We granted a writ of certiorari to the Court of Appeals to review its decision in
Girone v. City of Winder,
Mrs. Girone was injured while leading cleaning personnel to the basement of the Girones’ home, which had been flooded with raw sewage that had overflowed from a city sewer line through a basement bathroom hook-up. In an effort to remove the effluent from their home, the Girones had opened the basement doors, thereby allowing the sewage to flow 9ut over the Girones’ concrete patio
1. The Court of Appeals reached its conclusion by making a distinction between dangerous conditions created by means of a trespass upon the property of the person subsequently injured, and dangerous conditions created on the property of the defendant that result in injury to a person who comes upon the defendant’s property. That distinction is without precedent, as “traditional negligence principles” have been applied to such situations in the past. See, e.g.,
Fitzgerald v. Storer Cable Communications,
2. Even if we were to endorse the stringent duty placed by the Court of Appeals upon the creator of danger vis a vis a property owner when a trespass is involved, we could not embrace the Court of Appeals’ holding that only the factfinder can determine whether Mrs. Girone exercised due care for her own safety. Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for her own safety bars recovery for the resulting injury suffered by the plaintiff
(Union Camp Corp. v. Helmy,
“a finding is demanded that her fall resulted from a defective and unsafe condition of the premises of which she was aware; and she is therefore barred from recovery by reason of her failure to exercise ordinary care for her own safety.” [Cit.]
Soto v. Roswell Townhomes, supra at 288.
Judgment reversed.
Notes
There has been no assertion made in the case at bar that the city’s actions were wilful and wanton.
Mrs. Girone’s deposition testimony that she would not have crossed the patio if she had known just how slippery it was infers that she would have followed another course of conduct had she been aware. She also testified that her husband would have had her go through the house (ostensibly to meet the cleaning crew at the unlocked basement door) had he realized how dangerous traversing the patio was. Mrs. Girone could have pointed out the unlocked basement door from the safety of a deck that overshadowed the concrete patio area.
