*1 сharge imprisonment on as a lesser included offense requested false was not warranted kidnapping bodily injury. charge This accompa- since Branham was any Mary the evidence detentiоn Jo presented the element of Under the evidence asportation. nied trial, guilty kidnapping Brown was either the offense There was no the lesser any raising offense. evidence guilty (2) 111) Popе offense. (5) Stovall v. Blackburn, Senior Appellate R. Harold Banke concur. Decided June III,
Chapman & Daniel for Chapman Tommy K. Floyd, Attorney, District for appellee.
A98A0491. FLOURNOY v. HOSPITAL AUTHORITY OF
HOUSTON COUNTY. Judge.
Blackburn, Flournoy James sued Hospitаl Authority Perry Hospital injuries d/b/a for sustained Flournoy when slipped at the The trial court hospital. granted hospital’s motion summary judgment, For the dis- Flournoy reasons appeals. below, cussed we revеrse.
“Summary judgment proper when is no genuine there issue fact and the material movant entitled matter (c). A de law. 9-11-56 novo standard review applies from a grant and we evi- appeal judgment, view the dence, it, and all reasonable conclusions and inferences drawn from light Matjoulis Integon most favorable nonmovant.” Gen. Ins. order to injuries
“[I]n recover sustained a slip-and-fall (1) action, an invitee must the defendant had actual of the hazard; care lacked of the hazard the exercise of despite actions or of the owner/occupier. due to conditions control plaintiff’s evidentiary proof concerning second is not shouldered until defendant establishes — i.e., to a hazard unreasonably exposed self of which Robinson v. known.” care, should have exercise of in the 735, 748-749 Co., 268 Ga. evidence for there was sufficient jury of which hazardous condition was a find that the presented knowledge. Plaintiff defendant had *2 testified expert Combs, architect. Combs an of Peter the by permitted ramp the slope the maximum exceeded of the that the ramp rendering building he did unsafe. the code, standard County adopted build- the standard had not know whether ing through- code force it the standard code, testified that was any Georgia counties that that he was not aware out the south and did not follow that the non-skid coat- He further testified such code. opinion ramp appeared ing worn, that in his been the ramp that, He also testified a hazard. of the was the level of slickness building adopted code, the standard had not if Houston even ramp’s safety. opinion as to the affect his that would not ramp, presumed of the hav- to have Defendant can be continuously ing The fact that it since. it in 1984 and used built supports ramp paint painted a non-skid defеndant an potential hazard. Given aware of the inference that defendant was continuously, ramp it can be inferred that that defendant used knowledge of the worn nature constructive defеndant had actual or summary judg- coating. purposes Therefore, of the non-skid plaintiff of the Robinson ment, test. has satisfied plaintiff’s lack of to the second evidentiary burden on this hazard, Robinson held that negligence not arise “until the defendant establishes issue does the unreasonably exposed — plaintiff plaintiff i.e., that the plaintiff self to a hazard of which the Robinson, care, should have known.” thе exercise guided by supra Moreover, issue must be at 749. our of this liability, issues of Robinson’s directive that “the ‘routine’ plain- plaintiff, i.e., and the of the defendant safety[,] personal not sus- care for tiff’s lack of summary adjudication.” ceptible Id. at 748. plaintiff’s negligence as a that is established
Defendant claims negotiated by previously had matter of law the fact that ramp difficulty. that Defendant reliеs on cases without successfully allegedly dangerous person negotiated “[w]hen a an person presumed previous occasion, to have on a that condition subsequent condition and cannot recover for of that Sing resulting Bros., 226 therefrom.” Williams v. application rule no by ramp danger allegedly posed present resulted in the from a combination of case. The sloрe ramp, that the non- the fact down, skid had worn and the that was wet. It coating ramp fact cannot that individual using be said matter of law would have the combination of these appreciatеd danger posed elements. Lamb v. K-Mart
559) (1985) (“Where the fall caused plaintiff alleges combination of water and a defect in the material the sur- making up fell, face it is upon gain summary which not sufficiеnt merely show that notice of the on the had water surface”).
The fact that had walked wet successfully up the day of the accident cannot be said as a matter of law to have given him аctual the hazard walking Indeed, down the the fact he did ramp. going up wet slip more likely believing to have lulled him into safe than ramp was to have him to alerted its unsafe condition. Plaintiff’s testified exрert seldom people slip going up likely but are more ramp, slip going Therefore, down. it cannot be said that defendant has estab- lished purposes summary judgment, and the court erred granting summary judgment defendant. *3 (454
In
Assoc.,
v.
Place
Manley Gwinnett
cially. Andrews, Smith and Eldridge, concur con- specially. curs in the judgment only. Judge, concurring specially.
Smith, fully I majority opinion by Judge concur authored Black- I Assoс., burn. was the of Manley author Gwinnett Place (454 577) (1995), agree 379 SE2d I with the final para- graph Co., of the majority acknowledging that Robinson v. 268 Kroger (493 403) (1997) Ga. 735 SE2d clearly changed must be cases such as this in unu- applied Mаnley. Except one and circumstances, cases, sual these like the other majority slip- vast cases, fall are now for jury determination.
I Birdsong joins am authorized to state that this special сoncurring specially. Judge,
Eldridge, that several majority, believe entirely I concur While also be addressed. factors should important legal OCGA 51-3-1 of the Americans 1. under legal significance The 1973,1 or Georgia With Disabilities Disabilities Act2 By Use of Public Facilities Persons With Access To & knowledge actual or constructive owner/occupier is that has any safety device mandated any static cоndition the absence Thus, any owner/occupier such premises under Acts. prohibited has to them first liabil such Acts satisfied as subject to ity knowledge “that the defendant had that such invitee’s “superior” [condition]” and such Acts them on notice of knowledge, put dangers because risk of to those individuals within ambit of the possible Co., requirements premises. Acts as to the for the Robinson (493 403) (1997); Alterman Foods Ligon, Ga. SE2d (272 оnce the owner/ SE2d Acts, the owner/occupier occupier purpose the premises. as to all that come on invitees the owner/occupier OCGA 51-3-1. mandates of Acts make prohibited to the invitee as to mandated or superior conditions on the and approaches. se,
2. foregoing apart negligence from separate per and of dependеnt upon purpose coverage which is the law Act’s it satisfies bur protection, although legal (464 Beard, den Keith v. proof.
Bradley Sprinkler Systems, v. Custom
592) (1995); v. Worthy, Central Anesthesia Assoc. 819) (1984); Fidelity Co., Potts v. Fruit &c. Ga. App. 903) (1983). Thus, if the can prоve that he “disabled,” comes then statutory may definition be safety able to se and show that was the per purpose Crownover, of the Acts. 283) Thompson *4 (3) (441
(1989); 195, Biggs Long, App. Judge McMurray am authorized state that joins special seq., L. § Americans With Disabilities 42 USCS 12101 et Pub. No. 101-336 Facilities, 1191.1, Accessibility Buildings Stat. Guidelines for & 36 CFR § A, 648,674; 1973, pp. 45518; amended, 56 FR as 29 USCS (a); seq.; et § § 42 USCS 59 FR 17446. requiring compliance § OCGA 30-3-9 with American National Standards Institute (“ANSI”) specifiсations A117.1-1980. A117.1-1986 or Decided June Lord, Nelson,
Nelson & Ellis M. Sweeney, appel- Harman, Owen, Saunders & Will, David C. lee.
A98A0330. COLE v. THE STATE.
Judge Harold R. Banke. robbery After Alfred Thomas Cole was of armed convicted aggravated appeal, assault, he received life sentence.1 On he chal- sufficiency lenges the of the evidence on both counts. immigrant employed victim, This case arose when the a German parking during at Wal-Mart, walked out to the lot her lunch hour placе opened some trunk, items in her car. As she she noticed a Jeep backing nearby parking place. white Cherokee into a When she closed the trunk and turned back store, toward the Colе stand- ing immediately strap purse. in front of her. He reached for the of her Initially, seeing gun the victim But resisted. after Cole pointed say, hearing at her this,” chest and him “Don’tmake me use relinquished purse. Jeеp she her Cole ran and drove off.Held: argues Cole that the evidence was insufficient establish the aggravated Virginia, intent element of assault. Jackson 443 U. S. 560) (1979). disagree. 307, 2781, 319-320 SC 61 LE2d We prove intent, To the Stаte had to show the defendant intended an places apprehension immediately act “which another reasonable receiving injury.” a violent State, Osborne The victim’s of Cole’s actiоns and pointed gun words when he at her chest and her fearful reaction proof to them refute Cole’scontention that there was no use his weapon generated apprehension rеasonable in the victim. Mat- 235) thews v. Not- “ withstanding contrary, injure ‘[i'Jntent Cole’scontention to the aggravated deadly weapon not an element of assault with when the (a) (2).’ predicated [Cit.]” assault element is on OCGA 16-5-20 Id. reject We must also Cole’s assertion that the evidence of actual robbery. or constructive force was insufficient to establish armed purse by record shows that Cole forced the victim to surrender her pointing gun satisfy her chest. This is sufficient to 16- (a). (1) (b) (355 Eady 8-41 778) (1987). Smith, JJ, aggravated charge merged robbery assault with the armed count.