*1 744 State, Donner v. Compare that he was
bеen informed
free to leave.
responses
His
trooper’s
to the
himself,
request,
trooper
as recounted
clearly manifested a re-
part
his
give
circumstances,
luctance on
his consent. Under these
by asking
if
up
he would
going
“mind
the road and let-
ting
drug dog
your
check
car” in
inquiry
answer to his
regarding
if
happen
search,
what would
he refused to consent to the
trooper
obviously
insinuating
only
was
that this was his
option,
which is
precisely
appellant says
how the
interpreted
reasons,
it. For these
would hold that
the state failed to meet its burden under Florida v.
Royer,
229)
460 U. S.
(1983),
SC
75 LE2d
showing
appellant’s
consent
freely
“was
fact
voluntarily
given,”
product
rather
than the
of “mere submission to a claim of
authority.”
lawful
I am authorized to state Judge Cooper joins in this dissent. July Decided 199 July Reconsideration denied 199 Eddings, Collins & Eddings, Michael R. Bailey Bearden, & J. Bearden, Lane appellant. for Wilson,
Darrell E. Attorney, District appellee.
A91A0559. HAIRE v. CITY OF MACON.
Sognier, Judge. Chief Clayton Monroe brought Haire against suit of Macon Georgia (“4-H 4-H Foundation, Club”) Clubs Inc. seeking dam- ages he incurred slipped when he and fell at 4-Ha Club hog show held at a facility owned Haire 4-H dismissed Club prejudice. without The trial granted City’s court summary judgment, appeals. and Haire
We reverse. The evidence established that show wаs attending was held in building constructed to 1900 which was being used as a show barn. appellant’s It was first visit to barn, and he had never before traversed on which he fell. It uncontroverted that had been years built more than 30 appellant’s before fall and had not been ramp, altered since 1959. The which filled doorway connecting two buildings, wide, feet 15 inches at highest point, its long. 67 inches was con- structed of smooth surfaced concrete steep slope at a and had no handrail. There signs pedestrians were no warning about Although the roof, was under a at the time of fall it mud, wаter, it. and straw on
Appellant testified that show crowded with people walking six twelve inches behind mother. He when slip stated that he was ahead he saw mother slipped step then himself on his first ramp, although he not know he was on until was falling. did testi- *2 although that the of fied amount mud and water was “usual” a for show, very the mud and water on the made it slippery. He also testified that he knew he was in a barn and had be careful. Appellant acknowledged nothing that there was in the area that dis- his attention. tracted accident,
It is appellant’s uncontroverted that the аnyone received injured had no notification that had fallen or been way any using while
Appellant witness, produced expert the affidavit of his John Hutchinson, who averred that was a hazardous condition presenting unacceptable an unreasonable risk of and serious рersons using that it and constituted such a hazardous con- mud, water, presence dition even without of thereon other for- (1) eign gave substances. He ramp’s slope four reasons: was too steep because was of every it a rise one inch for and four one half inches, аny slope greater every eight than one for inch inches was (2) safe pedestrians; not for surface of the was too smooth (3) by pedestrians; and slick for safe use the ramp had no handrails being in excess of 88 inches wide should have had handrails on (4) handrails; both sides and intermediate there were no mark- ings or other signs pedestrians they warn that a approaching were ramp. In deposition, applied explained Hutchinson South- Building ern promulgated Code standards the ramp 1986 to not did know what were in standards effect at the time the was However, construсted. professional opinion, he testified that in his ramp “was ramps you so out the norm of in the that see ’70s and — and, now, ’90s, the ’80s . . . my that I I guess just gosh, was just opinion was In his overwhelmed.” so was bad that easily could it “very surprised” see as a of an cause accident when told had there been no accidents. by granting appellee’s contends the trial court erred summary judgment genuine because issues of material fact appellee
remain whether negligent maintaining that smooth, steep, was too warnings. Appel- too and lacked handrails and having lant bases his negligence, claim common law conceded brief negligence per arising has no se claim ramp’s any building noncompliance with codes building because legal any noncomplying applicable use and not in violation of Mathison, (1) See Garnett v. statutory provision. nеgligence theory, “For to recover under a common law premises, appell[ee]’s there must have been a defective condition on appellee which defect the cause of fall and which superior knowledge. The law is clear that the basis for an [Cit.] liаbility injury occurring to another on the owner’s while owner’s property superior knowledge danger is the of the or defect owner’s injury. ground which proximate was the cause of The true of lia- bility perilous is proprietor’s superior instru- mentality persons upon danger going prop- аnd the therefrom to erty. perilous instrumentality It is when the is known to the owner or occupant injured known to the person recovery per- and not is (Punctuation mitted.” and citations at 242-243 Id. “ ‘(A)n occupier owner or is liable to land invitees dangers sustain as a of his warn result failure to them of whiсh he was aware of, or in the reasonable care should have of not (Cits.) However, person expected known. to foresee and warn against dangers reasonably expected, which are not and which would not except exceptional occur under frоm unexpected circumstances or (Cit.)’. person injured. acts of the . . v. Theater Zellers [Cit.]” *3 Stars, 553) (1984). 171 App. Ga. 407 In Zellers, although the defendant had controlled auditorium year for six years, injured weeks a over 13 no one ever been had by plate glass breaking therein in the auditorium doors. Because of the lack of we injuries, held that the defendant no actual knowl- auditorium, edge that of by containing plate the doors the glass (1), safety glass, rather than dangerous, were id. at 407-408 and that in the plate absence of the glass, caused there was no evi- dence to duty insрect show or indicate that defendant had a the premises to dangers plate discover and warn of the existence of the of “ (2). However, glass doors. Id. 408 summary judg- at ‘[o]n ment the light evidence is viewed in respon- a most favorable to the dent, respondent given every and the is the benefit of doubt.’ [Cit.] The movant prove any genuine has the burden to the of non-existence (OCGA 9-11-56), issue of fact determining, material and in so the § respondent’s court will paper indulgence. treat the with considerable Jenkins, 339) (1986). App. Mallard v. Ga. [Cit.]” Hutchinson in professional opinion testified that the was a condition, hazardous deviating so far from the norm that established it was “overwhelming” “absolutely” easily and that it could be seen as cause in the of an accident. There thus the some evidence record reasonably from which it the despite could be inferred that absence of prior accidents, in obviously issue was so a defective condi- tion that its danger was visible and should have been discovered inspection the exercise of type of care even without that Zellers, glass safety glass, supra, in distinguish plate as could risers, slight height deviation in the of as Chisholm Fulton 540) (1987), Co., Supply and accord- Ga. reasonably ingly appellee was a could have foreseen and danger ex- pected. “ Summary Judgment ‘The Act does not authorize the trial court sit judge jury, weighing deciding as both evidence and is- (Cit.) traditionally that are for thе The sole function of jury. sues rather, is, summary judgment on a motion for to determine court (Cits.) of In genuine whether there exists issue material fact. instant case it that Collins v. is clear such issues exist.’ New- [Cit.]” Co., man Machine
Given the testimony concerning conflict between Hutchinson’s obviously hazardous сondition of the and the inferences to be accidents, question drawn from of the absence fact exists whether appellee, here was a defective condition which the exercise in keeping care its safe the more years than 30 premises, it has owned the knew or should have known would cause an invitee. OCGA 51-3-1. §
We have reviewed evidence regarding record whether appellant’s fall was due to a defect or to itself the mud and water on the appellee and do not with that the evi- so clearly dence established appellant slipped only because of the mud and water that it was summary judgment entitled to as a matter Likewise, law. in view of familiarity total with testimony barn and his regarding severely crowded conditions in the building, cannot agree appellee law, we a matter that as defect or that failed exercise ordi- nary care on “Questions his own behalf. as to diligence negli- gence, including contributory negligence, being questions peculiarly jury, except will in plain court decline to solve them indisputable upon cases. It was not incumbent to exercise of carе which absolutely prevented inju- would have (Citations punctuation ries.” Co., v. Southern Wall R. (2) (396 *4 App. 196 Ga.
Judgment J., Banke, J., reversed. P. P. McMurray, Carley, Pope JJ., Cooper, Birdsong, J., Andrews, Beasley concur. P. JJ., dissent.
Andrews, Judge, dissenting. majority correctly
The ground states that the true the owner’s liability in slip superior to an invitee cases and fall is the owner’s knowledge proximate of a condition or cause of hazard was the Thus, injury. the invitee’s “if invitee condition or his knows of the hazard, duty there is to warn the part proprietor no liability resulting injury the invitee is no because invitee and there has as (Citations punc- proprietor knowledge does.” much as George App. Auth., v. L. Smith &c. 197 Ga. Froman
tuation 413) (1990). 338, 339 present alleged inclined In case the hazard was an years. During for over 30 had existed unaltered on the which that City any that the as owner had notice time there is no evidence present any incident. In on the to the of order to establish dition fall or City necessary knowledge of a con- that the had the appellant produced expert injury, or hazard that caused his slope, ramp, steep because of its smooth who testified that the witness slippery handrails, surface, accident, condition at the timе of the patently constituted a obvious hazard of which expert Given that the own or should have been aware. produced appellant hazard, or evidence that the the was an obvious defect why, by position having explain ordinary knowledge care, it, he did not seе and have as much patent hazard as the
Although appellant deposition slipped testified slippery, he also fell because mud and water on the made it any stated that he did not see the or mud and water before he taking step explained fell walking his first onto the He thаt he was
about six to twelve inches behind his mother crowded con- pre- people ahead, him ditions and that the around muddy seeing. him vented He knew conditions existed at the requiring walking. majority that he be careful As the show notes, he also testified there were no “distractions” which diverted his attention.1 majority concludes that was not familiar because area, conditions, and was crowded cannot as a matter defect,
of law that the or that tending failed to exercise care. There is no evidence to show anything patently long-standing that the obvi- than a premises. words, ous and observable condition on the structural condition whose In other it was a presence obvious, was both static and dis- exercising ordinary Reames, cernible to those care. Harmon v. 188 Ga. 539) (1988). App. 812, This is not a latent defect case despite that, claims of the observable where invitee fully appreciate danger. conditions, Com- SE2d he could not the inherent pare Enterprises, Atkinson 181 Ga. Kirchoff suggest rely upon theory that a lesser of caution does not he was distracted under the circumstances was sufficient to constitute care because Stores, Magee Dept. v. Federated by somethign proprietor. Compare, e.g., attributable to the *5 477) (1986). Rather, appellant prevented claims he was from seeing walking hazard because he a crowd.
I cannot majority question that a of fact remains ordinary as to whether care exercised under these circum required an Although inspect stances. invitee is not to to defects, defect, every patent discover latent nor even to observe neither is an safety, the owner insurer of the invitee’s invi “[t]he safety must also ordinary by tee exercise care for his own and must same care occupier’s avoid the effect of the owner or him, negligence apparent when it becomes to or in exercise of or dinary Hall, care should have learned of it.” Amear v. 164 Ga. [he] 611) (1982); Campbеll, Fowler v. 191 Ga. App. 872 cannot recover on the ba City’s superior hazard, of the knowledge sis if condition or equal superior caused his failure to exer ordinary to cise care discover the condition or hazard. exercise of ordinary require continuously care dоes not invitee to scan the defects, possible floor depends but on all the circumstances at the place. Pinkney Realty, v. time and VMS 189 Ga. App. 90) (1988). Only palpable plain when the facts are so finding demand a as a matter law that one has failed to exer safety
cisе for one’s will summary judgment ap care own be Folks, Dobbs, propriate. Inc.
Here, appellant was in an unfamiliar area on floor he knew muddy which, slippery. be in a Moving people, crowd of admission, him prevented seeing him, own in front of floor proceeded, neverthеless and was when forward stepped water, onto the mud covered with and fell. Pro- ceeding is, blindly law, under these circumstances as a matter of fail- ure care safety. Accordingly, for one’s own affirm grant summary would the trial court’s judgment I am Presiding authorized state that Judge Birdsong joins this dissent. July 11, Decided 199 July 30,
Reconsideration denied 199 Adams, Hemingway, Adams & P. & Shepard, William Rentz Danny S. Shepard, appellant.
Chambless, Higdon Carson, Richardson, & Thomas F. Robert E. Little, for appellee.