430 S.E.2d 139 | Ga. Ct. App. | 1993
Appellee Ruth Pope brought a negligence action against MARTA to recover for injuries she sustained when she slipped and fell on a sheet of ice covering the entrance to the East Point MARTA rail station. Mrs. Pope’s husband was subsequently added as a party-plaintiff and asserted a claim for loss of consortium. MARTA filed a third-party complaint against PCT Services, Inc. (“PCT”), a company with which MARTA contracted to inspect and clean their MARTA stations. In separate appeals, both PCT and MARTA allege that the trial court erred in denying their motions for summary judgment.
Construing the evidence most strongly in favor of appellees as
“ ‘In order for a plaintiff in a slip and fall case such as this to recover, two elements must exist: (1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. Stated another way, liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risk and dangers incident to the known condition. Thus, in cases such as the instant one, where an invitee has slipped and fallen on a foreign substance such as ice, knowledge is the decisive issue and the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.’ . . . [Cit.]” Shansab
Appellees rely on Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982). In Telligman, we found that the corrective measures taken by defendant, including maintenance crews which were present “manually chipping away ice, spreading salt and roping off hazardous areas,” authorized a finding that defendant had at least constructive knowledge of the invisible patch of ice at its business entrance. Telligman, supra at 15. Also, in Nicholson v. MARTA, 179 Ga. App. 173 (345 SE2d 679) (1986), we found that MARTA had constructive knowledge based on its actions in assigning maintenance crews to clear ice and close areas where dangerous icing conditions were present. However, this case is more like Speaks v. Rouse Co. of Ga., 172 Ga. App. 9 (321 SE2d 774) (1984), in which an ice storm struck the city on a Tuesday, and by the following Sunday some of the ice and snow had melted. The plaintiff went to the defendant’s mall, where she stayed for approximately three hours during which time the temperature dropped. The plaintiff slipped and fell on a thin film of “invisible” ice, which was apparently caused by the refreezing of some of the melted snow and ice. After noting that there was “no affirmative duty on the part of [the defendant] to remove the natural accumulation of snow and ice, nor to take actions designed to prevent the possibility of refreezing (depending upon the vagaries of the weather),” we concluded that, unlike Telligman, the facts did not “present a situation in which [the defendant] knew of the potential hazard and [the plaintiff] did not.” Speaks, supra at 11. We again recognize the difficulty of reconciling Telligman with Speaks, see Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985), but conclude that Telligman was expressly limited to its facts recited above, which were deemed “central” to the case. Such facts are not present in this case, and appellees’ argument that MARTA was negligent in not discovering or removing the ice from its premises has been decided adversely to them. See Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193) (1970); accord Hancock v. Abbitt Realty Co., 142 Ga. App. 739 (1) (236 SE2d 860) (1977).
For the foregoing reasons, appellants’ respective motions for sum
Judgments reversed.