Atkinson v. Kirchoff Enterprises, Inc.

Banke, Chief Judge.

The appellant sued to recover for personal injuries she allegedly sustained when she slipped and fell outside a store owned by the appellee. She appeals the grant of the appellee’s motion for summary judgment.

The appellant entered the appellee’s store to have a prescription refilled and while there noticed that the appellee was undertaking a remodeling project. She exited with the intention of walking to another store located in the same shopping center but found the sidewalk blocked in that direction by a pile of construction debris. This debris, consisting of shelving and other material, had been placed on the sidewalk in connection with the appellee’s remodeling project.

The appellant testified that she decided to attempt to traverse the debris rather than go around it because the latter alternative would have required her to walk into the street, which she described as heavily trafficked. She stated that the prospect of walking through the debris “was not an attractive one” and that she knew she would “have to be careful” in doing so. She maintains that she nevertheless slipped and fell on a sharp object while attempting to negotiate the debris, thereby injuring herself.

In determining that the appellee storeowner was entitled to summary judgment, the trial court found that the appellant had presented no evidence “that the [appellee] had actual or constructive knowledge of a danger” but had admitted “at least constructive knowledge [on her own part] of the existence of a hazardous condition. . .” Held:

In order to establish a right of recovery against a storeowner for negligently allowing a hazardous or defective condition to exist on the premises, a plaintiff-invitee must prove that the owner had superior actual or constructive knowledge of the existence of the condition and of the danger presented thereby. See generally Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906-907 (81 SE2d 721) (1954); Speaks v. Rouse Co., 172 Ga. App. 9, 11 (321 SE2d 774) (1984). However, to prevail on motion for summary judgment, the defendant in such a case, as movant, has the burden of proof and thus must establish the absence of such superior knowledge on its part, with all doubts and conflicts in the evidence being resolved in favor of the plaintiff. See generally Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). Sealy v. Western Broadcasting, 168 Ga. App. 493, 495 (309 SE2d 633) (1983).

Although the plaintiff-appellant in the present case was obviously well aware both of the existence of the construction debris and of the need to exercise caution in attempting to traverse it, it does not follow that she was fully aware, as a matter of law, of the full extent of *140the danger involved in doing so. It has repeatedly been held that “mere knowledge” of the existence of a dangerous or defective condition does not necessarily constitute “full appreciation of the risk involved.” See, e.g., Scott v. Rich’s, 47 Ga. App. 548, 551 (171 SE 201) (1933); Goldsmith v. Hazelwood, 93 Ga. App. 466, 469 (92 SE2d 48) (1956); Pippins v. Breman, 152 Ga. App. 226, 228 (262 SE2d 477) (1979). Indeed, there was a specific finding by the trial court that although the appellant knew the debris was on the sidewalk, “she may not have known of the dangerous sharp object concealed in the debris on which she stepped.” Thus, the present case is distinguished from such cases as Forde v. C & S Ga. Corp., 178 Ga. App. 400 (343 SE2d 164) (1986); White v. Fred F. French Mgt. Co., 177 Ga. App. 661 (340 SE2d 276) (1986); Westall v. M & M Supermarkets, 174 Ga. App. 155 (329 SE2d 237) (1985); and League v. Marshall, 169 Ga. App. 32, (311 SE2d 192) (1983), wherein the plaintiffs’ injuries resulted from contact with structural fixtures whose presence was both obvious and static.

The appellee, on the other hand, may reasonably be presumed to have had at least constructive knowledge of the contents of the construction debris and the danger presented thereby, since it was responsible for placing the debris on the sidewalk. Compare Rogers v. Atlanta Enterprises, supra; K-Mart Corp. v. Spruell, 173 Ga. App. 884 (328 SE2d 577) (1985); McGrew v. S. S. Kresge Co., 140 Ga. App. 149 (230 SE2d 119) (1976). It is well-settled that issues of negligence, diligence, contributory negligence, proximate cause, and assumption of risk are not to be decided by the court as a matter of law except in plain and indisputable cases. See, e.g., James v. Sears, Roebuck & Co., 140 Ga. App. 859 (232 SE2d 274) (1976). The evidence of record in the present case does not establish indisputably that the appellant’s knowledge of the danger involved in attempting to walk through the pile of construction debris was equal to or greater than the appellee’s. Consequently, the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Benham, J., concur. Carley and Beasley, JJ., concur specially. Deen, P. J., Birdsong, P. J., Sognier and Pope, JJ., dissent.