Rogers v. Eckerd Drugs of Georgia, Inc., 57375

Decision Date03 May 1979
Docket NumberNo. 57375,57375
Citation149 Ga.App. 788,256 S.E.2d 130
CourtGeorgia Court of Appeals

Long & MacDowell, Nick Long, Jr., Fred MacDowell, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Clyde E. Rickard, III, Rosa Beatty Lord, Henning, Chambers & Mabry, Eugene P. Chambers, Jr., Atlanta, for appellees.

BANKE, Presiding Judge.

The appeal is from a verdict for the defendants, Eckerd Drugs of Georgia, Inc., and Rafael Benitez, d/b/a R. B. Maintenance, in a "slip and fall case." The complaint alleged that the plaintiff slipped on an accumulation of floor conditioner in one of Eckerd's stores, causing permanent injuries. Benitez is the owner of a service firm which is alleged to have been negligent in applying the conditioner, in failing to remove the excess properly, and in failing to post warning signs. Eckerd is alleged to have been negligent in failing to warn the plaintiff of the danger and in allowing the dangerous condition to remain.

The plaintiff testified that after he fell, with one of the store's employees about five feet from him, he observed that the floor had splotches and a muddled looking color. There was testimony concerning the manner in which the floor conditioner had been applied on the night before the incident by the defendant Benitez' custodial service. The jury returned a verdict for the defendants, and the plaintiff appeals the denial of his motion for new trial. Held :

1. The first two enumerations of error are directed towards the trial court's charge on defendant Eckerd's duty to protect its invitees against hazardous conditions existing on the premises. The plaintiff complains that the trial judge improperly charged the jury that in order to find for him they had to find that Eckerd had "actual notice" of the hazardous condition. However, the transcript shows that the court correctly charged that Eckerd could be held liable if it had either actual or constructive notice of the hazardous condition and failed to exercise ordinary care in remedying it. See Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 226 S.E.2d 142 (1976); Wootton v. City of Atlanta, 101 Ga.App. 779, 115 S.E.2d 396 (1960). These enumerations of error are without merit.

2. The plaintiff contends that the lower court erred in allowing defense counsel to cross examine him concerning previous accidents in which he had been involved. It is asserted that it was error to allow evidence about the injuries which he had sustained in the previous accidents without first establishing the degree and type of injury by expert testimony, and also that the "other transactions" rule (Code § 38-202) was violated. It is the general rule in tort injury cases that similar acts or omissions on different occasions are not admissible, Hawkins v. Benton Rapid Express, Inc., 82 Ga.App. 819, 62 S.E.2d 612 (1950), "unless the nature of the action . . . renders necessary or proper the investigation of such conduct." Code § 38-202. In this case the trial judge meticulously confined the limits of the cross examination to testimony relevant to damages, and properly instructed the jury as to the limited purpose for which the evidence was admitted. In any event, the verdict for the defendant renders harmless any possible error going only to the question of damages. Lewyn v. Morris, 135 Ga.App. 289, 217 S.E.2d 642 (1975).

3. The plaintiff complains that deposition statements of defendant Benitez, admitted only for the purpose of impeachment, were improperly ruled inadmissible as the basis for a hypothetical question for the plaintiff's expert witness. Facts used in the question must have evidentiary foundation at the time they are propounded, English v. Milby, 233 Ga. 7, 209 S.E.2d 603 (1974), and must be facts established in evidence. Norman v. Allen, 118 Ga.App. 394, 163 S.E.2d 859 (1968)....

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5 cases
  • Thomason v. Harper
    • United States
    • Georgia Court of Appeals
    • 15 Marzo 1982
    ...702(2), 168 S.E.2d 598 (1969); Ga. Power Co. v. Hubbard, 142 Ga.App. 531, 533(4), 236 S.E.2d 515 (1977). Rogers v. Eckerd Drugs of Ga., 149 Ga.App. 788(2), 256 S.E.2d 130 (1979). Accordingly, we find that the trial court did not abuse his discretion in denying appellant-Thomason's motion fo......
  • Ellis v. Sears Roebuck & Co.
    • United States
    • Georgia Court of Appeals
    • 4 Diciembre 1989
    ...exercise ordinary care either to correct the problem or to warn appellant of it. See generally OCGA § 51-3-1; Rogers v. Eckerd Drugs, 149 Ga.App. 788, 789(1), 256 S.E.2d 130 (1979). If the evidence showed only that the escalator had been malfunctioning for a ten-to-fifteen-minute period pri......
  • City of Monroe v. Jordan, s. A91A1096
    • United States
    • Georgia Court of Appeals
    • 27 Septiembre 1991
    ...evidence only on the issue of punitive damages, the defendants have failed to show they were harmed. Rogers v. Eckerd Drugs of Ga., 149 Ga.App. 788, 789, 256 S.E.2d 130 (1979). 3. In the fourth enumeration of error, defendants argue that by refusing to bifurcate the punitive damages claim f......
  • Verde v. Granary Enterprises
    • United States
    • Georgia Court of Appeals
    • 17 Abril 1986 at the time they are propounded, [cit.], and must be facts established in evidence. [Cit.]" Rogers v. Eckerd Drugs, 149 Ga.App. 788, 790, 256 S.E.2d 130 (1979). Under this standard, there was no error in sustaining appellees' objection to the deposition 9. There being no reversib......
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