Telligman v. Monumental Properties, Inc., 62649

Decision Date21 January 1982
Docket NumberNo. 62649,62649
Citation161 Ga.App. 13,288 S.E.2d 846
PartiesTELLIGMAN et al. v. MONUMENTAL PROPERTIES, INC.
CourtGeorgia Court of Appeals

Jerry B. Hatcher, Atlanta, for appellants.

William A. Dinges, Atlanta, William D. Temple, Decatur, for appellee.

CARLEY, Judge.

Plaintiff-appellant, an invitee who slipped and fell on ice located on business premises, appeals from the grant of summary judgment to the defendant-appellee, the proprietor of the business.

1. Appellee's original motion for summary judgment was denied on August 18, 1980. The second motion, which was granted and which is the basis for the instant appeal, was made some nine months later, in May of 1981. In the interim between the denial of the first motion for summary judgment and the grant of the second, there was no expansion of the record to include any additional significant evidence. In related enumerations of error appellant asserts that the trial court abused its discretion and erred in "rehearing" appellee's motion for summary judgment which had originally been denied.

Appellant contends, in essence, that absent an expansion of the record, appellee's second motion for summary judgment was no more than a renewal of the previously denied motion and the trial court was without authority to consider and to grant it. "After a review of statutory and case authority, we conclude that it is within the discretion of a trial judge to consider a renewed motion for summary judgment even without an expansion of the record." Premium Dist. Co. v. Nat. Dist. Co., 157 Ga.App. 666, 667(1), 278 S.E.2d 468 (1981). It is clear from the record that appellant expressly waived the "notice" requirement of Code Ann. § 81A-156(c) as to the renewed motion. See Johnson v. Heifler, 141 Ga.App. 460, 233 S.E.2d 853 (1977). After appellant stated there was "no objection" to "proceeding into a summary judgment hearing on the matter at this time", the trial court conducted a full hearing on the motion in accordance with the requirements of Code Ann. § 81A-156. Compare Premium Dist. Co., 157 Ga.App. at 668(2), 278 S.E.2d 468, supra. Therefore, without endorsing the procedure followed in the instant case regarding the renewal of appellee's motion for summary judgment, we hold that appellant's waiver of any objections thereto is determinative of the procedural issues raised on appeal. Johnson, 141 Ga.App. 460, 233 S.E.2d 853, supra.

2. Appellant enumerates as error the merits of the grant of summary judgment to appellee, contending that under the evidence of record genuine issues of material fact remained for jury resolution.

Resolution of this question requires that we establish as a predicate the applicable legal principles and parameters within which the facts of the instant case must be considered. "[I]n order for [a plaintiff in a slip and fall case such as this] to recover, two elements must exist: (1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee, [cit.]" Pound v. Augusta Nat., 158 Ga.App. 166, 168, 279 S.E.2d 342 (1981). Stated another way, liability for injuries resulting from an invitee's slip and fall on a proprietor's premises is determined by the relative "knowledge" possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. " 'The basis of the proprietor's liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.' " Rogers v. Atlanta Enterprises, Inc., 89 Ga.App. 903, 906, 81 S.E.2d 721 (1954). Thus, in cases such as the instant one, where an invitee has slipped and fallen on a foreign substance such as ice, "knowledge" is the decisive issue and "the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance." Alterman Foods v. Ligon, 246 Ga. 620, 623, 272 S.E.2d 327 (1980). Therefore, the legal issue in the instant case is whether the evidence, when construed most favorably for appellant, demonstrates as a matter of law that appellee did not have knowledge superior to that of appellant of the condition or hazard which resulted in the slip and fall.

Central to the facts of this case is an ice storm which occurred in the Atlanta area on January 12-13, 1978. It is undisputed that both appellant and appellee had actual knowledge of the generally prevailing meteorological conditions in the Atlanta area on the morning of January 13, 1978 and were aware that sleet and frozen rain had accumulated overnight. With specific regard to the conditions existing at appellee's business premises and the measures taken with regard thereto, the evidence shows that appellee's maintenance crew apparently arrived at 7 a. m. and began work pursuant to appellee's "inclement weather procedures" which anticipated that "any corrective measures needed [would] be taken in sufficient time before customers begin arriving for 10:00 a. m. opening." Appellee's maintenance crew apparently began to take such established corrective actions with regard to the icy conditions existing on the sidewalk areas of the premises, including manually chipping away ice, spreading salt and roping off hazardous areas. Despite these "corrective" activities appellee concedes that its maintenance crew made "no efforts" to remove the ice from in front of one of the entrances into the premises, ostensibly because such efforts were not deemed necessary.

Under these circumstances, a finding would be authorized that appellee was at "fault" with regard to any hazardous icy condition existing at this entrance and had at least constructive knowledge thereof. See generally Winn-Dixie Stores v. Hardy, 138 Ga.App. 342, 226 S.E.2d 142 (1976); Sharpton v. Great A & P Tea Co., 112 Ga.App. 283, 145 S.E.2d 101 (1965). Compare Auerbach v. Padgett, 122 Ga.App. 79, 176 S.E.2d 193 (1970); Holtzclaw v. Lindsay, 122 Ga.App. 703, 178 S.E.2d 561 (1970); Fincher v. Fox, 107 Ga.App. 695, 131 S.E.2d 651 (1963). Indeed, on appeal appellee is apparently willing to concede for the sake of argument that such a finding would be authorized under the evidence of record, arguing only that appellant's "equal" knowledge of any hazardous icy condition existing in front of the entrance to the premises bars her recovery in the instant case. Accordingly, we turn to the evidence concerning appellant's knowledge of the existence of ice on appellee's business premises.

On the morning of January 13, 1978, appellant called to determine whether appellee would be open for business despite the weather conditions. Appellant was told by appellee that the business would be opening at approximately 10:30 a. m. Acting on this information, appellant drove to appellee's premises. She encountered no ice in appellee's parking lot. Appellant was, however, keeping a vigilent lookout for the presence of ice on her path and, as she approached the entrance, she saw that there were some icy accumulations on the sidewalk. Apparently with this knowledge appellant elected to stay on the relatively ice-free parking lot surface until such time as she could find a safe place to step up on the sidewalk. Believing that she had in fact discovered a safe place to step up onto the sidewalk and enter appellee's premises, appellant attempted to do so. Appellant immediately slipped on "[a]n almost invisible patch of ice that [she] could not see until [she] fell [on it]..." It is this evidence which appellee urges demonstrates, as a matter of law, that appellant had at least "equal knowledge" of the hazard and that she cannot recover.

We find appellee's arguments in this regard...

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