Opinion
38154.
DECIDED JUNE 13, 1960.
Action for damages. Fulton Superior Court. Before Judge Pharr. December 14, 1959.
B. P. Gambrell, John E. Dougherty, for plaintiff in error.
Hurt, Gaines, Baird, Peek Peabody, W. Neal Baird, Joe Freeman, contra.
The petition having alleged sufficient facts to state a cause of action for injury to an invitee, the trial court erred in sustaining the general demurrer.
DECIDED JUNE 13, 1960.
This is an action to recover damages as the result of a fall on the defendant's property in which the plaintiff was seriously injured. The defendant interposed a general demurrer to the petition and this was sustained by the trial court. On the exceptions of the plaintiff this matter was brought to this court, and the sole question raised is whether the petition sets forth a cause of action for negligent injuries and thus is not subject to general demurrer.
The following facts in substance were alleged by the plaintiff: The defendant owned and operated a building and adjacent parking lot in the City of Atlanta. The plaintiff was an employee of a tenant in the defendant's building, and this tenant was assigned a parking space in the parking lot which was owned and maintained by the defendant. As an employee of the tenant, the plaintiff was authorized to use the parking space during such time as he was in Atlanta. The plaintiff was a salesman and was "in town" most of the time and was engaged in work in Atlanta at the time of the injury. The parking lot wherein the injury occurred was of sufficient size to accommodate the parking of about 10 automobiles and was sloping in nature at an angle of about 30°. At the edge of the parking lot near the portion assigned to the plaintiff was a small embankment about 2 or 3 feet in height, the surface of which embankment consisted of loose, loamy, light gray soil of the same color as the surface of the pavement of the parking lot. There were bushes on the bank 4 or 5 feet in height which tended to make the parking area assigned to the plaintiff more difficult to see clearly. At about 9:15 on the morning of the accident in which the injury occurred, the plaintiff arrived and stopped his automobile in the parking area assigned to his employer. On this morning it had been raining and loam from the bank had been washed over the area of the parking space where he parked. This loam held water from the misting rain and created an ice coating over the pavement of the parking space assigned to the plaintiff. The area where the plaintiff fell had a thick loamy coating over the ice, and this condition was difficult to see because of the bushes along the bank of the parking lot. The loam which washed down upon the parking lot was of the same color as the surface of the parking lot and the area was slick when wet even in non-freezing weather. On the morning of the accident the combination of the water, loam and freezing condition made the area more slippery and treacherous to one attempting to walk over it. This condition causing loose loam on the embankment and the flowage of the water from the bank onto the pavement, causing the slickness, had been existing for many months. On the morning of the accident the condition of the ice, rain water, and frozen slick loam had been in existence for 3 or 4 hours or more. The plaintiff did not know of the condition of the parking area assigned to him, and such condition was not apparent on casual observation but could have been seen only on pausing and on a close studied inspection with concentrated attention. Nor did the plaintiff have any knowledge of the condition of the parking area which had existed for several months and no knowledge whatever of the fact that the icy condition existed. Immediately after the plaintiff stopped and parked his automobile, he opened the door and stepped out, and before he had gone more than one or two steps his right foot slipped out from under him causing him to fall violently to the paved surface of the parking area and causing serious and permanent injuries. The defendant knew, or in the exercise of ordinary care should have known, of the dangerous condition on the parking lot resulting from frozen water mixed with the slick loam, and several of the employees of the defendant and one or more of the executives of the defendant employed in the building had parked on the parking lot and had walked over the ice-covered parking spaces near the parking space of the plaintiff that morning prior to the time the plaintiff parked his automobile. In spite of the fact the defendant knew, or in the exercise of ordinary care should have known, of the condition of the parking lot, defendant failed to remove it or to put an abrasive substance on the surface of the ice to render it safe for persons walking over it. The defendant was negligent in operating the parking lot without providing sufficient protection against the flowing of the slick loam onto the parking area during rains, in failing to inspect the parking area, in failing to discover the extent of the slick wet loam on the surface of the parking lot, in not keeping the loam removed from the surface of the parking area, in failing to inspect the area, in failing to discover the extent of the ice on the parking lot on the morning of the injury, in failing to remove the ice from the area on the morning prior to the plaintiff's accident, in failing to place an abrasive substance on the ice, and in failing to put up a warning sign.
These negligent acts are claimed to be the cause of the injuries sustained by the plaintiff and other assertions are made not relevant in the consideration of the superior court judge's order in sustaining this general demurrer.
Where the owner 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 those persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. Code § 105-401. In the present case the plaintiff, being an employee of a tenant of the defendant owner of the property, was an invitee within the meaning of the law here applicable. See Roberts v. Wicker, 213 Ga. 352, 354 ( 99 S.E.2d 84). There is no question but that the defendant owned and maintained the parking lot wherein the plaintiff sustained the injury. There further is no question but that the plaintiff was on the premises for a lawful purpose, and therefore the only question raised by the demurrer is whether or not the petition shows the owner failed to exercise ordinary care in keeping the premises and approaches safe, or that the actions of the plaintiff as shown by the petition, as a matter of law, negatived any cause of action for the injuries sustained by him.
The facts as alleged clearly show a dangerous condition on an extremely sloping parking lot; that such condition had existed for several months and that the increased danger caused by the icing conditions on the particular morning of the accident had existed for several hours prior to the injury of the plaintiff. It is further alleged that the loamy bank and the bushes on it made it difficult to observe the condition of the parking space where the plaintiff was authorized to park and that the slippery loamy washings from the bank were of such a texture and color as to make it difficult to distinguish the area covered by the loam from the clear surface. The plaintiff alleges that he had no knowledge of the condition of the parking lot and that its condition was such that it would have taken special attention to discover the true dangerous condition of the surface. The plaintiff further alleges that the condition of the lot for several months and the condition of the lot on the morning of the accident were known by the defendant or reasonably should have been known, and that several employees and executives of the defendant had parked in the small area of the parking lot on the morning of the accident. The plaintiff further asserts that the defendant was negligent in not taking some action to warn of or to alleviate the dangerous condition of the parking lot on the particular morning of the accident when the plaintiff sustained the injury.
Whatever the result might be, had the plaintiff based his claim only on the icy condition on the morning involved, it is clear that in this case the petition is alleging not only the icy condition but the slipperiness caused by a loamy soil being washed during rains onto the surface of the parking space, which condition is alleged to have existed for several months unknown to the plaintiff. This is a matter which calls for an evidentiary consideration.
Although the law of the responsibility of owners to invitees on their property may seem at times to place an inordinately heavy burden on the owners, and although the trial of this case may lead the jury to conclude that the plaintiff's negligence may bar him from any recovery, yet it cannot be said as a matter of law that the facts as shown by the petition do not present a question for the jury as to whether the owner failed to exercise ordinary care in keeping the premises safe as required under Code § 105-401, nor may they be taken as establishing that the conduct of the plaintiff was such as to show no right to relief when being considered on general demurrer. Martin v. Henson, 95 Ga. App. 715, 736, 737, and 739 ( 99 S.E.2d 251); Woolworth Co. v. Wood, 32 Ga. App. 575 ( 124 S.E. 110).
The order sustaining the general demurrer is
Reversed. Gardner, P. J., Townsend, Carlisle, Nichols, and Frankum, JJ., concur. Felton, C. J., dissents.
Construing the petition most strongly against the plaintiff it seems to me that it alleges that the basis of the action is the violation by the defendant of a duty to exercise extraordinary care. Paragraph 10 of the petition alleges: "Said condition of ice mixed with slick loam on said paved surface of said parking space was not apparent to one at that location on casual observation but could have been seen only on pausing and on close studied inspection and concentration of attention." While this paragraph expressly covers only the two extremes of care, the last statement means that the dangerous condition could not have been discovered by the exercise of ordinary care. If it could have been discovered by ordinary care the plaintiff is barred by his negligence. On either horn of the dilemma the petition does not state a cause of action.