Summary
construing former version of OCGA § 51-3-1
Summary of this case from Camelot Club Condo. Ass'n, Inc. v. Afari-OpokuOpinion
44344, 44346. 44345, 44347.
ARGUED MARCH 3, 1969.
DECIDED APRIL 17, 1969.
Action for damages. Fulton Superior Court. Before Judge Emeritus Moore.
Powell, Goldstein, Frazer Murphy, C. B. Rogers, E. A. Simpson, Jr., for Millard.
Albert P. Feldman, for Gardner.
Long, Weinberg Ansley, Ben L. Weinberg, Jr., John E. Talmadge, O'Kelley, Hopkins Van Gerpen, Earl J. Van Gerpen, Robert E. Whitley, for appellees.
1. The motions to dismiss are rendered moot by the holding in Division 1.
2, 3. The grants of summary judgments in favor of the co-defendants, the shopping center and its employee-contractor, were erroneous.
ARGUED MARCH 3, 1969 — DECIDED APRIL 17, 1969.
Mrs. Nellie Gardner and her husband, Willie P. Gardner, each brought an action against Kenneth Larry Millard, Rex Millard, Moreland Shopping Center, Inc. (hereinafter "Moreland"), AAA Electrical Contractors Engineers, Inc. (hereinafter "AAA") and Walgreen Drug Co. (hereinafter "Walgreen") for damages for personal injuries sustained by Mrs. Gardner allegedly resulting from the defendants' negligence.
The complaints alleged substantially as follows: On March 30, 1966, the plaintiffs were customers of Walgreen's in the defendant shopping center, at which time defendant AAA was performing work for defendant Moreland upon the shopping center's parking lot. During the course of performing this work, AAA had strung a rope between two uprights across a portion of the parking area in which cars normally drive and pedestrians normally walk. The rope was not readily discernible against the background of the parking area and stores and cars. There were white rags tied to the rope spaced about 15 feet apart, which blended into the background, but no colored flags were attached thereto to warn invitees of the presence of the rope. The rope was erected between Walgreen's and the portion of the parking area convenient for its customers. At said time and place defendant Kenneth Millard was driving the automobile of his father, defendant Rex Millard, for a family purpose upon the parking area, approaching the rope. Mrs. Gardner left Walgreen's and, as she was less than 7 feet from the rope on her way to her car, defendant Kenneth Millard, suddenly and without warning, drove the car into and against the rope, carrying it forward with the car with great force, knocking her down, causing her alleged injuries. The proximate cause of her injuries was the negligence of the defendants in the following particulars: A. As to defendant Kenneth Millard: (a) In driving at a rate of speed excessive under the considerations and circumstances on a parking lot across which he knew or should have known that people would be walking; (b) In failing to maintain a proper lookout ahead and observe the rope; (c) In failing to observe the white rags tied to the rope; (d) In failing to exercise due and reasonable care and caution for the safety of people walking on the parking lot and of Mrs. Gardner in particular. B. As to defendant Moreland: (a) In failing to provide a safe place to walk for Mrs. Gardner, an invitee on its premises; (b) In failing to require defendant AAA to place colored flags at close intervals along the rope so that it could be readily seen by motorists; (c) In failing to require AAA to do its work in such manner that Mrs. Gardner could safely walk from Walgreen's to her car, Walgreen's being a tenant of defendant Moreland's shopping center; (d) In allowing AAA to place a rope across a portion of the parking area where it was not needed in order for it to perform its work. C. As to defendant AAA: (a) In failing to place colored flags at close intervals along the rope stretched across the parking area so that it might be readily seen by approaching motorists; (b) In failing to exercise due and reasonable care and caution in the performance of its work and in particular in the placing and maintaining of the rope for the safety of those persons, Mrs. Gardner particularly, on or about the parking lot; (c) In unnecessarily placing a rope across a portion of the parking area where it was not needed in order for it to perform its work. D. As to defendant Walgreen: (a) In failing to provide safe ingress and egress to the plaintiffs, invitees in its store; (b) In failing to ascertain that invitees to their store could walk in safety across the parking area and thereby discover the hazardous condition created by AAA; (c) In failing to require AAA to place colored flags at close intervals along the rope in order to allow safe ingress and egress to its premises.
Defendants Millard filed answers denying liability and alleging that, on the portion of the rope which crossed the "driveway" in which the defendant driver was traveling, there was attached only one white rag, which was so close to the rear of an automobile parked to his left and which blended into its background as not to be visible to him in the exercise of ordinary care.
Defendant Walgreen filed an answer denying liability and alleging that it had not neglected any duty owed to the plaintiff wife and that any injuries were the result of her negligence, or that of some third party over whom it had no authority or control, or an accident. Defendant AAA filed an answer denying liability. Defendants Millard filed answers to the plaintiffs' interrogatories.
Defendant Moreland filed an answer denying liability and alleging that AAA was performing its contract with Moreland; that AAA was an independent contractor and not the agent, servant or employee of Moreland at the time and place alleged in the complaints; that AAA had the obligation to perform the work called for by the contract and Moreland had not reserved the right, under the contract's terms, to control the manner, etc., of the performance of said work and did not have, or attempt to exercise, such control; that any injuries of the plaintiff resulted from the concurrent negligence of defendants Millard and defendant AAA, with whose negligence Moreland could not, as a matter of law, be chargeable; that no negligence of its own or defendant Walgreen, either concurrent, combined or severally, caused or contributed to the plaintiff wife's injuries. Moreland also filed a cross claim against the other defendants, excepting Walgreen, alleging that any liability which Moreland had, which it denies, is derivative in nature. The defendants Millard filed continuing interrogatories to the plaintiff wife in case No. 44345, to which she filed answers.
Defendant AAA filed an answer to Moreland's cross claim in cases Nos. 44344 and 44345, denying its own negligence and alleging that not only is the plaintiff wife not entitled to recover against AAA, but that if she recovers a judgment against Moreland, the latter would not be entitled to judgment over against AAA for the reason, among others, that her charges against Moreland arise out of the relation between her and Moreland. In the same two cases, the plaintiff wife filed interrogatories directed to defendants Millard and AAA, and AAA filed answers thereto, subject to its objections filed in case No. 44345.
Defendant Moreland filed a request for admissions by defendant AAA, which filed answers thereto subject to objections in cases Nos. 44345 and 44347.
Defendant Walgreen filed a motion for summary judgment based upon the pleadings, depositions and affidavits thereto attached, including the affidavit of its assistant treasurer.
Defendant Moreland filed a motion for summary judgment based upon the pleadings, the depositions on file of both plaintiffs, and the affidavits of J. F. Nutting, Jr., with attached exhibits, and of Lewis Rowen. The plaintiffs' depositions are hereinafter summarized. J. F. Nutting, Jr., d/b/a Nutting and Co., deposed that AAA submitted a bid to him, as agent for Moreland, for the repair of portions of the exterior lighting system at Moreland Shopping Center, which bid was accepted by his company on March 24, 1966; that AAA undertook to do said work as an independent contractor of Moreland; that AAA had the exclusive control over the manner, etc. of the performance of said repair work and neither Moreland nor its agent, Nutting Co., reserved or exercised or attempted to exercise such control; that, under the contract's terms, AAA obtained and exercised such control; and that neither Moreland nor its agent, Nutting Co., had the right or responsibility of hiring or firing, or controlling the manner in which AAA's employees perform their duties under the contract, nor of placing the rope in question. Copies of the bid and the invoice for the job were attached as exhibits thereto. The deposition of Moreland's secretary, Lewis Rowen, corroborated the facts deposed by deponent Nutting, above.
Defendant AAA filed a motion for summary judgment based on the pleadings and the depositions of both plaintiffs. The plaintiff wife deposed as follows: She and her husband arrived at the shopping center parking lot around 1:45 p. m. While they were looking for a parking place, she had no trouble seeing the rope about 3 car lengths away and warned her husband, who had not seen it, not to run into it. She had never previously seen the rope. They parked about 4 car lengths from the rope and walked parallel thereto to a sidewalk of the shopping center, thence at right angles to the rope and then made a 90° right turn and walked along the sidewalk parallel to the rope to Walgreen's, their only stop, where they made some purchases. At about 2:15 p. m., they left Walgreen's, crossed the sidewalk outside it and headed in a straight line between parked cars (she elsewhere deposed that she was walking in an aisleway) for their car. She was carrying her pocketbook and a bag of her purchases and her husband was walking beside her. Their path led them across the rope, which was located about 2 or 3 car lengths from and parallel to the sidewalk in front of Walgreen's, and they went this way because it was nearer than walking around the end of the rope. The rope was a "large," brownish or beige, "grass" one and was stretched between metal lamp posts, with the ends tied from 5 feet 4 inches to 8 feet above the ground and the center, where they attempted to cross it, only 30 inches above the ground. All the rope had on or around it was foot-long, white rags the size of "your finger" tied on it every 3-4 feet for the whole length (she elsewhere deposed that she couldn't see the rope near where the Millard car struck it and didn't know if rags were attached at that point). The weather was cold, clear and windy. She didn't have any trouble seeing the rags or the rope (she elsewhere deposed that "you couldn't see it much"). Her husband stepped over the rope and was going on ahead of her to their car. She stopped and stood about 5-7 feet from the rope, telling him that she wasn't going to cross it there because it was too high. She was looking at the ends of the rope to decide which one was higher in order to cross thereunder when something "whipped" and the rope knocked her 30 feet into a parked car and onto the ground. The driver, Kenneth Millard, came up and told her that he was the one who did it. She never saw the Millard car. There were cars parked between her and it and she didn't know how far away from her it was. She wasn't looking in that direction when she was struck by the rope. It occurred to her that the rope might be intended to prevent people from traveling that way and she guessed that a rope stretched between two posts, with rags hanging from it, was to keep people out. She had noticed that they were digging a ditch in about the middle of the parking area.
The plaintiff husband deposed as follows: Walgreen's is situated in the southern portion of the shopping center, with the parking area north of it. There was a line of stores to the east, perpendicular to the stores on the south side. The rope in question was strung between about 3 or 4 lamp posts about 25 feet apart (yet he also deposed that the rope was only 40 feet long) in an east-west direction, approximately 40 to 50 feet north of the sidewalk at Walgreen's. The white rags, or cloths, resembling torn handkerchiefs, were spaced about every 10 feet along the whole length of the rope, he thought, and measured about 1 by 10 inches. The rope was about 4 feet from the ground at the posts and 30 inches therefrom at the low points. When they went to park he didn't see the rope and his wife called his attention to it about 20 feet from it. He then backed up and parked in the next lane or aisle to the west. The Millard car later came down the same lane that he had first entered. The pavement surface was blacktop and the rope was a brownish color. He noticed that a ditch was being dug about 3 or 4 feet from the rope, between it and Walgreen's, with the rope protecting the worker. They had been to a fabric shop, to the east of the rope, and had parked nearer to that shop before parking in the above-mentioned area. In returning to the car from Walgreen's, he had crossed the rope at about its center and was about 10 feet ahead of his wife and when he looked back he saw that she had been knocked back about 30 feet to the ground, so that he did not witness the actual fall. The rope was not damaged by the blow and was still attached to the two nearest posts afterwards. There was nothing wrong with the pavement surface and the sole cause of her fall was having been struck by the rope. Since the accident, a man, who he believes said he was from AAA, had approached him with a tentative settlement offer of $300 if he wouldn't sue AAA, which offer the deponent had refused.
The plaintiffs filed answers to AAA's motion for summary judgment, supported by the affidavit of defendant Kenneth Millard, who swore as follows: "(1) That at about 2:35 o'clock p. m. on Wednesday, March 30, 1966, he drove a 1962 Pontiac automobile south through a driving aisle in the parking area which is just north of a line of stores at the Moreland Shopping Center. In doing so, he struck a rope. (2) In the area where the rope was strung, the surface of the parking lot was covered with brown earth. The color of the surface of the lot was substantially the same as the color of the rope, and [the] rope blended into the background; that is to say, the brown-colored surface of the parking lot. There were no strips of cloth or flags of any kind within the main traveled portion of the driving aisle. There was one small white strip of cloth to the far east side of the driving aisle, but it was so close to the rear of a parked automobile as not to be apparent to the deponent. There proved to be other strips of cloth upon the rope, but the deponent's view of them was blocked by parked vehicles, equipment, etc. There was no open trench across the road; there were no warning signs; no sawhorses; and there were no other indications of the obstruction of the passageway. The sun was shining brightly and creating a glare. (3) The deponent was driving carefully, slowly, and paying close attention to his driving and what lay ahead, but he did not see the rope before striking it. (4) Shortly after the deponent struck the rope, the man that said he had put the rope up said that people had been hitting the rope all day long. (5) The deponent makes this affidavit of his own personal knowledge and gives it for use in evidence in respect of the motions for summary judgments in the above stated causes."
The court granted the motions for summary judgment of defendant Walgreen, as well as of defendants AAA and Moreland. The plaintiffs and the defendants Millard appeal from the orders of the court granting summary judgments in favor of the latter two defendants in both cases.
1. The question of the standing of defendants Millard to challenge the grants of summary judgments in favor of their co-defendants is rendered moot by the reversal hereinafter of these grants of summary judgments in the plaintiffs' appeals.
2. As to defendant AAA, the pleadings, together with the affidavits and depositions on file, raise the genuine issue of material fact as to its negligence in the placement of the rope, which placement was shown to be its responsibility. It might be found that the placing and maintaining of a single rope, of a color blending with its background, with nothing placed near it or attached thereto to make it easily visible except the small strips of cloth of the size and spacing described, across the driving-walking lanes of a parking area open to the general public, was actionable negligence as to the plaintiffs, invitees upon the premises. Furthermore, it is not necessary that defendant AAA could have reasonably anticipated the particular type of injury which occurred, as long as it should have anticipated from the nature and character of its alleged negligent act that some injury might result as a natural and reasonable consequence of its negligence. Code § 105-2009; Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 696 ( 51 S.E.2d 705), and cit. A jury might find that injury might naturally and reasonably result from such placement of the described rope across an area used both for vehicular and pedestrian traffic. Nor were the plaintiffs so negligent as a matter of law as to bar their recovery. Both from the deposition of the plaintiff husband and the fact that the rope was placed on only one side of the ditch, with the other side exposed to pedestrian traffic, it appears likely that the rope was placed there primarily to protect defendant AAA's employees from vehicular traffic while working on and around the ditch, rather than to prohibit pedestrians, such as the plaintiffs, from walking in, or even across, that particular area.
3. As to defendant Moreland, there is raised a factual issue as to its negligence with regard to the plaintiffs, arising out of its owner-invitee relationship with them and its employer-employee relationship with its co-defendant, AAA. "The employer is liable for the negligence of the contractor . . . [i]f the wrongful act is the violation of a duty imposed by statute." Code § 105-502 (4). The wrongful act here involved might be found to be a violation of the non-delegable duty of the defendant shopping center, as the owner of the premises, to "exercise ordinary care in keeping the premises and approaches safe," which duty is imposed by Code § 105-401.
The trial court erred in rendering the summary judgments in favor of defendants AAA and Moreland.
Judgments reversed. Pannell and Quillian, JJ., concur.