Wallace v. Pointe Properties, Inc.

McMurray, Presiding Judge.

j Plaintiff Wallace was injured when she stepped in a hole , on the property of defendant Pointe Properties, Inc., and subsequently filed this action for damages. Plaintiff appeals from the grant of summary judgment in favor of defendant. Held:

*538The status of plaintiff upon the property is contested in the case sub judice. Defendant contends that plaintiff was merely a licensee, while plaintiff contends that she was an invitee. Plaintiff’s affidavit shows that her job as a case manager with Community Care Services, Inc., allowed her to act as a broker for community support services for senior citizens so as to help them receive all the state and federal aid to which they are entitled, including that which would permit them to remain in an independent living situation such as defendant’s apartments. Plaintiff states that on the day of her injury she was visiting defendant’s premises to help clients who resided there remain independent enough to pay rent and thus continue as tenants in defendant’s apartments. “An invitation is implied where the entry on the premises is for a purpose which is, or is supposed to be, beneficial to the owner. Crossgrove v. A. C. L. R. Co., 30 Ga. App. 462 (118 S. E. 694).” Coffer v. Bradshaw, 46 Ga. App. 143, 148 (167 SE 119). See also Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (2) (392 SE2d 535); Burkhead v. American Legion, Post No. 51, 175 Ga. App. 56 (332 SE2d 311). As plaintiff’s presence on the premises may have been beneficial to defendant in that it may have aided defendant in retaining tenants, there is sufficient evidence to permit a jury to conclude that plaintiff was an' invitee. Therefore, for purposes of defendant’s motion for summary judgment, we must view plaintiff as an invitee. An owner or occupier has the duty to an invitee to exercise ordinary care to keep the premises safe. OCGA § 51-3-1.

This incident occurred shortly before noon on a beautiful clear June day. Plaintiff, accompanied by a colleague, was on her way to an appointment with a client when some papers she was carrying were blown from her hand. When plaintiff saw some of the papers across a closed dead end street, she started over to them and stepped into the hole which she had not seen. The hole, which was approximately eight inches in diameter and three feet deep, was one of several similar holes which held cement posts separating a pedestrian mall from the street except that the hole in question did not contain a post and was empty. The pavement surrounding the hole was covered with green paint which continued to the metal encasement of the hole. There was nothing warning anyone of the presence of the hole or which would have blocked plaintiff’s view of the hole. Plaintiff testified that she looked across the route to her papers, saw no obstructions and nothing unusual in the area she would traverse, and proceeded toward her papers looking straight ahead of herself. Plaintiff opined that the reason she did not see the hole was because of “the way the road is curved and the way the shadows of the buildings are there.”

Defendant contends that plaintiff is barred from recovery by the “plain view” doctrine. “The ‘plain view’ doctrine ‘is that one is under a duty to look where he is walking and to see large objects in plain *539view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries. (Cits.)’ Stenhouse v. Winn Dixie Stores, [147 Ga. App. 473, 474-475 (249 SE2d 276)].” Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 241 (396 SE2d 42). Plaintiff was under a duty to use her eyesight for the purpose of discovering any discernible obstruction in her path. Froman v. George L. Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413). However, in Froman, in Hospital Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103), and in Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28), it was uncontroverted that the obstructions were clearly visible. Such was the case also in Nunnelley v. Brown, 197 Ga. App. 711 (399 SE2d 219), cited in the dissent, where the steps in question were plainly marked with yellow tape and had been safely traversed by that plaintiff an hour prior to her injury. In the case sub judice, there is evidence that the hole was not in plain view, but was obscured by a combination of factors. Thus, a genuine issue of material fact remains as to whether the hole was in plain view and whether plaintiff maintained a reasonable lookout for such obstructions. See Whitley v. Hulon, 194 Ga. App. 363 (390 SE2d 598). A further issue exists as to whether the hole was “at a location where they are customarily placed and expected to be.” See Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 476 (249 SE2d 276).

We reject the supposition advanced in the dissent that plaintiff’s testimony was contradictory. Even when construed most strongly against her, plaintiff’s explanation, of why the hole was difficult to see, consistently maintains that the difficulty arose when light and shadows combined to conceal the actual contours of the area. The superior court érred in granting defendant’s motion for summary judgment.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, JJ., and Judge Arnold Shulman concur. Andrews, J., dissents.