Stenhouse v. Winn Dixie Stores, Inc.

• Decision Date: 12 October 1978
• Docket Number: No. 56048,56048
• Citation: 249 S.E.2d 276,147 Ga.App. 473
• Parties: STENHOUSE v. WINN DIXIE STORES, INC.
• Court: Georgia Court of Appeals

Page 276

249 S.E.2d 276

147 Ga.App. 473

STENHOUSE v. WINN DIXIE STORES, INC.

No. 56048.

Court of Appeals of Georgia.

Argued June 8, 1978.

Decided Sept. 11, 1978.

Rehearing Denied Oct. 12, 1978.

Howard, Gilliland & Van Houten, T. Cole Van Houten, Decatur, for appellant.

Swift, Currie, McGhee & Hiers, W. Wray Eckl, Steven A. Miller, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

The plaintiff brought an action for damages resulting from injuries she received when she tripped over a pole in defendant's store. The defendant moved for summary judgment in its favor, which motion was granted. This appeal followed.

The complaint alleged that the defendant corporation operates a grocery store and solicits patronage for the purchase of food products; that the plaintiff was an invitee on the premises. The defendant was alleged to be negligent in the following particulars: that the defendant had a duty under Code § 105-401 to exercise ordinary care in keeping the premises and approaches safe for the protection of its invitees; that the defendant breached this duty by permanently affixing a metal pole approximately 21/4 inches in diameter and 281/2 inches high at the corner of its frozen food counter; that the defendant knew, or should have known, that the metal pole was 51/2 inches shorter than the frozen food counter and was dangerous in that it was concealed from an invitee's view when shopping along the counter; that the defendant maintained the frozen food counter and placed food products therein to induce invitees to look into the counter as they walked along the corridor and that the defendant knew, or should have known, that an invitee's attention would be distracted by the products displayed. It was further alleged that defendant should have apprehended that the placement of the pole would probably, according to ordinary and usual experience, cause injury; that the plaintiff was shopping along the frozen food counter, looking at and having her attention absorbed in the products displayed and was thus distracted from the floor in front of her as she walked, when her foot struck the metal pole and she was thrown violently to the floor and injured.

The defendant, on motion for summary judgment, introduced photographs which showed the pole was not in any way concealed but was located at the corner of the frozen food compartment and within inches of it. The pole was, as described in the complaint, approximately 5 inches below the top of the frozen food compartment. The plaintiff, by deposition, testified she was shopping, looking into the frozen food compartment and walking alongside it when she struck the pole, tripped and fell. Held :

In our consideration of this case we are confronted with two lines of cases which are not readily distinguishable. They may be categorized under the "plain view" doctrine and the "distraction" rationale. Both are exemplified by cases in 49 Georgia Appeals: National Bellas-Hess Co. v. Patrick, 49 Ga.App. 280, 175 S.E. 255, "plain view" and Mason v. Frankel, 49 Ga.App. 145, 174 S.E. 546, "distraction."

A comprehensive discussion of the basis for the "plain view" doctrine is found in Herschel McDaniel Funeral Home v. Hines, 124 Ga.App. 47, 49, 183 S.E.2d 7, 9. There, quoting from Gibson v. Consolidated Credit Corp., 110 Ga.App. 170, 179, 138 S.E.2d 77, it was pointed out: "Warnings of a condition which are or should be obvious are not required. 'Of what avail is it to post a sign on steps saying to one who approaches "This is a flight of steps," or on a brick wall saying "Here is a brick wall," or on a telephone pole saying " Beware of this, it is a pole? " ' " The doctrine itself is that one is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one's safety as would bar a recovery for resulting injuries. McMullan v. Kroger Co., 84 Ga.App. 195, 65 S.E.2d 420; Moore v. Kroger Co.,87 Ga.App. 581, 74 S.E.2d 481. In Tinley v. F. W. Woolworth Co., 70 Ga.App. 390, 394, 28 S.E.2d 322, 324, it was stated with regard to a plaintiff who struck a platform scale: "If she did...