Opinion
41096, 41097.
DECIDED JANUARY 25, 1965.
Action for damages. Polk City Court. Before Judge Flournoy.
Marson G. Dunaway, Jr., for plaintiff in error.
Rogers, Magruder Hoyt, Dudley B. Magruder, Jr., contra.
A petition alleging that plaintiff customer tripped over a drainage ridge in the defendant's parking lot does not set out a cause of action under the rule of McMullan v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420), Ely v. Barbizon Towers, Inc., 101 Ga. App. 872 ( 115 S.E.2d 616), McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512) and Carmichael v. Timothy, 104 Ga. App. 16 ( 120 S.E.2d 814).
DECIDED JANUARY 25, 1965.
Plaintiff was a customer of defendant and on the day in question went to its store to do some shopping. She parked her car in a paved lot adjacent to the store which defendant maintained for the use of its customers and entered by a door over which it maintained a sign "Customer's Entrance." After transacting some business in the store she left by way of the same door to go back to her car. A drainage ridge across the lot designed to run surface water to the street and away from the store had existed since the defendant came into control of the lot. The ridge was in the shape of an inverted V, about four inches wide at the base and rising about two inches above the other surface of the lot. Plaintiff alleged that defendant knew of the existence of the ridge, that its customers using the parking lot would be walking across it and that it constituted a hazard which might cause them to stumble and fall. There had been no marking of the ridge which was of the same texture as the other area of the lot and nothing was done to warn plaintiff of its existence. The shadow of the building fell across a portion of the lot, which is alleged to have caused the surface to appear to be smooth and uniform and difficult to distinguish defects in it. Plaintiff had no notice of the raised area, and it was necessary for her to keep a lookout for automobiles that might enter the lot because of which she could not keep her eyes constantly on the surface.
On her return to the car plaintiff's foot "was caught by the raised `bump' causing her to lose her balance and fall to the ground" and she was injured.
Seeking damages for her injuries plaintiff alleges that defendant was negligent in (a) maintaining the parking lot with the ridge across it, (b) placing the sign over the doorway of the store inviting her to walk across the lot, (c) failing to remove the ridge, (d) failing to provide warning of the presence of the ridge and (e) failing to anticipate that she would stumble on the ridge and fall.
Defendant's general demurrer to the petition was overruled and the case came on for trial. At the close of plaintiff's evidence a motion for nonsuit was sustained and plaintiff excepts. By way of a cross bill defendant excepts to the overruling of its demurrer.
We deal first with the cross bill. There have been four parking lot cases before this court with situations varying little from that here presented. The first was McMullan v. Kroger Co., 84 Ga. App. 195 ( 65 S.E.2d 420) where it appeared that Kroger maintained a parking lot for its customers across the street from the store, and between the lot and the sidewalk had placed a triangular concrete bar rising above the surface area from 3 1/2 inches at one end to about 6 inches at the other and that the surface of the sidewalk, parking area and concrete bar were of uniform color. Plaintiff, returning from the store to his car with a bag of groceries, did not see the bar, stumbled over it, fell to the ground and was injured. Negligence charged was the failing of Kroger to furnish a safe approach from the store to the lot, maintaining the unprotected concrete bar at a point that was between the door of the store and the parking area, failing to give warning of the existence and location of the bar and maintaining a trap on premises to which the public was invited. A general demurrer was sustained and this court affirmed.
In Ely v. Barbizon Towers, Inc., 101 Ga. App. 872 ( 115 S.E.2d 616) plaintiff stumbled and fell over a 4 x 4 timber that had been fastened with bolts to the surface of the parking lot at the end of the parking spaces for the purpose of stopping of automobiles in a uniform manner at that point and preventing operators from driving against a fence about 3 1/2 feet ahead. The area between the timbers and the fence was used by defendant's tenants and their guests as a walkway. The timbers were laid continuously in a line so that people going to the walkway from cars had to walk over the portion which crossed the spaces between vehicles. Plaintiff alleged that shadows cast by the roof of the parking shed and the vehicle in an adjoining space created an illusion that one might walk into the walkway without obstruction. Negligence alleged was in laying the timbers in a manner so as to obstruct passage into the walkway, failing to cut off the portion of the timbers that obstructed free passage into the walkway, providing an adjoining parking space for a vehicle which obstructed a view of the timbers, failing to warn of the existence of the obstruction and failing to keep and maintain the premises in a safe condition. A general demurrer was sustained and this court affirmed.
In McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512) plaintiff parked her car in the bank's parking lot, entered the bank, transacted some business and returned to the lot to get her car. There were "cement separators" setting apart the parking spaces on the lot rising some six inches above the surface and as she crossed the lot she tripped on one of them and fell. Negligence in maintaining the dividers or separators and in failing to warn of their existence was alleged. A general demurrer was sustained and this court affirmed.
In Carmichael v. Timothy, 104 Ga. App. 16 ( 120 S.E.2d 814) plaintiff, a patron of the defendant, entered its parking lot at night when it was almost filled with vehicles. The lot was lighted only by a street light and this cast shadows over the dark surface, creating an illusion that it was flat and smooth — clear of any objects. In walking from the parked car the most direct route to defendant's place of business was around the front end of the car and across the lot. As she rounded the front of the car she stumbled over a dark log which had been placed on the asphalt area to aid vehicles in parking. Negligence alleged was the allowing of a dark log upon the dark asphalt parking area which was used at night, failing to warn of the presence of the log, to illuminate it, to paint it white or with some luminous substance and failing to place a light on the parking area, thus providing an insufficiently lighted place for parking use. A general demurrer to the petition was overruled, and this court reversed. And see, Bonner v. Barnes, 103 Ga. App. 364 ( 119 S.E.2d 138).
We can see no substantial difference in the situations presented or in the charges of negligence in those cases and that now considered. For the reasons given in them the trial court erred in overruling defendant's general demurrer here.
This ruling obviates any necessity for considering the exceptions in the main bill to the grant of a nonsuit.
Judgment reversed on the cross bill of exceptions; main bill dismissed. Nichols, P. J., and Pannell, J., concur.