Opinion
43194, 43195.
SUBMITTED NOVEMBER 6, 1967.
DECIDED JANUARY 15, 1968. REHEARING DENIED JANUARY 30, 1968.
Action for damages. Fulton Superior Court. Before Judge Etheridge.
Carnes, Jernigan, Dillon White, James A. White, Jr., for appellants.
Lokey Bowden, Glenn Frick, for appellee.
The petition states a cause of action against the defendant for creating a foreseeable unreasonable risk of harm to the plaintiffs in constructing and maintaining elevated parking dividers in a parking lot in the manner alleged in the petition.
SUBMITTED NOVEMBER 6, 1967 — DECIDED JANUARY 15, 1968 — REHEARING DENIED JANUARY 30, 1968.
In these actions by a husband and wife for damages allegedly resulting from the defendant's negligence which caused the wife to fall and be injured on the defendant's premises, the plaintiffs appeal from judgments of the trial court sustaining the defendant's general demurrers.
The petitions allege: Mrs. Hollis left the defendant's bank by a walkway that is elevated about 8 inches above the defendant's parking lot where the walkway ends. When she stepped down to the parking lot she stumbled and fell on a wooden barrier about 6 inches high and about 1 and 1/2 steps from the end of the walkway, extending parallel with the end of the walkway about one-third the width of the walkway, positioned at ground level. The parking lot was greyish-white asphalt type material with the appearance of being flat and level. The barrier was of greyish-white spotted color about the same as the surface of the parking lot so that they could not be distinguished from each other, and gave the appearance of a continuous flat surface for walking upon.
She did not know the barrier was there, did not see it, and it was not visible or noticeable because its color tone and that of the parking lot were the same. She was holding her head straight forward and looking in the direction in which she was walking. The allegations of negligence included constructing and maintaining the barrier of a color undistinguishable from the parking-lot surface, of a height less than the height of and below the surface of the walkway with its presence obstructed by the height of the walkway and unobservable by her.
The defendant contends that the cases of Sanders v. Jefferson Furn. Co., 111 Ga. App. 59 ( 140 S.E.2d 550); McMullan v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420); Ely v. Barbizon Towers, 101 Ga. App. 872 ( 115 S.E.2d 616) and McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512) are controlling. Those cases merely hold that the mere fact of maintaining dividers elevated above the surface in parking areas does not in itself amount to negligence by the proprietor. See Johnson v. Thompson, 111 Ga. App. 654, 657 ( 143 S.E.2d 51). They do not hold that maintaining elevated parking dividers can never amount to negligence by the proprietor regardless of the surrounding circumstances. The question is whether these dividers expose an invitee to a foreseeable unreasonable risk of harm under the totality of the circumstances in each particular case. In making this determination, the court must consider the utility of the dividers with respect to the type of construction, location observability to invitees and the state of maintenance. For a recent case where the undisputed evidence on summary judgment showed no genuine issue of liability see Broadview Plaza, Inc. v. Goodman, 116 Ga. App. 738 ( 158 S.E.2d 258).
In our opinion, the facts alleged in this petition relating to the location, appearance, and visibility of the barrier when compared with comparable allegations in the following cases, create an issue of fact for jury determination. Atlanta Terminal Co. v. Johnson, 15 Ga. App. 22 ( 82 S.E. 629); Rogers v. Sears, Roebuck Co., 45 Ga. App. 772 ( 166 S.E. 64); Fuller v. Louis Steyerman Sons, 46 Ga. App. 830, 836 ( 169 S.E. 508); Lane Drug Stores v. Brooks, 70 Ga. App. 878 ( 29 S.E.2d 716); Delta Air Lines v. Millirons, 87 Ga. App. 334 ( 73 S.E.2d 598); Wicker v. Roberts, 91 Ga. App. 490 ( 86 S.E.2d 350); Etheridge Motors v. Haynie, 103 Ga. App. 676 ( 120 S.E.2d 317).
When the petition alleges facts creating an issue that the thing described as a defect was not observable to the plaintiff in the exercise of ordinary care but was within the proprietor's actual or constructive knowledge, it is not subject to general demurrer. Wynne v. Southern Bell Tel. Tel. Co., 159 Ga. 623, 624 ( 126 S.E. 388); Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527), certiorari denied by the Supreme Court, 113 Ga. App. 887.
The trial court erred in sustaining the defendant's general demurrers.
Judgment reversed. Felton, C. J., Jordan, P. J., Deen, Quillian and Whitman, JJ., concur. Bell, P. J., Eberhardt and Pannell, JJ., dissent.
I must agree with the trial judge in his sustaining of the general demurrers. The factual situation presented in these petitions cannot, in my judgment, be logically distinguished from those presented in McMullan v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420); Ely v. Barbizon Towers, 101 Ga. App. 872 ( 115 S.E.2d 616); McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512); Carmichael v. Timothy, 104 Ga. App. 16 ( 120 S.E.2d 814); Cook v. Parish, 105 Ga. App. 95 ( 123 S.E.2d 409); Pulliam v. Walgreen Drug Stores, 108 Ga. App. 90 ( 131 S.E.2d 801); Sanders v. Jefferson Furn. Co., 111 Ga. App. 59 ( 140 S.E.2d 550); Associated Distributors, Inc. v. Canup, 115 Ga. App. 152 ( 154 S.E.2d 32), and Broadview Plaza, Inc. v. Goodman, 116 Ga. App. 738 ( 158 S.E.2d 258), in all of which we held that no cause of action was presented. All of these were parking lot cases, and we are bound by them.
Ignoring the rules of law established by these cases, applicable to parking lot areas, and planting the holding upon rulings made in cases involving other and different situations is an incivility to the rule of stare decisis, a tergiversation in which I cannot join.
Relative to outside areas "The pedestrian is not entitled to an absolutely level and unobstructed passageway." 4 Shearman Redfield on Negligence, p. 1817, § 795. "In determining what is a defect in a sidewalk, or a store aisle, or a parking lot, we must take into consideration the nature of the establishment, and we must undertake to determine just what type of surface the user would have the right to expect." Byrnes v. National Cas. Co. (La.App.), 45 So.2d 408. "Certainly plaintiff, upon entering or leaving . . . and undertaking to walk through and upon the parking grounds, must take notice that such changes in elevations are not uncommon and are to be expected." Seal v. Safeway Stores, 48 N.M. 200 ( 147 P.2d 359).
With the exception of Delta Air Lines, Inc. v. Millirons, 87 Ga. App. 334 ( 73 S.E.2d 598) all cases cited and relied on by the majority deal with situations other than parking lots. It must be recognized that the kinds of situations to be expected in parking lots are different from that which applies to other areas, such as in stores and the like. In Delta liability was predicated not on the maintenance of the ten-inch concrete curb for regulating uniformity in the parking of automobiles on the lot and to keep them off the landing field, on which plaintiff stumbled and fell, but upon the fact that the air line maintained a bright floodlight which patrons faced in going to the parking lot area and which rendered it impossible for him to see the curb when he approached his automobile.
These petitions do not present situations of unreasonable risk of foreseeable harm, but rather the situation which one ordinarily expects to find in any parking lot and which he should anticipate in going onto or away from it. That the user of the lot should anticipate the bar, curb, separator or divider in approaching or returning to the lot is settled by the decisions above cited.
The case of Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527) is inapposite, for in that case (not involving a parking area) the offending object was a large rubber mat at the entrance to defendant's store, on which the plaintiff must step in order to gain entrance. Here plaintiff proceeded in broad daylight into the parking lot, where she should have expected to find the concrete curb, and have stepped over it.
As to any claim of "optical illusion," as was asserted in Ely v. Barbizon Towers, Inc., 101 Ga. App. 872, supra, "The facts alleged exclude the idea that an optical illusion caused the injuries, but even if one did it would be even more remote and unforeseeable than the danger without the illusion." And see Carmichael v. Timothy, 104 Ga. App. 16, supra, where a similar claim was made.
I would affirm. I am authorized to state that Presiding Judge Bell and Judge Pannell join me in this dissent.