S. H. Kress & Co. v. Flanigan, 38701
| Decision Date | 09 March 1961 |
| Docket Number | No. 1,No. 38701,38701,1 |
| Parties | S. H. KRESS & COMPANY v. Mrs. Effie B. FLANIGAN |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The petition set forth a cause of action and the trial court did not err in overruling the general demurrers.
Mrs. Effie Baker Flanigan sued S. H. Kress & Co. to recover for injuries allegedly sustained when she fell while walking down a flight of stairs in a store operated by the defendant. It was alleged that there was a foreign substance on the stairs which caused the plaintiff to fall. The defendant demurred to the plaintiff's petition, and after a series of amendments and renewed demurrers, the trial court overruled the defendant's general demurrers as well as several special demurrers. The defendant assigns error on the judgment adverse to it and contends that the plaintiff's petition is fatally defective for two reasons: 1. It fails to allege actionable negligence on the part of the defendant, and 2, because the petition shows on its face that the plaintiff was failing to exercise ordinary care for her own safety.
Hurt, Gaines, Baird, Peek & Peabody, Joe C. Freeman, Jr., Atlanta, for plaintiff in error.
William C. Rimmer, Jr., Woodrow Tucker, Atlanta, for defendant in error.
1. In support of its first contention, that the petition fails to allege actionable negligence, the defendant cites Jones v. West End Theatre Co., 94 Ga.App. 299, 303, 94 S.E.2d 135, where it was held that an allegation that a defective condition had existed for a period of ten minutes was insufficient to authorize a recovery where only implied knowledge of such defect was alleged. In that case it was alleged that the defective condition had existed for 'ten or fifteen minutes' and while in the present case there is no allegation as to the length of time (in minutes, hours or days), that the condition existed, the plaintiff's case is based on the opportunity that the defendant had to discover and rectify such defect.
Where the action of an invitee is based on an alleged defect which would be actionable if created by the defendant and a constructive or implied knowledge only is alleged the question presented, on demurrer, is whether the facts alleged, if proved, would authorize a jury to determine that the defendant was negligent in not discovering such defect. If the allegations show that the defendant had the opportunity to discover the defect a jury question is presented. See Henderson v. Nolting First Mortgage Corp., 184 Ga. 724, 735, 193 S.E. 347, 114 A.L.R. 1022, and citations.
The petition as finally amended alleged, with reference to the defendant's opportunity to have discovered such defective condition, that: ...
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...226 S.E.2d 142 (1976); Sharpton v. Great A & P Tea Co., 112 Ga.App. 283, 285-286, 145 S.E.2d 101 (1965); S.H. Kress & Co. v. Flanigan, 103 Ga.App. 301, 303(1), 119 S.E.2d 32 (1961). Here, the evidence gives rise to the inference of constructive knowledge by the presence of the employees at ......
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...set forth this standard). Winn-Dixie Stores v. Hardy, supra, based its constructive knowledge standard upon S.H. Kress & Co. v. Flanigan, 103 Ga.App. 301, 303, 119 S.E.2d 32 (1961), where the employee was six feet away, and Sharpton v. Great A. & P. Tea Co., 112 Ga.App. 283, 145 S.E.2d 101 ......
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