Griffith v. Morgan

Felton, Chief Judge.

The principal issue raised by the general demurrer is whether the defendant landowner was negligent in constructing and maintaining on his property, used as a public parking area for doctors’ patients, a curb which is alleged to be six inches high, shaped deceptively and asymmetrically like a quarter section of a circle, extending parallel to and for the length of the building, located between the building and the blacktop parking area, 2% feet from the front porch steps, and painted with a paint of unknown type and unspecified color, so as to make it very slippery.

It is a question for a jury whether the owner of premises has exercised proper care and diligence in keeping the premises safe for those invited thereon, especially when the defective condition is one of such character that reasonable and prudent men may reasonably differ as to whether an injury could or should have been reasonably anticipated from its existence or not. Code § 105-401; Goldsmith v. Hazelwood, 93 Ga. App. 466 (92 SE2d 48); Roberts v. Wicker, 213 Ga. 352 (99 SE2d 84). None of the cases cited to us involving similar factual situations, in which the owner or occupier has been held not negligent as a matter of law, has the same set of facts as the instant case. Each case must rest upon its own facts, of which there is an infinite variety. This case is distinguishable on its facts from Broadview Plaza, Inc. v. Goodman, 116 Ga. App. 738 (158 SE2d 258), in that, in that case, the curb or divider was so placed that it was not necessary to walk over it, it was not asymmetrically shaped or slippery, it did not appear that the plaintiff had tripped on the alleged defect on the divider, rather than merely on the divider itself, and, finally, that plaintiff was in the process or stepping over the divider, rather than stepping onto it, as the present plaintiff alleges she did.

We are of the opinion that the present petition alleges a cause of action arising out of the defendant’s negligence. Whether or not the plaintiff failed to avoid the consequences of the defendant’s negligence, if any, is also a jury question. Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 734 (149 SE2d 527) and bit.

The court erred in its judgment overruling the special demurrer to Paragraph 7 of the petition. Said paragraph does not allege that the defendant’s notice of the other alleged injury was received prior to the plaintiff’s fall, but merely that it was on an “unknown date, soon after the negligent construction of the curb,” which could have been after her fall.

The court did not err in its judgment overruling the general demurrer to the petition as amended, but erred in overruling the special demurrer thereto.

Judgment affirmed in part; reversed in part.

Jordan, P. J., Hall, Pannell, Deen, Quillian and Whitman, JJ., concur. Bell, P. J., and Eberhardt, J., dissent.