Opinion
39301.
DECIDED APRIL 6, 1962. REHEARING DENIED APRIL 26, 1962.
Action for damages; summary judgment, etc. Chatham Superior Court. Before Judge Harrison.
John J. Sullivan, W. W. Newton, for plaintiff in error.
Bouhan, Lawrence, Williams, Levy McAlpin, Kirk McAlpin, contra.
1. A technical and procedural objection to the ground of a motion for summary judgment must be raised in the trial court prior to the hearing on the motion before this court can consider it.
2. 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 a recently waxed or soaped area of the floor in the defendant's grocery store, and the trial court erred in granting a summary judgment in favor of the defendant.
DECIDED APRIL 6, 1962 — REHEARING DENIED APRIL 26, 1962.
Mabel D. Burns filed her petition in the Superior Court of Chatham County against Great Atlantic Pacific Tea Company, Inc., t/a A. P. Food Store, seeking damages of $51,493.95 allegedly sustained when she fell on a floor, which was slippery with wax or soap, in defendant's store. The petition alleged that one of defendant's employees had mopped the area near the bread counter, in which area she fell, earlier in the day, with a waxy or soapy substance and that there was nothing to indicate the slippery nature of the floor at the time of her fall.
Subsequently to the filing of its general demurrer and answer to the plaintiff's petition, the defendant took the deposition of the plaintiff, who testified that she had seen one of the defendant's employees mopping with either soapy water or wax the same area in which she fell, "two or three minutes" before she walked on this area. She further testified that, at the time of her fall, she had nothing in her hands, no clerks were talking to her, the store lights were on, and that she had good vision when wearing her eyeglasses, as she was at that time.
The defendant thereafter filed its motion for summary judgment upon the attached deposition of the plaintiff, on the ground that "there is no genuine issue as to any material fact." The plaintiff did not file any opposition to the defendant's motion for summary judgment.
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, granted the defendant's motion for summary judgment, entering judgment in favor of the defendant.
To the above order the plaintiff excepted on the following grounds: (a) That the defendant's ground of motion for summary judgment was not sufficiently specific as to acquaint the plaintiff with the basis upon which the motion was sought; (b) That the defendant failed to specify the portion or portions of the plaintiff's deposition which resolved all issues of material fact, or to specify that said portion or portions were relevant and admissible; (c) That the court erred in attempting to resolve the facts and reconcile the issues of the plaintiff's case upon the basis of the defendant's motion and the plaintiff's answer to questions propounded by counsel for defendant on discovery.
1. As to the plaintiff in error's procedural ground of exception to the ground of the defendant in error's motion for summary judgment, this objection should have been raised in the trial court prior to the hearing on the motion and she cannot be heard to complain for the first time in this court of any such error.
2. The defendant's motion for summary judgment in this case was based upon the alleged failure of the plaintiff to exercise ordinary care and diligence for her own safety in walking upon the floor on which she fell. The defendant contended that the deposition affirmatively showed that the plaintiff knew that wax or soapy water had just been applied to this particular area and that there were no facts which would have prevented her from being aware of the slippery condition of the floor, and that the court's finding for it on the summary judgment was therefore justified.
"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 429); 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)." Beck v. Wade, 100 Ga. App. 79, 83 ( 110 S.E.2d 43); Clayton v. Steve-Cathey, Inc., 105 Ga. App. 570 ( 125 S.E.2d 118).
As pointed out by this court in Wasserman v. Southland Investment Corp., 105 Ga. App. 420 ( 124 S.E.2d 674), and in the Clayton case, supra, `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." Although the deposition of the plaintiff showed that she was aware of the fact that the area on which she fell had just been mopped or waxed a few minutes prior to her fall, it was a question for the jury as to whether such knowledge constituted knowledge of the danger involved in walking on that area of the floor, and whether, in walking on the floor with such knowledge, she was so negligent as to be barred of a recovery. Rothschild v. First Nat. Bank, 54 Ga. App. 486 ( 188 S.E.2d 301); Goldsmith v. Hazelwood, 93 Ga. App. 466 ( 92 S.E.2d 48); Netherland v. Pacific Employer's Ins. Co., 101 Ga. App. 837 ( 115 S.E.2d 122); Wasserman v. Southland Investment Corp., 105 Ga. App. 420 supra; Clayton v. Steve-Cathey, Inc., 105 Ga. App. 570, supra. The trial court therefore erred in granting a summary judgment in favor of the defendant.
Judgment reversed. Bell and Hall, JJ., concur.