Mоore, a driver for United Parcel Service, appeals the grant of summary judgment to Service Merchandise and its landlord Candler Development Company in his suit for injuries resulting from a fall while making a delivery to Service Merchandise.
Viewed in favor of Moore, opponent of summary judgment, OCGA § 9-11-56;
Eiberger v. West,
When it had rained on other occasions while Moore made his pickup, he waited in the truck and Service Merchandise employees handed him the packages so he did not have to traverse the dock. On the day he was injured, the other employees were involved in unloading another truck and Moore did his own pickup rather than wаit for them. He had already carried one load across the loading dock through the puddle into his truck before he fell on the next trip. He slipped in a puddlе and fell into his truck, injuring his knee.
In order to recover in a slip and fall case, the plaintiff must show that (1) the defendant had actual or constructive knowledge of the foreign substance and (2) plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.
Alterman Foods v. Ligon,
Here, there is no question that Service Merchandise knew of the сondition of the roof and the fact that the loading dock became wet during аnd after rain. Likewise, however, there is no question that Moore also knew about the condition and had, in fact, complained to his supervisor about it. Further, on рrior trips, he had chosen to remain in his truck rather than traverse the area while it was wet. Ac
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knowledging this,
Clark v. Carla Gay Dress Co.,
Thаt case had, as its foundation, the statutory duty of care imposed upon a residential landlord by housing codes and other laws to ensure the safety of his tenant. Withоut that as a cornerstone, the argument of Moore based on Thompson is not applicable here.
There is in plаce, however, a principle developed under the assumption of thе risk theory that applies. “[T]he doctrine of the assumption of the risk of danger applies only where the plaintiff,
with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion,
deliberately chooses an obviously perilous сourse of conduct so that it can be said as a matter of law he has assumеd all risk of injury. [Cit.]”
Myers v. Boleman,
There is no evidence here that Moore was so limited in his freedom of choice. His own testimony was that on previous occasions he had exеrcised that choice and remained in his truck while Service Merchandise emрloyees handed him packages. On this occasion, he chose not to withоut coercion or removal of that option or others by defendants.
“This is a ‘plain, palpable, and indisputable’ case not calling for resolution by a jury.”
Favour v. Food Lion,
Judgment affirmed.