Pippins v. Breman

• Decision Date: 09 January 1980
• Docket Number: No. 58065,58065
• Citation: 262 S.E.2d 477,152 Ga.App. 226
• Court: Georgia Court of Appeals
• Parties: PIPPINS v. BREMAN et al.

Page 477

262 S.E.2d 477

152 Ga.App. 226

PIPPINS v. BREMAN et al.

No. 58065.

Court of Appeals of Georgia.

Argued July 9, 1979.

Decided Oct. 16, 1979.

Rehearing Denied Nov. 8, 1979.

Certiorari Denied Jan. 9, 1980.

F. David Grissett, Jay G. Davis, Bartow Cowden, III, Glen A. Garrett, Atlanta, for appellant.

Paul M. Hawkins, Howell Hollis, III, Atlanta, for appellees.

QUILLIAN, Presiding Judge.

We consider this appeal taken from the grant of defendant's motion for summary judgment. The plaintiff brought a complaint seeking recovery for personal injuries she sustained. The complaint alleged that defendants were owners of an office building with parking decks located in Fulton County; that connecting the parking decks and office buildings was an enclosed and improperly lit stairwell composed of several flights of smoothly finished steel-edged concrete steps; that while descending the steps on February 20, 1976 en route to the office in the building where she was then employed, the plaintiff slipped and fell on the steps which were at that time made more slippery than normal by an accumulation of water on the surface of the landing immediately above them. The complaint alleges the defendants as owners of the premises were negligent in the following respects: 1) in allowing the water to accumulate in the passageway creating a hazard; 2) in allowing the enclosed stairwell to be improperly lit thereby reducing the visibility; 3) in allowing the steps to have a smooth finish surface thereby reducing friction and increasing the likelihood of injury to pedestrians; 4) by failing to correct the aforesaid hazardous conditions; and 5) by failing to post signs or otherwise warn persons of the hazardous condition on their premises.

The defendant denied the material allegations of the plaintiff's complaint and after discovery moved for summary judgment. The primary proof considered by the trial judge on motion for summary judgment was the deposition of the plaintiff taken by the defendant. The plaintiff related that on the day in question she parked as usual on the second deck because that was her assigned area and that the only access to the building is through the stairwell, "back into a stairwell. You go down and then up into the building and get on the elevator and go to your floor." It had rained the day before and it rained in the stairwell. There was a big puddle of water there; when the plaintiff tried to step over it she slipped and fell.

The plaintiff further testified on deposition as follows: "A I think I parked on the second deck. You come in the door, and you are on a landing. You go down some stairs and you are on another landing, and you turn to go down these other stairs (indicating). Q Do you turn to your right? A To your left, and there's a rail there. And when I went downstairs to that second landing, that's where the puddle of water was. And when I say a puddle, well, it wasn't a little puddle, because I could have just stepped over that, which I thought I had. But my foot must have gotten in the water, because when I went to make this turn to go down these stairs, this right foot because I had on rubber-soled shoes touched the edge of the step and just went out from under me. I knew then that it was wet, because ordinarily rubber-soled shoes just will not do that . . . I had been going up and down those steps for over two years. And before I knew anything, there I was with this knee twisted and in a lot of pain. No one was there before me, because it was just before 8:00 o'clock in the morning." The plaintiff also testified that in trying to step over the water she had to make a "big step" and that her right foot hit the edge of the step which was metal, slipped and she then fell. Held :

On motion for summary judgment the defendant had the onerous burden of establishing that the plaintiff had no basis for recovery. In the case sub judice the plaintiff's testimony did not establish specifically that there was a defect on the stairwell causing the water to puddle. However, it did not reveal that there was no defect but was merely silent as to this matter. The fact that water did puddle on the stairwell when it rained would raise an inference that something was wrong. Nevertheless, since we are considering this case on motion for summary judgment the crucial issue is did the defendant establish as a matter of law that there was no defect. The answer is the defendant did not.

It is also urged that the trial judge was correct in granting the motion for summary judgment since the evidence shows that the plaintiff had used the stairs, the landing, and was familiar with the premises for a period of two years. The defendant therefore argues that the plaintiff assumed the risk and failed to exercise ordinary care for her own safety. Here the plaintiff testified that she knew the water puddled in the area when it rained. As the cases have pointed out "There is a difference between mere knowledge of a defect and full appreciation of the risk involved." Burns v. Great A & P Tea Co., 105 Ga.App. 823, 825, 125 S.E.2d 687, 689. Accord, Wasserman v. Southland Invest. Corp., 105 Ga.App. 420, 124 S.E.2d 674; Clayton v. Steve-Cathey, Inc., 105 Ga.App. 570, 573, 125 S.E.2d 118; Yale & Towne, Inc. v. Sharpe, 118 Ga.App. 480, 492, 164 S.E.2d 318. In the Burns, case, 105 Ga.App. 823, 825, 125 S.E.2d 687, 689, supra, the court pointed out "Although the deposition of the plaintiff showed that she was aware of the fact that the area on which she fell had just been mopped or waxed a few minutes prior to her fall, it was a question for the jury as to whether such knowledge constituted knowledge of the danger involved in walking on that area of the floor, and whether in walking on the floor with such knowledge, she was so negligent as to be barred of a recovery. Rothschild v. First Nat. Bank, 54 Ga.App. 486, 188 S.E. 301; Goldsmith v. Hazelwood, 93 Ga.App. 466, 92 S.E.2d 48; Netherland v. Pacific Employer's Ins. Co., 101 Ga.App. 837, 115 S.E.2d 122." The proof offered in this case failed to establish as a matter of law that the plaintiff could not recover because of her own negligence.

The trial judge erred granting the defendants' motion for summary judgment.

Judgment reversed.

McMURRAY, P. J., and SMITH, BANKE and UNDERWOOD, JJ., concur.

CARLEY, J., concurs specially.

DEEN, C. J., and SHULMAN and BIRDSONG, JJ., dissent.

CARLEY, Judge, concurring specially.

I concur in the reversal of the grant of defendant's motion for summary judgment and I agree with all that is said in the majority opinion. However, I feel compelled to concur specially so as to express my belief that Tanner v. Ayer, 150 Ga.App. 709, 258 S.E.2d 545 (1979) cited in Judge Birdsong's dissent is distinguishable from, and does not require affirmance of, the trial court's order in the case at bar. It is hoped that the explanatory verbiage of this special concurrence which otherwise appears...