Opinion
39270.
DECIDED FEBRUARY 27, 1962. REHEARING DENIED MARCH 19, 1962.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Abraham J. Walcoff, for plaintiff in error.
Gambrell, Harlan, Russell, Moye Richardson, James C. Hill, Edward W. Killorin, contra.
It was a question for the jury, under the record before the court on motion for summary judgment, as to whether the plaintiff's injuries were caused by her failure to exercise ordinary care for her own safety in walking upon the floor in the defendant's office building; and the trial court erred in granting a summary judgment in favor of the defendant.
DECIDED FEBRUARY 27, 1962 — REHEARING DENIED MARCH 19, 1962.
This was a suit to recover damages for personal injuries sustained by the plaintiff, an employee of a tenant in an office building owned and maintained by the defendant, when she slipped and fell in a corridor of said office building while returning to her office from the ladies' restroom. The petition alleged that the floor of said corridor was smooth, slick, slippery, dangerous and unsafe to use; and the cause of action was predicated upon the alleged negligence of the defendant in failing to keep the floor covering in a safe condition, in applying to the floor of the corridor a wax or grease and highly polishing it so that it created a smooth, slick, dangerous and unsafe condition to the floor, and in failing to give the plaintiff warning that the covering of the floor was in said dangerous condition. The petition further alleged that the actual dangerous condition of the covering of the corridor was not apparent or obvious to the plaintiff who was in the exercise of ordinary care for her own safety; and that she was unable to discover the actual dangerous condition of the floor covering because the colors and the manner in which the squares of manufactured material were laid in alternate colored rows of white and dark green, diagonally across the floor of the corridor, lessened the possibility of observing the extent of the actual dangerous condition of the floor covering; and that the plaintiff did not know and had no means of ascertaining the actual dangerous condition of the corridor or that it would be dangerous to use said corridor.
The defendant in its answer denied the allegations of negligence; and by way of further plea and answer, alleged that the plaintiff failed to exercise ordinary care for her own safety, and that the plaintiff voluntarily assumed the risks of her activities. The defendant filed demurrers to the petition and the plaintiff filed demurrers to certain paragraphs of the answer.
The defendant then took the deposition of the plaintiff who testified that she was 36 years of age and that on March 3, 1960, the day of her fall, she was working for the New Yorker Magazine, with offices located on the third floor of the defendant's building at 1301 Peachtree Street, Atlanta, Georgia, and had been working there since July 1, 1959. She had come to work that morning at approximately 8:15 to 8:30 a. m., had ridden up on the elevator, and had gotten off at the same spot where she later fell. At about 9:45 a. m. she left her office and went to the ladies' room, again walking over the same spot in front of the elevator to get there. She stayed in the ladies' room two or three minutes and then walked back over about the same place she had walked on her way in. Then she testified "The highly polished floor caused me to slip and I fell and broke my arm." The plaintiff testified that the hallway was well lighted; that there was nothing wrong with her eyesight (with glasses); that there were no foreign substances on the floor other than the wax or polish; that the floor was more highly polished than usual; that she could tell this by looking at the floor; and that the floor "looked slippery and shiny and highly polished."
The defendant thereafter filed its motion for summary judgment, attaching the deposition of the plaintiff as an exhibit thereto. The plaintiff filed her verified opposition to the motion for summary judgment together with an affidavit in which she asserted that "the covering on the third floor corridor appeared smooth, slick and slippery but not to such an extent that it would be dangerous to use the said corridor or hallway, and I did not know and I had no means of ascertaining the actual dangerous condition of said corridor or hallway."
The trial court without any hearing on the demurrers and after hearing argument of counsel and considering the verified petition and the deposition of the plaintiff and the opposition with the affidavit of the plaintiff attached thereto opposing the motion for summary judgment, granted the defendant's motion for summary judgment. The exception is to that judgment.
The defendant's motion for summary judgment in this case was predicated upon the alleged failure of the plaintiff to use ordinary care for her own safety in walking upon the floor on which she fell. It is the contention of the defendant that since the plaintiff's deposition disclosed that she had observed that said floor "looked slippery, shiny and highly polished," a finding was demanded for the defendant on this issue and the trial court therefore did not err in sustaining its motion.
The plaintiff maintains, however, that since "knowledge of defects" is not necessarily tantamount to "knowledge of danger" and "appreciation of risk" (see Townley v. Rich's, Inc., 84 Ga. App. 772, 776, 67 S.E.2d 403), it was a question for the jury, under the facts and circumstances adduced on motion for summary judgment, as to whether the plaintiff had knowledge of the actual dangerous condition of the floor, and that such knowledge could not be inferred as a matter of law from her testimony in regard to the appearance of the floor.
As pointed out by this court in Beck v. Wade, 100 Ga. App. 79, 83 ( 110 S.E.2d 43): "Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question. Atlanta Transit System v. Allen, 96 Ga. App. 622 ( 101 S.E.2d 134); Southern Stages v. Clements, 71 Ga. App. 169 ( 30 S.E.2d 429). There is a difference between mere knowledge of a defect and full appreciation of the risk involved. Scott v. Rich's, Inc., 47 Ga. App. 548, 551 ( 171 S.E. 201)."
This principle of law as applied to the instant factual situation means that only "where defective conditions of floors are obvious under ordinary circumstances, if ordinary care is employed in using the sense of sight and where such conditions are so obviously dangerous that no person of ordinary prudence while in the exercise of ordinary care would use the floor," may the court resolve the issue against the plaintiff as a matter of law. (Italics ours.) Macon Academy Music Co. v. Carter, 78 Ga. App. 37 (1), 39 ( 50 S.E.2d 626).
"`Ordinary care,' `acts of an ordinary prudent man' are variable terms, according to the situation upon which they operate. It has therefore been found by courts to be justifiable to leave all such questions for determination by the jury, unless it be perfectly plain and obvious from all human experience that no ordinary intelligent person would have sustained injury under the circumstances, unless he was careless of his own safety." Rothschild v. First Nat. Bank, 54 Ga. App. 486, 488 ( 188 S.E. 301).
It was not the purpose of the Summary Judgment Law (Ga. L. 1959, p. 234) to change these general rules with reference to submitting questions to the jury, and a summary judgment should be granted only if there is no genuine issue of fact as shown by the record before the court. Wasserman v. Southland Investment Corp., 105 Ga. App. 420 ( 124 S.E.2d 674).
The plaintiff's deposition in the instant case disclosed that she had observed that the floor on which she fell "looked slippery, shiny and highly polished." In her affidavit filed in opposition to the motion for summary judgment, however, she stated that the floor did not appear to be smooth, slick and slippery to such extent that it would be dangerous to use the corridor and that she did not know and had no means of ascertaining the actual dangerous condition of the floor. While the plaintiff may not prevail upon mere conclusions which are contradictory to the established facts, we do not think that it can be said that her testimony in regard to the appearance of the floor showed sufficient knowledge on her part of the alleged dangerous condition of the floor nor such appreciation of the risk attendant upon the use of said floor as would bar her recovery as a matter of law. Rothschild v. First Nat. Bank, 54 Ga. App. 486, 491, supra; Goldsmith v. Hazelwood, 93 Ga. App. 466 ( 92 S.E.2d 48), and the decisions cited therein.
Accordingly, it was a question for the jury, under the record before the court on motion for summary judgment, as to whether the plaintiff's injuries were caused by her failure to exercise ordinary care for her own safety in walking upon the floor in the defendant's office building; and the trial court erred in granting a summary judgment in favor of the defendant.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.