Freyer v. Silver

McMurray, Presiding Judge,

dissenting.

For the reasons given in my dissent in MARTA v. Fife, 220 Ga. App. 298, 301 (469 SE2d 420), I respectfully dissent from the reversal of the trial court’s denial of summary judgment in the case sub judice. In my view, plaintiff’s evidence is sufficient to create a genuine issue of material fact whether an optical illusion prevented plaintiff from avoiding the hazard posed by the defectively designed and constructed catch basin. Under Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485), such a plausible distraction is sufficient-to preclude a ruling that plaintiff failed, as a matter of law, to exercise ordinary care to avoid the danger posed by that dangerously defective catch basin.

I am authorized to state that Judge Eldridge joins in this dissent.