Opinion
42115.
ARGUED JUNE 8, 1966.
DECIDED JULY 1, 1966.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Reeves Collier, Rex T. Reeves, Merrill Collier, for appellant.
Marvin G. Russell, Turner Paschal, Douglas Dennis, for appellees.
1. A lessee operating a grocery store in a shopping center owes to a customer whom it invites to use a ramp, installed by the lessor shopping center at the lessee's request and as a facility to the lessee's business between the sidewalk and parking area in front of the store, a duty to exercise ordinary care to keep the ramp safe for its customers' use.
2. Evidence of the length of time a dangerous condition had existed on a ramp in front of a grocery store, and of the length of time employees of the store had used the ramp, created an issue of fact whether the proprietor had an opportunity to observe and know of the dangerous condition.
3. The effect on the plaintiff's credibility of statements the plaintiff made before a summary judgment hearing, if the statements were inconsistent with the plaintiff's testimony on the hearing, was for a jury to determine.
ARGUED JUNE 8, 1966 — DECIDED JULY 1, 1966.
The plaintiff appeals from a summary judgment granted to The Kroger Company on the issue of its liability in this negligence action.
Count 1 of the plaintiff's petition alleged the following facts: The defendant Campbellton Plaza Corporation (hereinafter called Campbellton) owned a shopping center where the defendant The Kroger Company (hereinafter called Kroger) leased a building in which it operated a grocery store. (This appeal involving only Kroger as defendant, the allegations will be stated only as they relate to it.) In front of Kroger's store there was a ramp, slanting between the sidewalk and the parking area, at a six-inch lower level, which Kroger caused to be constructed to facilitate rolling of metal grocery carts from the higher sidewalk to the lower parking area. The ramp was made of slick tar which did not contain sufficient abrasive on its surface to prevent it from being too slick for persons to walk on without slipping. This condition of the ramp was inherently dangerous to persons walking on it. Kroger knew of this slippery and dangerous condition, by and through its employees, Edward Pannell and others, engaged daily in rolling shopping carts down the ramp, and also by and through its employees who requested Campbellton to construct the ramp. On December 30, 1960, after the plaintiff shopped in Kroger's store, an employee of Kroger acting in the scope of his employment and in the course of and in furtherance of Kroger's business took charge of a cart containing groceries selected by the plaintiff, directed the plaintiff to walk behind him as he pushed the card towards the ramp, and pushed the cart down the ramp and walked behind it. As the plaintiff started to follow the employee down the ramp as directed by him, her left foot slipped as she placed it on the ramp and she fell and was injured. The slippery and dangerous condition of the surface caused the plaintiff's foot to slip and her resulting injuries. The ramp did not appear to the plaintiff to be too slick and dangerous to walk on, and she was further assured that it was not dangerous by the defendant's employee walking down it in front of her. The plaintiff could have observed the dangerous condition only by stooping down and making a close inspection, and she had no appreciation of the danger until her foot slipped. Kroger was negligent in failing to keep the ramp in a safe condition for use of its invitees, in directing the plaintiff to follow its employee and step on the ramp, and in failing to warn the plaintiff of the danger.
Count 2 contained the following additional allegations: The ramp was installed by Campbellton as a facility to Kroger's store which Kroger leased from Campbellton, and had been used by Kroger employees to roll carts of groceries to customers' cars for at least two years before the plaintiff was injured. Kroger employees each day for four years had swept the sidewalk and swept and cleaned the roadway adjacent to the sidewalk in the area of the ramp. The tar of the ramp was contained in an asphalt-like substance. Kroger knew or should have known of the slippery and dangerous condition of the ramp. Kroger, knowing of its latent slippery and dangerous condition, was negligent in allowing the ramp to be at the location where the plaintiff fell.
1. In support of the summary judgment in its favor, Kroger contends that it cannot be held liable for the plaintiff's injuries because its lease under which it occupied the store provided that the lessor had control of and the obligation to keep in repair the sidewalk and parking area which the ramp joined, and that Kroger had only an easement in these areas used in common by the tenants of the shopping center.
Section 105-401 of the Georgia Code provides: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." (Emphasis supplied). Irrespective of the duties and obligations between Kroger and its lessor, the pleadings and evidence before the court show that Kroger invited the plaintiff to use the ramp which had been constructed at its request as a facility to its business. Kroger, therefore, owed the plaintiff as its business invitee a duty to exercise ordinary care to keep the ramp safe for her use. Macon Telegraph Pub. Co. v. Graden, 79 Ga. App. 230 ( 53 S.E.2d 371); Robertson v. Liggett Drug Co., 81 Ga. App. 850 ( 60 S.E.2d 268); Belk-Matthews Co. v. Thompson, 94 Ga. App. 331, 338 ( 94 S.E.2d 516); Mason v. Crowe, 88 Ga. App. 191, 195 ( 76 S.E.2d 432). Accord Feir v. Town City of Hartford, 141 Conn. 459 ( 106 A.2d 723, 725); Watts v. Rhodes, 325 Mass. 697 ( 91 N.E.2d 925, 926); 32 Am. Jur. 698, § 819. This decision is not inconsistent with that in Spindel v. Gulf Oil Corp., 100 Ga. App. 323 ( 111 S.E.2d 160), upon which Kroger relies.
2. Kroger contends that there was no evidence creating a genuine issue that Kroger had actual or constructive notice of the alleged slippery condition of the ramp. On hearing the motion for summary judgment the trial court considered evidence that Kroger was the occupier of the store building as lessee for a term commencing on November 1, 1955, that in operating under its lease Kroger employees each morning swept the sidewalk adjacent to the ramp into the parking lot; that Kroger employees had used the ramp to roll carts of groceries to customers' cars each day the store was open; and that the ramp was slippery in 1960 during the month of December and on December 30, when the plaintiff fell. The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case (nature of the business, size of the store, the number of customers, the nature of the dangerous condition, and its location). 65 CJS 547, 548, § 51. The evidence outlined above created an issue of fact whether the ramp had been slippery for a length of time sufficient to give Kroger an opportunity to observe the condition and thereby give it at least constructive knowledge of the dangerous defect. Accord City of Thompson v. Poss, 93 Ga. App. 663 ( 92 S.E.2d 557).
3. Kroger contends that the evidence shows that the alleged slippery condition of the ramp was not the cause of the plaintiff's injuries because of evidence of statements the plaintiff made prior to the hearing as to the cause of her fall. These statements were that the fall occurred when her "shoe heel caught in or on the sidewalk (broken in three places) with left foot sliding in or on asphalt runway leading from sidewalk to street," and that she fell "while walking down a ramp at Campbellton Plaza Shopping Center at Kroger's . . . she tripped on a break in the pavement. . ." Even if these statements were inconsistent with the plaintiff's testimony on the hearing, their effect on the plaintiff's credibility would be for a jury to determine. Travelers Ins. Co. v. Miller, 104 Ga. App. 554, 563 ( 122 S.E.2d 268).
A genuine issue of material fact being presented by the pleadings and evidence, the trial court erred in granting the summary judgment.
Judgment reversed. Nichols, P. J., and Deen, J., concur.