*1 al. et al. v. BLONDER et 65002. VIZZINI Judge. Banke, negligence this action brought
Thomas Vizzini and his wife operators apartment complex where against the owners and in reside, negligent allowing they alleging that defendants Vizzini fell property dangerous walkway exist on their a on whiсh Mr. keep failed to injured They himself. contend that defendants only warranty in of premises good repair, thereby breaching nоt statutory duty good repair implied their lease but also 61-111, 61-112, Ann. and 105-401. landlords set forth Ga. Code §§ of consortium. Mrs. Vizzini sued loss here) plaintiffs (аppellants The testified that because full, apartment usually they their front of automobiles, customarily parked apаrtment their owners’ invitation, paved parking concurrence and at their in a area located immediately This area was behind by separated steep from their rear door a rather bank traversed slabs, stones, stepping three concrete which were set into bank pathway at this sloping angles, plaintiffs and the contend that provided reasonable means of access between the and the area.
According plaintiffs, approximately 10 weeks after apartment, рroceeding had moved into the while Thomas Vizzini was leisurely car, pace towards his the second of the three stones it, They moved he weight when on to fall. result, contend that as a he a herniated leg, sustained a fracture of the disc, injuries undergone surgery and other for which he has and other therapy, They allege and for which he is still under treatment. pathway the defectivе condition of was the cause injuries these and that defendants or should have known of the knew summary hazard. The granted trial court defendants’ motion for judgment, and the Vizzinis appeal. Held:
On a motion for the evidence must be movant, strongly against party oрposing construed most and the may fairly reasonably the motion is to all entitled inferences that Boy be drawn in Pest support Georgia of his case. Buchanan v. 752) Co., (287 (1982). moving Control The 161 Ga. SE2d has the elements party negating burden of at least one of the essential issues of opponent’s establishing genuine case and of that no Bacon, Shirley material fact remain. v. 154 Ga.
809) 9) (1980); Gardner, Lawrence v. (1980). element negated defendants here have not essential defendants, in the plaintiffs allege case. Thе care, have known that ordinary exercise of either knew or should existed, alleged anticipated injury hazard should therefrom, have taken measures result and therefore should Theofanidis, County Hospital Auth. v. eliminate it. See DeKalb Breman, Pippins v. 477) Rеalty Hancock v. Abbitt (1979); Chicken, Chatmon v. Church’s Fried App. 739 *2 2) (1974). hand, Ga. the there is 133 326 On other jury evidence which would authorize a to conclude that the superior equal of the condition was or to that Telligman Properties, v. Monumental defendants. See Guild, Keister v. Crеative Arts 880) (1976). evidence, however, The defendants’ does “appellee not demonstrate as a matter of that law did nоt knowledge superior to that of appellant the condition or hazard and fall.” Telligman v. Monumental slip which resulted in the Prоperties, supra, 14, 15. pp. carry movant therefore failed to his burden. law,
Since these issues cannot be resolved as a matter of motion for granted. should not have been Questions contributory of negligence, negligence, and Homes, Cowart v. Five Star Mobile cause are ordinarily jury. for the Hull v. Mass. Mut. Life Ins. 601) (1977). Shulman, Judgment J., Quillian, J., reversed. C. McMurray, P. J., JJ., P. Carley Pope, J., and concur. P. Birdsong Sognier, JJ., dissent. — February 28, Decided
Rehearing — denied March Mary Mann, E. appellants. for
David A. Handley, Hugh Worsham, Jr., M. appellees. Judge, dissеnting. Birdsong,
Though majority opinion recognizes that the evidence of record will accommodate a jury finding that Mr. Vizzini’s knowledge of the condition of the steps leading upper equal to that of the landlord preclude Blonder and thus recovery, oрinion also concludes that does not negate that Blonder did superior knowledge not have of the hazard which resulted in injuries. Mr. Vizzini’s I agree statement,
While with the first agree cannot dispute steps second. The evidence is without that the three were lоts, separating parking the bank as a means of ascent lots, upper and descent between the than lower more twо years earlier; but whom is not shown. The record shows that the steps years were fixed the same during and remained the two change position. undisputed There is evidence that tenants used steps regularly anyone and there is no indication that ever complained steps insecurely to each other or to Blonder that the were placed in ground or were hazardous because of the absence handrails. There was affirmative evidence that the Vizzinis were not anyone aware of dеfects nor suffering aware of ever an injury from using steps. finally The evidence reflects Vizzinis had lived days. new for over 70 At least time, during period days Mr. Vizzini worked five or more each week. He used the lower lot and on each of those descended and steps get ascended three to his car and back to He day admitted that as late as the before the accident time, he was aware of no defect. For the first on the date of the accident, step did the middle tilt injure to fall and shows, himself. So far as the record this also had to be the first notice might be insecure. *3 Contrary opinion, to the conclusion I majority find such wholly persuasive that the landlord Blonder could not have possessed greater knowledge a defect than Vizzini for from the evidеnce there was no known defect until Mr. Vizzini fell. See Pound National, v. Augusta 166, 168 (279 342). Even assuming there have been a hazard not furnishing handrails, Mr. clearly Vizzini had equal knowledge at least such voluntarily hazard and assumed it for more than 70 incident. evidence, On the basis of such I cоnclude that reasonable and rational arising conclusion from the evidence of record is that Vizzini’s condition of the certainly equal and even Thus, to that of in my Blonder. opinion, fully met its negate burden to Vizzini’s right recovery and the trial properly grantеd court summary judgment Sears, Reid, Roebuck & Blonder. Co. v. 532). I would affirm the judgment of the trial court.
I respectfully dissent. am Presiding authorized to state that Judge Judge Sognier, join this dissent.