Opinion
36271.
DECIDED SEPTEMBER 5, 1956.
Tort; injuries to invitee. Before Judge Tye. Fulton Superior Court. April 27, 1956.
Joseph S. Crespi, for plaintiff in error.
Osgood O. Williams, R. Beverly Irwin, Philip T. Keen, Irwin, Williams, Smith Keen, contra.
It cannot be held as a matter of law that the allegations of fact contained in the petition failed to show negligence on the part of the defendant, or that the petition disclosed such negligence or want of care on the part of the plaintiff as to bar a recovery.
DECIDED SEPTEMBER 5, 1956.
Katie Hunter brought an action for damages against the First National Bank of Atlanta, as administrator, with the will annexed, of the estate of S. Cunningham, and Evans Jones, doing business as Jones Grocery. The trial court sustained the separate general demurrers of the defendants to the original petition and allowed the plaintiff 15 days within which to amend. The allegations of the petition as finally amended are substantially as follows. S. Cunningham died a resident of Fulton County, Georgia, owning a plot of land with a store building thereupon numbered 952 Mason-Turner Avenue, Atlanta, Georgia. The First National Bank of Atlanta qualified as administrator with the will annexed of the Cunningham estate. The bank leased the property to, and collected the rents from, Evans Jones, who operated a grocery business there. On August 18, 1954, at about 4 p. m., the plaintiff entered the premises for the purpose of purchasing groceries. In making her purchases, she was served by one of the clerks in the store who was acting as the agent of the defendant Jones. As she left the store by way of the front entrance, she was "caused to collapse and fall" by virtue of the negligence of the joint defendants. The building faces Mason-Turner Avenue and the entrance to the store is on that street. Customers entering and leaving the store are required to use this particular entrance and to use a certain step which leads from the street upward into the store. A linoleum rug which has been in use for a long period of time covers the entire floor entrance of the store. The rug has worn because of usage in the entrance to such an extent that it has reached the wood floor of the store and at this particular point, which is at the entrance to the store, the floor has an indenture which has, because of usage, become slick to the extent that the floor has become hazardous to all customers who are required to leave the store and pass over this particular spot. The wooden floor of the store extends over the one concrete step, which is about six or eight inches high, at this entrance. There is an indenture in the wooden floor which extends over the step which has caused the floor to become slick; and, because of usage and wear, the wooden floor inclines toward the street. As the result of this condition, the entrance has become dangerous and hazardous to all who enter and leave the store. As the plaintiff undertook to leave the store by way of this entrance, she had in her right arm a large sack of groceries she had purchased in the store. Just as she reached the entrance of the store, but before having left the store and premises, the slick and worn condition of the floor caused her right foot to slide across the slick floor, which inclined toward the street, and the heel of her right shoe slid into a hole in the floor in the center of the entrance where there had originally been a doorstop for swinging doors. Those doors had been removed and the hole into which the plaintiff's heel slipped had been left. The plaintiff was thrown forward with great force and violence onto the sidewalk and street. The defendants are alleged to be jointly and severally liable by reason of the following acts of negligence: (a) In allowing the slick and worn condition of the entrance to remain unrepaired and in allowing a hole approximately three-fourths of an inch to one inch in diameter to remain in an unprotected condition so as to constitute a dangerous condition for the plaintiff when the defendants, and each of them, knew that customers entering the premises had to travel across the slick and worn floor towards the door where the hole existed, and knew that the plaintiff, as well as other customers, was likely to fall as the result of this condition; (b) in failing to keep the premises and the entrance to the street in a good state of repair; (c) in permitting a hole in the center of the floor to remain unrepaired when the defendants knew that a customer might step into the hole with the heel of his shoe and be thrown violently into the street; (d) in failing to keep the floor from the doorway to the grocery counter safe for ordinary use by customers; (e) in failing to repair the floor and to put in a new floor which does not slant downward to the door but which is level and without a hole in the center at the door, when they knew that the heel of a customer's shoe might catch in the hole which was not clearly visible without close inspection by customers entering the premises; (f) in failing to notify the plaintiff that the condition existed and that one leaving the store with a large bag of groceries was likely to slide and catch the heel of her shoe in the hole of the entrance and trip and fall. This was the first occasion the plaintiff had to enter the store, and she was unfamiliar with the premises and its defects until she had sustained her fall. All of the defects were well known to both the defendants. As a direct result of the alleged acts of negligence of the defendants, the plaintiff suffered enumerated permanent personal injuries, incurred itemized medical expenses, and has endured, and will endure, great pain and suffering. The slick condition, due to wear and usage, of the wooden floor which extended over the concrete step was invisible and the plaintiff was unable to observe that condition. The hole in the center of the floor, which was only three-fourths of an inch to one inch in diameter, was not visible except by close inspection and the plaintiff was therefore unable to observe it in the exercise of ordinary care. The defendant grocer had knowledge of the fact that his customers would carry their groceries in their arms. A clerk in the store handed the large sack to the plaintiff knowing she would have to make her exit by way of the described entrance and would have to pass over the slick floor as well as the small hole in the center of the front entrance. The clerk who sold the plaintiff her groceries was at all times acting as agent of the defendant grocer and within the scope of his employment in the prosecution of this defendant's business. The defendant bank, as landlord and as administrator of the Cunningham estate, had knowledge of the condition of the floor.
The defendants renewed their general demurrers to the petition as amended. The defendant bank's general demurrer was sustained but no exception has been taken to that judgment. The defendant grocer's general demurrer was overruled and he has brought the present writ of error to this court seeking to have that judgment reviewed.
Taking the allegations of the petition as true, as we must on demurrer, the floor at the entrance to the store which the plaintiff, as an invitee, was forced to use if she came in or left the store, slanted downward toward the street, was so worn as to become slick and dangerous, of which condition the defendant knew, but was invisible to the plaintiff without a close inspection. In the center of the entrance was also a small hole, somewhat less than an inch in diameter which had once held a door stop. The slickened condition of the slanting floor caused the plaintiff's foot to slip and her heel to catch in the hole which caused her fall and resulting injuries. While presumptively there was sufficient light, as there is no allegation that the entrance of the store was darkened, the plaintiff excludes her case from that line of cases which hold that there being light and nothing wrong with the plaintiff's vision she should have seen the obvious defects, by her allegation that the slickened condition of the floor and the hole could have been detected only by a very close inspection, an inspection which she was under no obligation to make. There are no specific facts alleged in the petition to negative the general allegations that the defendant should have repaired the defective condition of the floor of which he had actual knowledge, or should have warned her of the condition in the exercise of ordinary care.
"A duty rests upon the occupier of land to exercise ordinary care to keep the premises safe for persons coming thereon by his invitation. Code § 105-401. The invitee, in coming upon the land, may rely upon the discharge of this duty by the person occupying the land and in control of it, and therefore is not necessarily, and as a matter of law, guilty of negligence in failing to discover the existence of a patent defect in the premises which renders it unsafe for persons coming upon the premises. If the defect, though patent, is not of such a nature and character as necessarily to be seen in the exercise of ordinary care by a person coming upon the premises, and who has the right to rely upon the duty of the occupier of the premises to keep the premises safe, as where the defect is such as is here alleged, an invitee coming upon the premises and using the alcove as a walkway, who, without observing the defect, is tripped by it and injured, is not, as a matter of law, guilty of negligence in not observing the defect in the walk. The jury was authorized to find that the occupier of the premises was guilty of negligence in Knowingly maintaining the premises in the described condition. Rogers v. Sears, Roebuck Co., 45 Ga. App. 772 ( 166 S.E. 64)." Lane Drug Stores, Inc. v. Brooks, 70 Ga. App. 878, 884 ( 29 S.E.2d 716).
"`Ordinary care and diligence, as applied to the keeping of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised, according to the nature of the use to which the property is devoted'; and whether the metal strip covering the top and edge of the landing had become defective, and whether the condition could have been discovered by proper inspection, were questions for the jury. Scott v. Rich's, Inc., 47 Ga. App. 548, 550 ( 171 S.E. 201); Macon Academy Music Co. v. Carter, 78 Ga. App. 37, 40 ( 50 S.E.2d 626); and citations." Belk Gallant Co. v. McCrary, 88 Ga. App. 829, 833 ( 78 S.E.2d 198).
Under the rules stated in the foregoing cases whether the alleged defects caused the plaintiff's fall and resulting injuries, and whether or not the defendant actually knew of the alleged defects, or in the exercise of ordinary care should have discovered and repaired them or warned the plaintiff of their presence, or whether the plaintiff in the exercise of ordinary care for her own safety should have discovered the defects in the floor and avoided them, are all questions for determination by the jury.
The petition stated a cause of action as against the general demurrer and the trial court properly overruled the general demurrer.
The present case differs from those relied on by the defendant in that in those cases the defendant was charged only with constructive knowledge of the defective condition causing the injuries, while in the present case the defendant is charged with actual knowledge of the defects in his store floor.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.