*1 plaintiffs penalties This authorized to award bad faith attorney Coachman, Co. v. International Indent. and Ga. fees. See 224) Any
4. raised in mo- further claims insurer its amended judgment notwithstanding tions for new trial for argued appeal are not been and therefore deemed abandoned. (c); Appeals Taylor, Turner Court of Rule 15 question proper Also, we allo- SE2d cation of the note that the
judgment among plaintiffs is a before us. Appellees impose upon appellant moved this court to
damages appeal pursuant § for a frivolous OCGA Inasmuch 5-6-6. appear any appel- “[i]t as lant does not that there was valid reason for the anticipate judgment, reversal of the court’s ... we purpose must conclude that the to this court was for the delay only. Accordingly, request damages [s’] for award of percent granted.” in the amount of 10 Ins. Hanover Scruggs Co. v. The percent damages trial court is enter directed to of 10 award plaintiffs upon the remittitur. Benham, J., with direction. concurs. affirmed judgment only. concurs in the denied March Lowe, Jr., Sam F. for appellees. Robinson, E.
John for COMPANY, 73399. GLOBE OIL USA v. DeLONG. Benham, DeLong pumps ap- James drove his fuel pellant’s gas self-service station and convenience store. When he pump, tripped truck and walked around to the fuel payment pad, slightly fell over the uneven elevated higher asphalt, joined asphalt. than the and sur- rounding concrete were crushed and cracks. filled with There were no signs alerting or notices customers of the conditions. patronized prior testified fall. The testified she had had he had never station to his of the station on the time uneven, cracked the incident. almost a before of in in the amount a verdict for returned appeal, appellant court erred
$65,000. On trial denying its verdict on motions for directed trial. The conten- new by appellant is that the law in each of its enumerations tion raised *2 recovery. precluded appellee’s favorably upholding “Construing to most the evidence contrary ‘The ba to or the evidence. the verdict was not law injured superior is an invitee who is sis of knowledge of an owner to that sub the owner of the existence of a condition of ject injury. At [Cit.]’ to an risk of the invitee unreasonable (1) (349 lantic &c. Co. v. instrumentality perilous known the owner or oc “It is when the to recovery per cupant person injured known and not to that a Market, [Cit.]” DeKalb Farmer’s mitted. Shackelford testimony by appellant’s former pavement manager for al that the broken had existed impute to most a to sufficient equal appellant Nevertheless, that had knowl Id. edge pave walked across of the uneven had area once. “The mere fact that one has been ment before will not least injuries preclude recovery him from received premises the defect amounts defective a lack of unless failure observe ordinarily prudent person exercise care which an would that Landing, Kreiss v. Allatoona under the circumstances.” 427 (2b) (133 also Shackelford supra. Market, Such is the situation here. testified fall, him when he that while he was what his foot hit to make unsure pavement. fell he saw the cracked and uneven However testimony by occurred, showed former appellant prior knowledge dangerous condi that tions and did under “We cannot that to warn customers. conclusion, a of is de these circumstances that a as matter [appellee] appreciation full have had a of manded that the should ordinary danger, of he should and that the exercise care properly presented injury This, to himself. we think was avoided jury.” Intl. Robinson v. Western Ap applicable Moreover, in this case. distraction doctrine pellee him the die testified tractor trailer trucks surrounded that possible traf where he fell. “A confrontation with vehicular sel pedestrian- property may significant a a ‘distraction’ for fic on the premises.” DeKalb Farmer’s invitee supra Shackelford supra 351; Intl. Hotels at 815-816. re that be excused from otherwise “The doctrine creating emergency quired degree care of circumstances peril . . . The doctrine . . cover recognized. situation [s] natural plaintiff’s situations where the attention distracted cause, particularly and usual and this is true where distraction is placed there by the defendant or where the defendant the exercise ordinary anticipated care that the distraction would should Co., supra occur. Robinson v. Western Intl. at 815. The Hotels [Cit.]” “by evidence authorized a distracted reason present or reasonably anticipated dangers, resulting to be from be ing subjected extremely close to vehicular traffic. [Cit.]” Id. at 816. issue,
2. As to the damages testimony there was sufficient elicited experts gave opinions from medical on appellee’s who their condition. subsequently broke his thumb when he fell and suffered from pain hip. Appellant argues in his side appellee’s hip pain was from a pre-existing condition and not the result his fall. However, appellee’s physician pain experienced by appellee was injury a result of his from the fall. The doctors also testi- past fied “[Qjuestions and future suffering. concerning *3 the amount of damages suffering, past, to be awarded for present and enlightened future are for the jurors. conscience of the We decline judgment upon to substitute our based a cold rec- [Cits.] ord enlightened for that of jurors who heard the evidence and saw the Oliver, witnesses.” Southern R. Co. v. 177 729 App. Ga. SE2d 270) (1986). summary,
“In [appellee] presented evidence of fault on the de- part fendant’s ignorance of the part, hazard and the trial [his] thus properly declined to direct a verdict for [appellant] or grant a motion for new [or Atlantic &c. Co. supra, v. Division trial].” J., Birdsong, McMurray, J., Banke, C. P. affirmed. J., J., P. and Pope, Carley JJ., concur. Beasley, spe- concur cially. J., Sognier, dissents. concurs in dis- sent. Judge, concurring specially. I concur liability ultimately was whether plaintiff exercised safety reasonable care for own his the circum- (92 Hazelwood, stances. Goldsmith v. App. 93 Ga. 468 SE2d Nat., (279 Augusta Cf. Pound v. App. 158 Ga. 166 SE2d This was the first time premises. went to these He see asphalt parking the lot was not smooth and it up.” was “all busted When he fell at the junction island, looking he was pad concrete around smooth looking he not sign pump. Because up gas price feet, which- not the unevenness on placing he was his he did see tripped. he have seen the invitee could not
There no evidence that straining it is walking. if he he was Thus had looked where hazard it, logic proprietor that the he unequivocally that invitee even testified plainly it was visible. The he after fell. ground it he from the glanced could see when superior knowledge, proprietor regard With to the element of i.e., knowledge, what he should charged constructive with Bigelow-San v. known, knowledge. Shannon as as with actual (100 478) (1957). In mea Carpet App. SE2d Ga. ford invitee, charged suring the relative too duty knowledge, relates to his to use reasonable constructive which Hall, safety Amear walking about. care for own why “superior knowledge” That foregone not conclusion this case. his ignorance is also related to the element of invitee’s by his ignorance If is caused failure to danger. the defect and legally justified. see it patent,
look and what determination, total subject given These were matters although itself is a close this evidence relevant question. Toyota, Bell Abercorn Pound, Compare supra, and Shackelford Carley joins special
I Judge am authorized state that this concurrence.
Deen, Presiding Judge, dissenting. majority opinion upon relies such cases as I The cited ntl. in that respect case is correct with to the facts case. “These factors (1) walkway entrance to the narrowing were: at the walkway driveway; *4 slope the 3-to-4 inch toward area; in of vehicular traffic to lighting dim the close hand the booth with ‘no stepup the 16-inch into Ac hold, rail frame to hold onto.’ no or other than door fac cording appellants’ expert, as the result of these ‘hazardous tendency tors,’ person . . would have a coming ‘a out the booth , Robinson, supra . . . end the drive.’ surge forward to those of instant grossly facts there are dissimilar daylight, fell as soon as he These conditions visible. all conditions were evident to all. Augusta Nat., Pound v.
The case of 342) (1981), where the fell on some rocks which were visible and out the open, and where summary judgment granted defendant, is more similar to this case and would seem to control it. I would reverse on the basis of the fact that the trial judge erred denying the motions for directed verdict on liability and failed to enter the judgment notwithstanding the verdict. observed,
As the late Judge Powell is nothing new for us to “[I]t jurisdiction jury to settle the facts is as final as is this court’s jurisdiction law; to determine the and their fact is entitled to the same respect from us as our decision on the law is entitled to doubt, receive from them. And no if reciprocity of criti- allowable, cism were some of our decisions as to the law would seem as absurd to jurors as their finding of facts seem to us in this case. point There is a at which facts cease to be issuable and the jurisdic- tion of is withdrawn for the lack of anything for them to decide; when all the evidence and all the inferences to be drawn therefrom so irresistibly point only way one as to leave ‘scope no legitimate reasoning by jury,’ only and the conclusion deduci- ble from the facts is a matter of which the de- clare. . . .”
I respectfully dissent. denied March Eason, Jr.,
Richard B. Carolyn Kennedy, J. Carlisle,
Linda B. Lane, Charles W. appellee. 73447. CHRYSLER CORPORATION v. MARINARE This is the appearance second of this case involving claims purchaser Chrysler of a van Chrysler committed acts of fraud and breach of warranty. The facts giving rise to the litigation are in our decision Chrysler’s appeal from the judgment entered on the jury’s first plaintiff, verdict Chrysler Corp. Marinari, We Chrysler’s now address entered on a second verdict unfavorable to it.
1. Chrysler enumerates as error the trial court’s denial of its “Motion for Alternative, Directed Verdict or in the Motion for Recon-