Opinion
39890.
DECIDED JANUARY 31, 1963.
Action for damages. Valdosta City Court. Before Judge Connell.
J. Lundie Smith, Edwards Gibbons, for plaintiff in error.
Tillman Brice, B. Lamar Tillman, contra.
The petition brought by an invitee for an alleged slippery substance on a stairway failed to state a cause of action against the occupier of the premises.
DECIDED JANUARY 31, 1963.
This is another "foreign object on the stairway" case. Plaintiff's petition alleged that he was an invitee in the defendant's store; that after making some purchases of merchandise on the second floor he was proceeding to leave the building by means of a staircase between the first and second floors provided by the defendant; that the stairway was divided into three stages; that the plaintiff had descended the first stage and had entered upon the first or second step of the second stage, which was constructed at right angles to the first stage, when suddenly and without warning or notice of danger plaintiff slipped upon a then unknown substance and was injured by falling down the steps; that the plaintiff, after the fall, inspected the steps and found he had slipped upon a quantity of boiled peanut hulls and particles of boiled peanuts, which being upon the stone or marble slabs of which the steps were constructed were so slippery as to constitute an extremely hazardous situation; that the steps and the peanut hulls or particles were of a like or related tone or color which were "not readily discoverable by your petitioner by the exercise of ordinary care and diligence for his own safety; and the said staircase, while not dark enough to cause one to apprehend the presence of danger was not lighted sufficiently to enable your petitioner or any other person in the exercise of that degree of care and diligence usual or required in the circumstances to perceive the foreign particles upon the said steps and to avoid injury therefrom" (emphasis added); "that the tone and color of the aforesaid steps, the inadequate lighting thereof, and the right-angle construction of the staircase were all conditions of which the defendant, over a period of many years, had had full knowledge; and the existence of such conditions and hazards charged the defendant with the duty of keeping the said staircase free from foreign substances and materials and of making frequent and careful inspections of the said staircase to insure that the same was kept in a safe condition for use by your petitioner and other invitees of the defendant."
The defendant's 14 general and special demurrers were sustained. The plaintiff excepted to this ruling.
Under numerous decisions of this court, an occupier of land is not liable for injuries sustained by an invitee upon the premises unless a dangerous condition was created by the occupier or his employee or by a third person, and in the latter case there is liability only after the occupier has knowledge of, or by exercise of ordinary care could have discovered, the hazardous condition, and then fails to use reasonable care to eliminate it. The owner or occupier of land is liable in damages to invitees for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.
The present petition does not charge that either the defendant or its employees placed this alleged slippery substance (boiled particles of peanuts and hulls) upon the stairway nor does the petition set forth that the defendant had actual notice of the presence of these foreign particles upon the steps.
Mere defects in the maintenance of the premises must be shown to have existed for such a length of time or under such circumstances as to put the owner of the premises on actual or constructive notice. Lupion v. Blass, 101 Ga. App. 264 ( 113 S.E.2d 413). Where there is no actual knowledge of the alleged defects and unsafe condition and nothing in the petition to show or indicate the necessity of making an inspection to ascertain the possible or probable existence of any defect, ordinary diligence does not require an inspection, since the defendant has no reason to feel such would be necessary. Cuthbert v. Schofield, 35 Ga. App. 443 ( 133 S.E. 303); McCrory Stores v. Ahern, 65 Ga. App. 334, 340 ( 15 S.E.2d 797). One is not liable for negligence in failing to discover and remedy a danger which he could not have discovered by the exercise of ordinary care or which has not existed for sufficient time to charge him with the duty of discovering it. Savannah East Side Corp. v. Robinson, 102 Ga. App. 426 ( 116 S.E.2d 613); Watson v. Citizens c. Nat. Bank, 103 Ga. App. 535 ( 120 S.E.2d 62); and see Setzer's Super Stores of Ga. v. Higgins, 104 Ga. App. 116 ( 121 S.E.2d 305).
The only possible facts in the petition which could be construed to charge constructive notice is found in paragraph 9 of the petition which charged that the tone and color of the steps, the inadequate lighting, and the right-angle construction of the staircase were all known to the defendant and that the combination of these three facts charged the defendant with the duty of keeping the staircase free of foreign substances and materials and of making frequent and careful inspections of the staircase to insure that it would be in a safe condition for use of the invitees of the defendant.
If the lighting were inadequate, the plaintiff was guilty of contributory fault in proceeding down the stairway which was made hazardous by inadequate lights. The tone and color and right-angle construction of the staircase, we feel, would not be sufficient to raise the duty to make frequent inspections of the staircase. Arguendo, even if there had been a duty to make frequent inspections, the petition does not show that a frequent inspection would have revealed the presence of the slippery substance, for nothing appears to show the length of time the materials were on the stairs.
The petition is fatally defective for yet another reason. It is alleged that the staircase ". . . was not lighted sufficiently to enable your petitioner or any other person in the exercise of that degree of care and diligence usual or required in the circumstances to perceive the foreign particles upon the said steps . . ." (Emphasis added.) Under the circumstances alleged, both the plaintiff and the defendant are held by law to exercise the same degree of diligence. Thus it clearly and affirmatively appears from the petition that the defendant by the exercise of the required ordinary care could not have discovered the alleged slipper matter on the steps.
The trial judge properly sustained the general demurrer.
Judgment affirmed. Carlisle, P. J., and Hall, J., concur.