Pinkney v. VMS Realty, Inc.

Birdsong, Chief Judge,

dissenting.

The majority in this slip and fall case, recognizing that much of the plaintiff’s testimony is equivocal, and citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680), construes that testimony in her favor to reverse the trial court’s summary judgment to defendant. Prophecy Corp., however, allows such equivocal testimony to be construed in the party’s favor only if it be reasonably explained. Id., p. 30.

Where the plaintiff Pinkney has attempted to explain her statements further, she says a good deal which is not equivocal, and which does not “reasonably explain” her other testimony, but rather conclusively and unequivocally establishes her own fault in her fall.

She testified: “[I was aware] that there were inclines leading from one level [of the parking garage] to another . . . [and that I was] parking next to an incline or a ramp area where [I parked my] car.” She testified further that she knew there was a ramp next to where she parked or an area with a ramp leading to a different level; she said, “I was right there at the ramp, but I didn’t expect to step off that way. ... [I] knew the ramp was there ... I could see it . . . [but] I was not looking down [at the curb where I was walking]. ... I was aware of the ramp. ... [I] knew there was only a few feet from the position where [I parked my] car. . . . [B]ut I was not expecting . . . a step down curb. ... I wasn’t expecting something just like that. . . .”

To the question: “[E]ven though you knew the ramp was there, you didn’t look down to see where you were going, to see what type of step off or ramp embankment there might have been,” she responded: “No, I didn’t.” She testified that if she had looked down, she could not have seen the drop-off readily, but that she would have seen it *180“[h]ad I looked for it.”

Decided October 14, 1988 — Rehearings denied November 7, 1988 Ellerin & Williams, Irwin M. Ellerin, Osgood A. Williams, for appellant.

*180To the question: “[Y]ou knew that the ramp was there when you pulled into your parking space, right,” she replied, “I was aware of that, yes, I was.” “And you knew it was only a few feet from your car when you pulled in?” “Yes, I saw the ramp there.” “And had you looked down you could have seen the drop-off or the curb onto the rampway?” “I would have to look very closely. ... [I] would have difficulty seeing it. . . . [I would] have to look very closely”; but she admitted that though its appearance blended in with the floor, she could have seen the drop-off, “if I had looked very closely.”

She also admitted that she had seen a ledge drop-off on a ramp in a parking lot before, in several parking ramps, but there would be a guard rail or something to call your attention to the drop-off. In this garage, when she pulled into her parking space she had noticed the ramp to the left of her and could look down to the next ramp, and she was aware that she was “on levels,” and had seen such a drop-off in other parking lots.

Clearly Pinkney was aware of the potential danger in parking where she did, and was in fact aware of the ramp. The fact alone that there was a flaw or defect, i.e., negligence, in the proprietor’s failure to clearly mark the drop-off, does not render him automatically liable for an injury which occurred to one who was aware of the condition or knew it was nearby, but who simply failed to look. Almost any condition could become a hazard if persons fail to watch where they step. For other cases where plaintiffs simply were not careful to look where they were going, see Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538); Taylor v. McDonald, 183 Ga. App. 320 (359 SE2d 1); Emory Univ. v. Duncan, 182 Ga. App. 326 (355 SE2d 446); and Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47 (183 SE2d 7).

Appellant’s contention that even though she may have had knowledge of the drop-off, she did not have full appreciation of the risk involved, finds no favor. She has not alleged any infirmity of mind, nor has she suggested that any special talents would have been required of anyone to avoid stepping onto the drop-off. She simply was not looking where she stepped; this fact distinguishes this case from the cases she cites, Burkhead v. American Legion, 175 Ga. App. 56 (332 SE2d 311); and Pippins v. Breman, 152 Ga. App. 226 (262 SE2d 477). The defendants deserved summary judgment in this case.

I respectfully dissent. I am authorized to state that Judge Sognier, Judge Pope and Judge Beasley join in this dissent.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, Smith, Gambrell & Russell, Jane C. Carr, for appellees.