Shackelford v. DeKalb Farmer's Market, Inc.

• Citation: 349 S.E.2d 241,180 Ga.App. 348
• Decision Date: 18 September 1986
• Docket Number: No. 72464,72464
• Parties: SHACKELFORD v. DeKALB FARMER'S MARKET, INC.
• Court: United States Court of Appeals (Georgia)

Page 241

349 S.E.2d 241

180 Ga.App. 348

SHACKELFORD v. DeKALB FARMER'S MARKET, INC.

No. 72464.

Court of Appeals of Georgia.

Sept. 18, 1986.

William F. Lozier, Atlanta, for appellant.

James C. Huckaby, Jr., David A. Handley, Jonathan D. Moonves, Atlanta, for appellee.

CARLEY, Judge.

Appellee-defendant operates a grocery business which appellant- plaintiff has often patronized. The central location for obtaining and returning the carts that appellee provided for its customers' use was an outside storage area. This cart storage area was located in the space between the entrance to appellee's facility and the separate exit therefrom. Customers obtained a cart upon entering and were asked, upon exiting, to return their carts to the designated outside storage area. This storage area was open at both ends where the carts were obtained and returned but the side which faced an adjacent driveway was delineated by a series of unpainted, concrete dividers or bumpers which were approximately 6 feet long, 8 inches wide and 4 inches tall. On the other side of the driveway was the parking area for appellee's customers.

On the day in question, it was raining when appellant finished her shopping at appellee's facility. Deciding that she would not need the cart to carry her purchases to her car, she exited the facility and returned the cart to the outside storage area. Holding her packages, appellant then began to walk toward the driveway, across which she would have to pass in order to reach the parking lot. She tripped and fell over one of the unpainted, concrete bumpers which formed the perimeter between the cart storage area and the driveway.

Appellant initiated the instant civil action against appellee to recover for the physical injuries that she sustained in the fall. In her deposition, appellant was asked if, on the day of her fall, she had seen "the bumper that [she] fell over before [she] fell...." Her answer was: "Well, it was raining and I put the cart back there; and I don't know that whether I saw that bumper there or not." (Emphasis supplied.) Later in her same deposition, appellant stated that "the reason, [she felt] sure" that she had fallen "on this particular occasion [was] it was raining, [and she was] looking for traffic." Based upon appellant's deposition, appellee moved for summary judgment. In opposition to appellee's motion, appellant filed her own affidavit. In her affidavit, she stated that, as the result of the rain, the concrete color of the bumpers "merged with the color of the pavement creating an optical illusion of oneness" and that she had been "apprehensive as to timing her effort to enter onto and cross the automobile corridor and she did not see the concrete divider which obstructed her way and she tripped over it and fell...." (Emphasis supplied.) The trial court conducted a hearing on appellee's motion and granted it. Appellant appeals from the grant of summary judgment in favor of appellee.

1. The decisive issues are: "(1) fault on the part of [appellee], and (2) ignorance of the danger on the part of the [appellant.] [Cit.]" Pound v. Augusta Nat., 158 Ga.App. 166, 168, 279 S.E.2d 342 (1981). With regard to the first issue: "The question is whether these dividers expose an invitee to a foreseeable unreasonable risk of harm under the totality of the circumstances in each particular case. In making this determination, the court must consider the utility of the dividers with respect to the type of construction, location, observability to invitees and the state of maintenance." Hollis v. First Nat. Bank, 117 Ga.App. 145, 147, 159 S.E.2d 497 (1968).

Construing the evidence most strongly in favor of appellant, a jury question remains as to whether it was an act of negligence on the part of appellee to use slightly elevated unpainted concrete bumpers, which when wet tended to merge visually with the surrounding pavement, not as dividers in a parking lot per se, but as an artificial perimeter between vehicular traffic on the driveway and pedestrian traffic in the cart storage area. See Hollis v. First Nat. Bank, supra; Smith v. Swann, 73 Ga.App. 144, 35 S.E.2d 787 (1945).

2. With regard to the issues of appellant's ignorance of the danger presented by the bumpers, "[t]he mere fact that [she] has been in the area before will not preclude [her] from recovery for injuries received from defective premises unless [her] failure to observe the defect amounts to a lack of that care which an ordinarily prudent person would exercise under the circumstances." Kreiss v. Allatoona Landing, 108 Ga.App. 427, 435(2b), 133 S.E.2d 602 (1963). Considering the changeable nature of the bumpers as regards their actual physical location, their potential for becoming a dangerous obstacle to pedestrians, and their visual observability, the mere fact that appellant may have shopped at appellee's facility on prior occasions does not necessarily preclude her from a recovery for her fall under the circumstances of this particular occasion. See Kreiss v. Allatoona Landing, supra. Compare Tanner v. Ayer, 150 Ga.App. 709, 258 S.E.2d 545 (1979). With reference to the day in question, there is no evidence that appellant had ever had prior occasion to step over the wet bumpers in the outside cart storage area where her subsequent fall actually took place. See Bell v. Abercorn Toyota, 175 Ga.App. 668, 333 S.E.2d 880 (1985). Compare Anderson v. Dunwoody North Driving Club, 176 Ga.App. 210, 335 S.E.2d 451 (1985); Purvis v. Holiday Hills, etc., Assoc., 163 Ga.App. 387, 294 S.E.2d 592 (1982); Pound v. Augusta Nat., supra. Moreover, the evidence does not negate the allegations of an optical illusion caused by the rain, so as to show that the unpainted wet bumpers were, as a matter of law, such a patent defect as appellant, in the exercise of ordinary care, should have observed. See generally Smith v. Swann, supra. Compare Jones v. Richardson, 178 Ga.App. 49, 342 S.E.2d 12 (1986) (concrete painted curb); McMullan v. Kroger Co., 84 Ga.App. 195, 65 S.E.2d 420 (1951) (no allegation of optical illusion).

Appellee nevertheless urges that, as a matter of law, appellant cannot recover because she cannot prove her ignorance of the existence of the bumpers on the day in question. " 'It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is...