Speaks v. Rouse Co. of Georgia

• Decision Date: 05 September 1984
• Docket Number: No. 68657,68657
• Parties: SPEAKS v. ROUSE COMPANY OF GEORGIA.
• Court: Georgia Court of Appeals

Page 774

321 S.E.2d 774

172 Ga.App. 9

SPEAKS v. ROUSE COMPANY OF GEORGIA.

No. 68657.

Court of Appeals of Georgia.

Sept. 5, 1984.

C. Lawrence Jewett, Jr., Atlanta, for appellant.

William E. Zschunke, Wade K. Copeland, Atlanta, for appellee.

BIRDSONG, Judge.

Summary Judgment--Slip and Fall. The facts giving rise to this appeal show that the City of Atlanta suffered a major snow and ice storm in January 1982. Mrs. Irene Speaks lived in Decatur and because of the storm, was forced to remain in her home from the Tuesday of the storm until the next Sunday, when conditions had moderated sufficiently to allow her to travel from Decatur to Perimeter Mall, a distance of several miles.

Evidence developed during discovery indicated that on Sunday there was still snow and ice on the ground but that roads were substantially clear. Mrs. Speaks, with her husband, left her home in Decatur about 1:30 p.m. on Sunday afternoon with the temperature above freezing. They arrived at Perimeter Mall around 2:00 and parked in the parking lot. They noted the accumulated snow and ice about the parking area but the streets running through the parking area appeared to be free of ice and snow. However, the roads were wet from melting snow.

Mrs. Speaks acknowledged she was aware of the presence of unmelted snow and ice throughout the entire Atlanta area. She accordingly dressed warmly and wore shoes with rigid soles to give her better traction. Mrs. Speaks and her husband walked without mishap from their car across one of the thoroughfares leading through the parking lot, along a sidewalk and entered the shopping mall. She did not experience the presence of any snow or ice under foot during her walk, though the pavement on the roadway was noticeably wet.

The Speaks remained in the mall for approximately three hours, exiting about 5:00 p.m. At that time, it felt appreciably colder with the temperature being between 30 and 32 degrees. The Speaks returned to their car via the same door they had entered the mall and walked down the same sidewalk that apparently was clear of all snow and ice and was dry. They then walked across the thoroughfare at about the same angle they had traversed when walking to the mall. Mrs. Speaks once again noted that the street was wet from melting snow. What was not apparent was that the colder temperature had caused a thin film of ice to form. As she walked across the road on the way to her car, Mrs. Speaks slipped and fell sustaining injuries. She brought this complaint against The Rouse Company alleging negligence on their part in not putting sand or salt on the parking areas or alternatively removing the natural accumulation of snow and ice, or in not warning their invitees of the potential hazards from refreezing water.

After discovery, The Rouse Company moved for summary judgment arguing that Mrs. Speaks' knowledge was at least as great as appellee's and Mrs. Speaks had assumed the risk by traversing the roadway knowing that freezing could have occurred. The trial court granted summary judgment to The Rouse Company. It is that grant which forms the basis of this appeal. Held:

We start with the position that the snow and ice that was present on the parking area of Perimeter Center was the result of a natural accumulation and there is no affirmative evidence that the owners of Perimeter Center performed any act to make the presence of the ice or snow more dangerous than it was in its natural state of accumulation. There is no real dispute that Mrs. Speaks was aware of the presence of water and the fact that the water could freeze. It is clear also that she appreciated the fact that freezing temperatures probably had returned. Nor is there any real dispute that unless one scraped the surface, the black asphalt beneath the frozen water wholly masked the fact (to any casual observer) that ice had formed. It is not likely the presence of sand or salt would have...