Coral Park, Inc. v. Guy

Evans, Judge,

dissenting. The majority reverses the jury verdict and judgment for plaintiff. I dissent, because I believe a jury question was presented as to defendant’s negligence.

Plaintiff slipped and fell on a terrazzo entranceway to defendant’s shopping mall in Brunswick. It had been raining, and the entranceway was so constructed that the canopy type roof, open on three sides, did not prevent the fall of rain upon the terrazzo surface. Terrazzo is very slippery when wet, and, for that reason, is not generally used as a walkway for exterior surfaces, such as sidewalks. But it was so used in this instance, as a result of which plaintiff received serious injuries.

We recognize the principle asserted by the majority opinion, that a business proprietor is not an insurer of the safety of his customers. That does not mean, however, that he may create a dangerous situation, or construct walkways, which, when exposed to natural weather conditions such as rainfall, creates an unusual hazard. And where a pedestrian uses such entrance by invitation of the proprietor, and has as much chance of slipping and falling *129as he has of retaining his balance, and does slip and fall, and is injured, a jury should determine whether defendant committed such negligence as would authorize a recovery by plaintiff. Negligence is peculiarly a subject for determination by a jury. See Stukes v. Trowell, 119 Ga. App. 651 (168 SE2d 616); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90 (2) (176 SE2d 487); American Lighting &c. Co. v. Baldwin, 126 Ga. App. 41, 42 (190 SE2d 82).

In clear and cogent language Presiding Judge Hall (author of the majority opinion) in Wakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178), holds: "Issues of negligence, including the related issues of assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence and comparative negligence, are ordinarily not susceptible of summary adjudication whether for or against the plaintiff or the defendant, but must be resolved by a trial in the ordinary manner. ” (Emphasis supplied.) In that case summary judgment had been granted to the proprietor of premises against one who was injured thereon. He sets forth very eloquently and concisely the reasons why a jury should decide whether the proprietor is liable, and states: "A landmark decision of the Supreme Court on this question is found in Wynne v. Southern Bell Tel. &c. Co., 159 Ga. 623, 628 (126 SE 388): 'Where the owner or occupier of premises fails to keep them in a reasonably safe condition for the use of those who go thereon by his invitation, is an invitee who is injured by a patent defect in such premises, of which she has no actual notice, to be held as a matter of law to be lacking in ordinary care in failing to observe the defect in time to avoid the injury? ... It cannot be held that the circumstances were such that an ordinarily prudent person would have reason to apprehend its existence.’ ” P. 262.

I therefore dissent and would affirm the trial court in upholding the verdict of the jury in plaintiffs favor and the judgment entered thereon in favor of plaintiff.

I am authorized to state that Judges Pannell and Quillian join in this dissent.