Atkinson v. Kirchoff Enterprises, Inc.

Sognier, Judge,

dissenting.

Appellant exited one of several doors to appellee’s store with the intention of walking down the sidewalk to the neighboring Sears store. The 8 to 10 foot wide sidewalk which fronted appellee’s store was abutted by a row of occupied parking spaces. Beyond the parking spaces was a well trafficked road. A 15-foot span of the sidewalk in between the door where appellant exited in the direction of the Sears store was littered sporadically with shelving and other building materials from a remodeling project in appellee’s store. Appellant decided “to pick” her way through the scattered building material and began walking on the debris. Appellant stepped on a sharp object in a pile of building debris which pierced the open toed sandals she was wearing, causing her to fall. Appellant sued.

The majority reverses the trial court’s grant of summary judgment in favor of appellee on the basis that because appellant was not aware of the sharp object present in the building debris, her knowledge of some danger involved in crossing the building debris did not constitute a full appreciation of the danger appellant voluntarily undertook. The specially concurring members of the Court would reverse on the basis that appellant did not voluntarily assume the risk but instead was coerced by “necessity” into testing a known danger. I cannot agree that either theory fits the facts in the case sub judice and therefore I respectfully dissent.

“ ‘ “The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.’” [Cit.] ” Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (288 SE2d 846) (1982). See also Thomas v. Fabric Outlets, 169 Ga. App. 175, 176-177 (311 SE2d 852) (1983). The majority reasons that because appellant did not know of the specific danger posed by the sharp object in the building debris, her “mere knowledge” of the existence of the danger posed by the debris did not constitute “full appreciation of the risk involved” in traversing the debris. The record reflects that appellant saw and recognized the nature of the debris on the sidewalk and acknowledged the need for care in traversing such material. “[T]he evidence shows the plaintiff was well aware that the *143concrete [sidewalk] was covered with heavy [building debris], and by walking thereon she assumed any risks incident thereto and was guilty of such lack of ordinary care for her own safety as would prevent a recovery. [OCGA § 51-11-7]. . . . While, ordinarily, knowledge of a defect is not necessarily knowledge of danger inherent in the defect [cit.], we think that knowledge of loose [building debris] in a concrete [sidewalk] is obviously knowledge of probable danger of [encountering sharp objects and] slipping when walking thereon.” Wade v. Roberts, 118 Ga. App. 284, 287 (163 SE2d 343) (1968). See Bowman v. Richardson, 176 Ga. App. 864, 865 (338 SE2d 297) (1985) (actual knowledge of risk posed by slippery manhole not necessary where plaintiff aware entire sidewalk was wet). In the absence of any evidence to the contrary, it is presumed that appellant is a person possessing ordinary intelligence to whom the risk attendant upon traversing building debris would be clearly obvious. See City of Rome v. Baker, 107 Ga. 347 (33 SE 406) (1899) (risk of walking down plank spanning sidewalk construction); see Smith v. Bel-Arbor, Inc., 121 Ga. App. 739 (175 SE2d 146) (1970) (risk of walking down recently mopped floor). Thus, in view of appellant’s knowledge of the danger posed by the accumulated construction debris, I cannot agree with the majority that appellant’s lack of actual knowledge of the particular sharp object in the debris means appellant did not fully appreciate the risk she undertook.

The cases cited by the majority, 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) and Pippins v. Breman, 152 Ga. App. 226, 228 (262 SE2d 477) (1979), for the proposition that mere knowledge of the existence of a danger does not necessarily constitute full appreciation of the risk involved, are not applicable here. Persons of ordinary intelligence have, by habit and practical experience, come to recognize and appreciate various commonplace hazards associated with modern living. One of the most familiar of these daily hazards is staircases. Stairs, unlike piles of construction debris, are not in and of themselves dangerous and an appreciation of some risk in traversing stairs is not necessarily a full appreciation that a particular step has been worn slick (Scott, supra), or that tears are present in the carpeting on the step (Goldsmith, supra), or that an inordinate amount of rain water has accumulated on the landing of a staircase (Pippins, supra). In the case sub judice, appellant was not lulled by any everyday familiarity with building debris on sidewalks into subconsciously acknowledging but consciously ignoring the imminent danger traversing such debris posed. It is for this reason that I find Scott, Goldsmith, and Pippins, supra, distinguishable.

Furthermore, the record is devoid of any evidence indicating that appellee’s knowledge of the specific danger lurking in the building *144debris was superior in any respect to that possessed by appellant. Both parties knew the debris on the sidewalk was composed of building materials from the remodeling project in appellee’s store. Although appellee, as the party who placed the materials on the sidewalk, may have had constructive knowledge that the building debris contained objects which when stepped upon could pierce the soles of open toed sandals, appellant’s knowledge of the contents of the debris was equal, if not superior to appellee’s, considering that she was in a position to observe the dangerous makeup of the debris, to probe the material before treading upon it and to take appropriate care. Although the equal knowledge/superior knowledge rule has been challenged as being “illogical, untenable and distortive of the issues in a negligence case,” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 46 (2) (332 SE2d 304) (1985), this court continues to adhere to the principle that the true ground of the proprietor’s liability is his superior knowledge, Bright v. Food Giant, 177 Ga. App. 641, 642 (340 SE2d 272) (1986), because “[w]here the knowledge is truly equal, and not mitigated by some justifying emergency, the rule is that the plaintiff is ‘equally guilty of a lack of ordinary care in voluntarily subjecting himself to the risk, and can not recover.’ [Cit.] The basis of this rule is the plaintiff’s own duty to exercise ordinary care for his own safety, and his duty to avoid the effect of the proprietor’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. ‘He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him. [Cits.]’ [Cit.]” Colbert, supra at 47.

The basis for the special concurrence’s argument is that the “justifying emergency” exception, referenced in Colbert, supra, is applicable here to mitigate appellant’s decision to hazard a known risk. The “sudden emergency” line of cases, involving split second reactions taken by automobile drivers faced with another’s negligence, are distinguishable from the case here, compare Whitehead v. Seymour, 120 Ga. App. 25, 28 (4) (169 SE2d 369) (1969), as are the landlord-tenant cases in which the hazard was knowingly assumed by the tenant because no alternative presented itself. See Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269, 270 (235 SE2d 601) (1977). In the case sub judice, nothing in the record indicates that appellant’s decision to assume the risk of traversing building debris was the coerced result of any emergency or necessity whatsoever. See Smith, supra.

By appellant’s own admission, there was no pressing reason, no emergency, which required her to visit Sears on that day and at that time. Nor does the record support appellant’s argument that there was coercion prompting which path she was required to take to reach her destination. Appellant’s automobile was parked nearby, enabling *145her to drive to Sears; appellant could have exited appellee’s store by means of the other main exit and approached Sears from the opposite side; or appellant could have “picked” her way between the cars parked between the sidewalk and the street, assuming there was not enough space at the rear of the cars in the parking spaces to walk behind them without stepping on the trafficked street itself. Or, as the special concurrence suggests, appellant could have postponed her visit to Sears to a more propitious time.

By the characterization of the decision appellant faced as a choice between walking in a heavily trafficked road or traversing the building debris, appellant and the special concurring members of the Court seek to represent appellant as having been placed between the horns of a dilemma. It is a false dilemma, unwarranted by the facts, and thus constitutes a material fallacy to appellant’s argument. Rather than indicating a decision coerced by circumstances, appellant’s actions indicate that her decision to visit Sears by traversing appellee’s debris-covered sidewalk was made strictly as a matter of personal convenience, not necessity. Appellant chose to hazard the danger of the building debris because it was more convenient to her than the more time-consuming alternatives available. In Baker, supra, the plaintiff was denied recovery for injuries incurred when he fell off a plank spanning some sidewalk construction, the court noting “[t]hat there was no necessity is manifest, as the evidence discloses that with little inconvenience it was possible to descend from the sidewalk a few feet below the corner where the plank was situated. ...” (Emphasis supplied.) Id. at 350. Thus, I cannot agree with the special concurring opinion that appellant was coerced by the circumstances or driven by necessity in a manner mitigating her knowing assumption of an obvious risk. Since I do not consider “necessity” to be an issue in this case, I need not address language in cases such as Hearn v. Barden, 115 Ga. App. 708, 710 (155 SE2d 649) (1967), in which it was stated that “even though the plaintiff alleged that the route chosen was one of necessity, yet where the plaintiff knew of the danger he assumed the risk and was guilty of such negligence as would bar recovery.” (Emphasis supplied.)

Therefore, because appellant failed to exercise due diligence for her own safety, despite her recognition and appreciation of a known danger, I would affirm the trial court’s grant of summary judgment in favor of appellee.

I am authorized to state that Presiding Judge Deen, Presiding Judge Birdsong, and Judge Pope join in this dissent.

*146Decided November 17, 1986 Rehearing denied December 5, 1986 Bruce V. Durden, Kittrich R. Schilke, for appellant. Julian B. Smith, Jr., for appellee.