The limbs of the tree were very thick and low to the ground; they stretched across the grassy area and extended three or four feet into the road. To surmount this obstacle, plaintiff stepped into the gutter and stood near the tree for a minute to listen for traffic. When she thought the way was clear, plaintiff rounded the tree and was struck by the automobile driven by Ms. Rainey. Plaintiff's knee was severely damaged and surgery was required. Held:
1. This case involves a negligence claim against a landowner occupying land immediately adjacent to a public way. Accordingly, it "does not turn on the issue of a landowner's liability to invitees, licensees or trespassers who go upon his property and are injured there." International Paper Realty Co. v. Bethune, 256 Ga. 54, 56, 344 S.E.2d 228, aff'd 177 Ga.App. 330, 339 S.E.2d 296. Rather, the question for decision is whether the landowner negligently maintained its property in such a way as to render it liable to a person who, like plaintiff, is injured as a result thereof when he is rightfully at or near the property on a public street, sidewalk, or highway. Id.
Recognizing that the issue of its negligence was a question for the jury, McKinney contends the trial court erred in failing to grant its motion for a directed verdict on the ground that plaintiff's injuries were caused by a lack of care for her own safety. In this regard, McKinney points out that plaintiff was fully aware of the danger created by the overgrown tree having walked along Collier Road many times before; that plaintiff could have walked along the north side of Collier Road (the route she took on her way home from work) where there was a sidewalk for a part of the way; that nevertheless plaintiff walked on the south side of Collier Road and carelessly stepped into the street when she encountered the tree. We disagree.
Before a trial court is authorized to direct a verdict in favor of one party and against another, the evidence must demand the verdict. Where there is any conflict in material evidence, the trial court does not err by refusing to direct a verdict. Weatherspoon v. K-Mart, 149 Ga.App. 424, 427(3), 254 S.E.2d 418. The evidence in the case sub judice did not demonstrate that plaintiff was at fault as a matter of law. True, plaintiff was cognizant of the danger which the tree presented. However, the evidence authorized the jury to conclude that plaintiff took the safest possible route to work under the circumstances. Although there was a sidewalk on the north side of Collier Road (it began about 30 feet after the road began to curve), plaintiff was unable to cross the street safely to get to it. Why? Because there was no crosswalk between plaintiff's apartment and the north side of Collier Road until one reached DeFoors Ferry, a point well past the tree. Moreover, contrary to McKinney's contention, plaintiff could not have safely traversed Collier Road at Seaboard Place. That intersection was located at the bottom of a hill and plaintiff could not see cars approaching the intersection from the west. Finally, the evidence showed plaintiff went around the tree cautiously after satisfying herself that no vehicles were approaching.
"Questions necessitating a decision as to whether a given state of facts shows that lack of ordinary care for one's own safety which will bar recovery (within which category are placed those situations amounting to the assumption of the risk involved) or only that comparative negligence which will reduce it are generally for the jury." Stukes v. Trowell, 119 Ga.App. 651, 168 S.E.2d 616. Given the facts set forth above, we think the jury was authorized to conclude that plaintiff acted reasonably under all of ...
To continue reading
Request your trial
-
City of Fairburn v. Cook
...Co. v. May, 70 Ga.App. 613, 29 S.E.2d 187 (1944) (truck illegally parked obscured the view of intersection); McKinney & Co. v. Lawson, 180 Ga.App. 550, 349 S.E.2d 763 (1986) (overgrown tree obstructed public pathway); Pollard v. Cartwright, 60 Ga.App. 630, 4 S.E.2d 693 (1939) and Callaway v......
-
Cox v. Cantrell
...and saw the witnesses." Southern R. Co. v. Oliver, 177 Ga.App. 729, 733-34(5), 341 S.E.2d 270 (1986). Accord McKinney & Co. v. Lawson, 180 Ga.App. 550(3), 349 S.E.2d 763 (1986); Walkley v. Dukes, 175 Ga.App. 820, 334 S.E.2d 868 (1985). We find no grounds for Judgment affirmed. BIRDSONG, C.J......
-
Rosequist v. Pratt
...as negligence, ordinary care, comparative negligence, and assumption of risk are to be resolved by the jury. McKinney & Co. v. Lawson, 180 Ga.App. 550, 551 (349 SE2d 763) (1986); Eyster v. Borg-Warner, 131 Ga.App. 702 (206 SE2d 668) (1974). It is also the jury which assesses the credibility......
-
McKinney & Co., Inc. v. Lawson
...a verdict in favor of Lawson in the amount of $350,000.00. The Court of Appeals affirmed the trial court, McKinney & Co., Inc. v. Lawson, 180 Ga.App. 550, 349 S.E.2d 763 (1986). We granted certiorari to determine whether the landowner's liability was governed by our holding in International......