Opinion
39183.
DECIDED NOVEMBER 20, 1961.
Action for damages. Columbus City Court. Before Judge Land.
Edward P. Murrah, Jr., Frank U. Garrard, Jr., for plaintiff in error.
Hatcher, Smith, Stubbs Rothschild, Albert W. Stubbs, contra.
The petition of the plaintiff, seeking to recover damages for injuries sustained because of the defendant's alleged negligence while plaintiff was an invitee in defendant's store, did not state a cause of action; and the trial court did not err in sustaining the general demurrer thereto.
DECIDED NOVEMBER 20, 1961.
Carolyn W. King filed suit in the City Court of Columbus against Davison-Paxon Co. for injuries sustained by the plaintiff because of the defendant's alleged negligence while plaintiff was an invitee in defendant's store.
The essential allegations of her amended petition were as follows: "Upon entering defendant's store, plaintiff observed a rack upon which ladies' slacks were displayed.
"Plaintiff shows that said slack rack was situated between two pyramidal three-level display racks so as to form an aisle or passageway between said slack rack and each of said pyramidal display racks.
"Plaintiff shows that the lowest shelf of one of said pyramidal display racks stood approximately eighteen (18) inches from the level of the floor in said store.
"Plaintiff shows that the distance between the slack rack and the lowest shelf of said pyramidal display rack was approximately one foot.
"Plaintiff shows that defendant intended for customers to enter the aisle or passageway between the slack rack and said pyramidal display rack, as evidenced by the fact that slacks were hung on the side of the slack rack facing toward the pyramidal display rack.
"Plaintiff entered the passageway between the slack rack and said pyramidal display rack, faced toward the slack rack and began looking through the merchandise hung on the slack rack.
"Upon selecting a pair of slacks which she wished to buy, plaintiff turned to take the slacks to a nearby dressing room to try the slacks on.
"In turning, plaintiff struck her left knee with great force against the corner of the lowest level of the pyramidal display rack.
"Plaintiff shows that the said pyramidal display rack and the slack rack had been placed too close together.
"Plaintiff shows that the display racks were instrumentalities under the exclusive control of defendant, and were obviously placed in their respective position by the defendant's employees.
"Plaintiff shows that the fact that the racks were placed in such close proximity to each other made ingress to and egress from the slack rack dangerous."
The trial court sustained the defendant's general demurrer and dismissed the plaintiff's petition as amended. The exception is to that judgment.
"A merchant must have a place to locate his goods, counters, and appliance with which to conduct his business, and when such appliances are not placed so as to threaten danger to those visiting the store, and are in full sight, and within the observation of everyone, the merchant is not liable for accidents which result from carelessness and inattention to the surroundings." Tinley v. F. W. Woolworth Co., 70 Ga. App. 390, 393 ( 28 S.E.2d 322).
While it was alleged in the instant petition that the defendant store was negligent in placing certain fixtures in close proximity to one another, there were no allegations that this condition was concealed in any manner or that the fixtures were not in use in the customary manner for which they were designed. Nor did the petition allege that the plaintiff had not actually seen the racks in question; nor allege any special circumstances such as the existence of an optical illusion or poor lighting which might have given the fixtures and the area around them a deceptive appearance; nor was there any allegation that plaintiff's attention was diverted by the display of merchandise or in any other manner.
Construing the petition most strongly against the pleader, as must be done on general demurrer, it must thus be presumed that the racks in question were in full sight and within the observation of the plaintiff and that she in fact saw such fixtures before striking her knee against the "pyramidal display rack" since she does not allege to the contrary. Accordingly, it cannot be said in this case that the defendant store neglected any duty which it owed to the plaintiff.
The facts alleged in the plaintiff's petition easily distinguish this case from Stanfield v. Forrest Five c. Stores 95 Ga. App. 739 ( 99 S.E.2d 167) and Big Apple Super Market v. Briggs, 102 Ga. App. 11 ( 115 S.E.2d 385), relied upon by the plaintiff in error.
The petition as amended therefore did not state a cause of action against the defendant and the trial court did not err in sustaining the general demurrer and dismissing the plaintiff's petition.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.