Atkinson v. Kirchoff Enterprises, Inc.

Beasley, Judge,

concurring specially.

I concur but not because the proof of superior knowledge was inconclusive. For me, the unresolved question for the jury is whether defendant’s action presented plaintiff with two dangerous alternatives and, if it did, whether plaintiff acted with ordinary care in choosing the course which led to her injury. She was going to Sears, next door, to make a payment on her account during this weekly shopping trip.

Was she negligent in not going out in the busy street instead of *141through the debris across the walkway? Or would prudence require abandonment of her errand at the other store altogether? Did she voluntarily assume the risk of traversing the debris in light of all the circumstances? Although the dissent offers that she could have exited another door at Gibson’s, there is no evidence in the record that such a third alternative route, exiting a door that went to the back of the pharmacy, existed. While the layout was described in connection with a drawing, the drawing is not in the record, so it is not established that retracing her route and then exiting through that door would have avoided the debris. Even if that door was below the debris, there is no evidence it was accessible to her as a means for customer exit. Nor is there evidence that traveling by car was an available means at that point. If it was, was its choice demanded as a matter of law?

It appears that Georgia has not fully articulated the choice of two alternatives theory except in sudden emergency cases. See Everett v. Clegg, 213 Ga. 168, 169 (97 SE2d 689) (1957). As to choice of routes, see Misenhamer v. Pharr, 99 Ga. App. 163, 166 (1) (107 SE2d 875) (1959). The theory is set forth in 65A CJS 75, Negligence, § 122, especially p. 77; 40 AmJur2d 28, Highway, § 558; 57 AmJur2d 746, Negligence, § 344.

It has been recognized in Georgia, however, that one does not assume the risk if one’s freedom of choice is restricted by either circumstances or coercion. Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979). Assumption of the risk involves voluntary conduct by plaintiff. Whitehead v. Seymour, 120 Ga. App. 25, 28 (4) (169 SE2d 369) (1969).

Where plaintiff of necessity must test a known danger, later authority tends towards permitting plaintiff to reach the jury where a necessity to use the “way” taken is shown. See Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984).

Here the act of defendant, in obstructing the sidewalk so as to create a hazard fraught with dangers to the public in its use of the sidewalk, confronted plaintiff with three choices. Whether she acted negligently in choosing the course taken, considering the circumstances and the alternatives, is a matter which should be determined by a jury. That she recognized or should have recognized the danger should not be dispositive; the question still remains, did she act negligently in light of it. As reiterated in Myers v. Boleman, supra at 508, “Questions of negligence, contributory negligence, cause and proximate cause, whose negligence, what negligence, including lack of care in avoiding the consequences of another’s negligence, are, except in plain, palpable and indisputable cases, solely for jury determination.” What amounts to the exercise of ordinary care under the circumstances is a jury question. Hand v. Harrison, 99 Ga. App. 429 (3) (108 SE2d 814) (1959). There is no evidence which absolutely resolves that *142issue as a matter of law. Thus, summary judgment would not be authorized. Manheim Svcs. Corp. v. Connell, 153 Ga. App. 533 (265 SE2d 862) (1980).

I am authorized to state that Judge Carley joins in this special concurrence.