Werbin & Tenenbaum, Inc. v. Heard
| Decision Date | 06 February 1970 |
| Docket Number | No. 2,No. 44910,44910,2 |
| Citation | 173 S.E.2d 114,121 Ga.App. 147 |
| Parties | WERBIN & TENENBAUM, INC. v. Lottie M. HEARD |
| Court | Georgia Court of Appeals |
Appellee Heard brought an action against appellant Werbin & Tenenbaum, Inc., doing business as Great Savings Store, seeking recovery of damages for injuries received when she allegedly fell on the premises of a store operated by the defendant. The defendant answered, denying the material allegations of the complaint, and subsequently moved for summary judgment based upon the pleadings, the deposition of the plaintiff taken by the defendant for purposes of discovery, the answers of plaintiff to defendant's interrogatories, and an affidavit of Harry Werbin. The plaintiff responded with an affidavit from her attorney who investigated the case. The trial judge denied the motion of the defendant and the defendant, with proper certificate of the trial judge, appeals to this court. The material allegations of the petition are set forth in paragraphs 5 and 7 of the complaint as follows: The answers of the plaintiff to the interrogatories of the defendant produced no evidence material to the issue before the court. The plaintiff's deposition taken by the defendant proved that she was an invitee of the store, that the automobile in which she came was parked on the edge of the drivewat or alleyway which was customarily used by customers of the store in which to park their cars, that she fell in a hole in the driveway or alleyway when she was returning to the automobile from the store with three bags full of groceries, which interfered with her view of the ground in front of her. She did not see the hole when she walked into the store and she did not know exactly how big or deep the hole was, but it was deep enough to cause her to fall. Her attorney who investigated described the hole as a deep hole, and that the hole gave the appearance of having been there for some time. The affidavit of Mr. Werbin shows that he was familiar with the surroundings of the store involved, the parking area, driveway and 'alleyway' adjacent thereto, that the 'alleyway' was designed only for vehicular traffic and to service the rear of said store where employees only were allowed to park, which parking area was enclosed by a chain link fence and that there were no parking places for automobiles in said area.
O'Kelley, Hopkins & VanGerpen, Earl J. VanGerpen, Benjamin Landey, Atlanta, for appellant.
Grace W. Thomas, Atlanta, for appellee.
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...when the party making the motion for summary judgment is not required to carry the burden on the trial of the case.' Werbin & Tenenbaum v. Heard, 121 Ga.App. 147(2, 3), 173 S.E.2d See also Southern Bell Telephone & Telegraph Co. v. Beaver, 120 Ga.App. 420(4), 170 S.E.2d 737 where, upon appl......
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