Pembrook Management, Inc. v. Cossaboon, 60933

• Decision Date: 12 February 1981
• Docket Number: No. 60933,60933
• Citation: 157 Ga.App. 675,278 S.E.2d 100
• Parties: PEMBROOK MANAGEMENT, INC. et al. v. COSSABOON.
• Court: Georgia Court of Appeals

Page 100

278 S.E.2d 100

157 Ga.App. 675

PEMBROOK MANAGEMENT, INC. et al. v. COSSABOON.

No. 60933.

Court of Appeals of Georgia.

Feb. 12, 1981.

Rehearing Denied Feb. 26, 1981.

Certiorari Denied April 10, 1981.

Ronald A. Lowry, Eugene P. Chambers, Jr., Atlanta, for appellant.

Douglas T. Noonan, William L. Henderson, Atlanta, for appellee.

BIRDSONG, Judge.

Personal Injury--Tort Liability. Pembrook Management, Inc. is the managing agent for Corporate Property Investors who in turn are the fee owners of Lenox Square, an Atlanta shopping center. On October 22, 1978, the appellee Ms. Cossaboon rode her bicycle to work, a location directly across the street from an entrance to the shopping center. At about noon on that day, Ms. Cossaboon left her place of employment and entered the parking area of Lenox Square for the purpose of utilizing the facilities of a self-service branch bank, one of the shopping center tenants. She followed the normal traffic pattern to the bank, cashed a check and proceeded to make her exit from the shopping center by one of the normal exit routes. Her path of exit carried her over a drainage ditch covered by a cast iron grill which extended across the entire roadway. These grills had been in place since the opening of Lenox Square a number of years prior to 1978. The spaces between the grills ran in the same direction as the flow of traffic. Ms. Cossaboon had no recollection of her journey home, but eyewitnesses reported seeing Ms. Cossaboon riding her bicycle toward the grill and as the bicycle went over the grill area, apparently the front wheel dropped into the space between the grill bars, causing the bicycle to stop abruptly and pitching Ms. Cossaboon over the handlebars. She landed on her face, cracking twelve teeth, breaking one in half, fractured her nose, received a through and through cut in her lips from the teeth, deep rub abrasions on her face, and suffered a basilar skull fracture. After a jury trial, Ms. Cossaboon was awarded a $77,000 jury verdict which was made the judgment of the court. Appellants (Lenox Square's owner and manager) bring this appeal enumerating 21 alleged errors. Held :

1. In their first three enumerations, appellants raise the question of the sufficiency of the evidence upon the general grounds. The only real questions here presented go to whether there was sufficient evidence to show that Pembrook (as agent for the owners) routinely accepted bicycle riders on the premises as invitees, did not make any special provisions for their safety in traversing the several avenues of travel upon the areas surrounding the shopping center, was aware of the potential hazard to bicycle riders inherently presented by passage over the grill gaps, that the unsafe condition was the proximate cause of the injuries to Ms. Cossaboon, and that Ms. Cossaboon did not contribute to her own injuries by negligently failing to observe the danger to a bicycle rider when crossing over the grill. Our examination of the transcript reflects ample support for the jury's factual satisfaction from the evidentiary predicates for each of these considerations. In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence. Thompson v. Hill, 143 Ga.App. 272, 276, 238 S.E.2d 271. In this case, even though the findings of fact as contended by Pembrook would have been authorized by the evidence presented on the trial, the facts found by the jury were authorized by the evidence. Such findings will not be set aside on the general grounds. Williams v. Mathis, 237 Ga. 305, 306, 227 S.E.2d 378. The denial of a motion for directed verdict on the same ground (enumeration of error 4) must fail for the reasons above stated. Johnson v. Mann, 132 Ga.App. 169, 207 S.E.2d 663.

2. In enumerations 5 and 6, appellants (Pembrook and Corporate Investors) argue that the trial court erred in allowing Ms. Cossaboon to use a video deposition without first showing the non-availability of the witness. There was a dispute as to the interpretation of a stipulation concerning the use of the deposition, which the trial court could have resolved against appellants. However, the trial court based its ruling upon the determination that a doctor's occupation was such that it would work a manifest inconvenience to the public or third persons to require the doctor to attend in lieu of the use of the deposition. See Code Ann. § 81A-132(a)(4). Moreover, the trial court ruled that access to the witness would be required before the deposition could be used, a privilege not demanded by the appellants. The use of a deposition of a witness taken after notice to the opposite party and with counsel for both parties present lies within the sound discretion of the court. Ricketts v. Liberty Mut. Ins. Co., 127 Ga.App. 483, 486(5), 194 S.E.2d 311. This remains true even where the witness may be present in court. Darden v. Mayor &c. Washington, 35 Ga.App. 777(6), 134 S.E. 813. There was no error in the use of the deposition upon the basis stated.

A second facet of appellants' argument as to the use of this video deposition rests upon the appellants' contention that Ms. Cossaboon did not establish the identity or reliability of the equipment used. Pembrook did not make objection at trial to the use of the deposition on this ground and thus this presents nothing for this court to review. Redwing Carriers v. Knight, 143 Ga.App. 668, 671(3), 239 S.E.2d 686. These enumerations lack merit.

3. Enumerations of error 8, 9, 10, 11, and 20 all deal in substance with the admission of evidence dealing with a previous bicycle accident on or near the site and of the same general type as the one involving Ms. Cossaboon. Part of this objection concerns itself with the contention that the evidence ultimately and improperly points to the negligence of Pembrook and through Pembrook to Corporate Property Investors, the issue to be decided by the jury. We disagree. The evidence was not offered to show negligence on the part of Pembrook in maintaining the drainage grill over a long period of time. The evidence was offered to show that Pembrook had knowledge of what appeared to be a defect over a long period of time. It was for the jury to determine if that defect was the proximate cause of Ms. Cossaboon's injury; whether the defect constituted negligence at all and whether Ms. Cossaboon failed to exercise reasonable care for her own safety or was guilty of a degree of comparative negligence to preclude or reduce any recovery should the jury find negligence on the part of Pembrook. Where evidence of a prior similar accident tends to show condition and knowledge of that condition, the evidence is admissible. Bassham v. Diamond, 148 Ga.App. 620, 252 S.E.2d 23; City of Dublin v. Howell, 68 Ga.App. 463, 23 S.E.2d 177. All that is required is that the prior accident be sufficient to attract the owner's attention to the dangerous condition which resulted in the litigated accident. Wright v. Dilbeck, 122 Ga.App. 214, 216(4), 176 S.E.2d 715. This evidence falls within such a description.

Part of the objection to this evidence related to whether an agent did or could legally communicate evidence of a prior accident occurring under a prior owner to a new owner long after the accident occurred. This objection is rendered moot by the admission of the...