Scheer v. Cliatt, 49946

• Decision Date: 07 January 1975
• Docket Number: No. 49946,No. 2,49946,2
• Citation: 133 Ga.App. 702,212 S.E.2d 29
• Parties: Norma SCHEER v. W. L. CLIATT et al
• Court: Georgia Court of Appeals

Page 29

212 S.E.2d 29

133 Ga.App. 702

Norma SCHEER v. W. L. CLIATT et al.

No. 49946.

Court of Appeals of Georgia, Division No. 2.

Jan. 7, 1975.

Elkins, Flournoy & Garner, Thomas M. Flournoy, Jr., Columbus, for appellant.

Henson, Waldrep & Williams, Joseph L. Waldrep, Columbus, for appellees.

Syllabus Opinion by the Court

MARSHALL, Judge.

Summary judgment was granted to the defendant, Charles Fairbanks d/b/a Tom's Barber Shop, in a 'slip and fall' action, and plaintiff appeals. In her complaint and affidavit in opposition of the motion for summary judgment, the plaintiff contends: that Fairbanks was the owner and operator of a barber shop which abutted a sidewalk on which the plaintiff slipped and fell; that she was walking on an approach to the barber shop when she stepped on a slippery foreign substance; that immediately after her fall she was told by a barber, who 'was in the employ' of Fairbanks that he (the barber) had seen some liquid detergent someone had spilled on the sidewalk before the plaintiff fell and that he (the barber) had tried to clean it up; that instead, his attempt left a thin film of soap on the sidewalk, invisible to her, which created the dangerous condition causing her injury.

Fairbanks moved for summary judgment on the strength of his affidavit which stated: that he never owned, occupied or operated the barber shop in question nor any of its equipment; that his only interest therein was assisting in the payment of bills and taxes, obtaining business licenses, and seeing to it that a note on which he was the co-signee and which was secured by the barber shop equipment, was paid out of proceeds from the barber shop's business; that he had no notice at any time that the sidewalk in front of the barber shop was unsafe, and that the space rented by the barber shop from the owner of the shopping center did not include the sidewalk or space around the barber shop.

The only other evidence of record consists of business licenses in the name of Charles Fairbanks and Tom's Barber Shop, a Certificate of Occupancy in the name of Charles Fairbanks and records from the Revenue Collection Division of Muscogee County showing taxes collected for the premises under the name 'Tom's Barber Shop/Charles Fairbanks.'

Plaintiff asserts her right to recover under three theories: (1) As the 'owner or occupier of land' under Code § 105-401 'by (Fairbanks) failure to exercise ordinary care in keeping the premises and approaches safe'; (2) As the master of a servant who 'creates or maintains the thing from which the injury results' on property abutting a sidewalk by making the soap spill invisible, Reed v. Batson-Cook Co., 122 Ga.App. 803, 178 S.E.2d 728; Kelisen v. Savannah Theatres Co., 61 Ga.App. 100, 5 S.E.2d 712; and (3) As the master of a servant who was negligent by failing to properly clean up the soap spill, once having undertaken to do so. Held:

1. '(F)or a defendant to prevail as the movant for a summary judgment the undisputed facts as disclosed by the pleadings and proof must negate some essential element of the plaintiff's claim, thereby entitling the defendant to judgment as a matter of law. (Cits.)' American Plan Corp. v. Beckham, 125 Ga.App. 416(1), 188 S.E.2d 151; Waldrep v. Goodwin, 230 Ga. 1(1), 195 S.E.2d 432. The burden was on the defendant-movant herein to show conclusively that plaintiff had no right to recover under any theory fairly drawn from the pleadings and the evidence. Chastain v. Atlanta Gas Light Co., 122 Ga.App. 90, 91, 176 S.E.2d 487; Werbin & Tenenbaum, Inc. v. Heard, 121 Ga.App. 147(2), 173 S.E.2d 114.

2. The defendant, Fairbanks, has not pierced the pleadings for, after all the pleadings and evidence are considered, there remain questions of material fact.

(a) As to plaintiff's right of recovery under Code § 105-401, there remains the question of whether or not Fairbanks was the 'owner or...