concurring in part and dissenting in part.
I respectfully dissent from the conclusions reached by the court, except for the conclusion reached in Part V(2) that the district court did not err in finding the Fort Oglethorpe building code to be inapplicable.
My disagreement with the court can be simply stated: I agree with Judge Edgar’s conclusion that
[w]hen boiled down to its essentials, this is not a close case. Wal-Mart was not in any better position than Mrs. Smith to judge the “danger” of the restroom for Mrs. Smith. In fact, Mrs. Smith was far better informed than Wal-Mart as to her own physical abilities. If she chose to use the restroom in the delicatessen despite the fact that it lacked handrails, there was nothing Wal-Mart could have done — short of making all of its restrooms handicapped-accessible, which it was clearly not obligated to do — that could have prevented this accident. Georgia statutory law does not require that all restrooms be handicapped-accessible, as discussed in the previous section of this opinion. Nor is such a rule evident in the case law. As such, the question is whether Wal-Mart “exercised ordinary care in keeping the premises and approaches safe.”
The restroom was indisputably safe. The broken handle on the stall door and the broken toilet paper holder cannot be viewed as creating an unreasonably unsafe condition. The handle is for opening and shutting the door, the toilet paper holder for dispensing tissue. Neither is designed to substitute for grab rails, and although their failure to function in that manner might create an inconvenience, it does not give rise to liability. There is no evidence that there were any other conditions in the restroom that would have rendered it unreasonably unsafe, such as slippery or broken tiles, poor lighting, clutter on the floor, or the like. The only safety “defects” alleged by the plaintiffs are the amount of space in the stall and the lack of grab rails. However, these are not in fact defects at all in the context of a non-handicapped-accessible restroom. Furthermore, Wal-Mart was under no duty to make this particular restroom handicapped-accessible.
The import of the majority’s holding is that a jury is free at any time to conclude that a defendant is negligent not only if every public toilet but also every stall in every public toilet is not equipped with grip bars and otherwise made handicapped-accessible. This same misfortune that occurred here could have occurred if the plaintiff had gone into a restroom with a handicapped stall, but its stall was occupied when she wanted to use it, and so she used another stall.
Similarly, I again agree with Judge Edgar’s conclusion that the reasonableness of the location of the handicapped facility did not present a jury question.
In such a situation, it is impossible to say that any location in the Wal-Mart store was any more reasonable than any other. If Wal-Mart had chosen to locate the handicapped-accessible restroom up front, then she would have had quicker access to it. Would then a handicapped customer in the rear of the store, suddenly overcome with the need to use the restroom, have a cause of action because he chose to use a closer, non-handicapped restroom rather than making the trek back to the front of the store? The statutes do not require multiple handicapped-access restrooms to be scattered through the store, or that all restrooms to which the public has access be handicapped-accessible. Because the choice of placement for the handicapped-accessible restroom was reasonable as a matter of law, Wal-Mart was not in violation of the access statutes. Therefore, as a matter of law, the negligence per se claim must fail.
*299Finally, I find the extended discussion of Robinson v. Kroger Co., 268 Ga. 735, 493 S.E.2d 403 (Ga.1997), to be unnecessary and irrelevant. To begin with, Robinson was a slip and fall case, even if it has been quoted in subsequent eases not involving slips and falls. More importantly for me, however, this is not a case that turns on whether or not plaintiff should have used greater care for her own safety in discovering a defect. This is a case, in my view, in which there was no defect.
I would affirm the judgment of the district court.