Folks, Inc. v. Dobbs

Benham, Judge,

concurring in part and dissenting in part.

Although I agree fully with the holding in the second division of the majority opinion, I cannot join in the holding of the first division and must, therefore, dissent to that portion of the decision.

As noted by the majority, questions of negligence, assumption of the risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, and comparative negligence are for the jury except when the facts are so plain and palpable that they demand a finding as a matter of law. Rainey v. City of East Point, 173 Ga. App. 893 (328 SE2d 567) (1985). The majority also gives lip service to the principle that the party opposing a motion for summary judgment is to be given the benefit of all reasonable doubts and favorable inferences (Lorie v. Standard Oil Co., 175 Ga. App. 308 (333 SE2d 110) (1985)), but then leaps to the support of the movant’s position with an alacrity which evidences a distrust of the jury system.

The cases on which the majority relies are sufficiently different *315on their facts that they are not authority for the proposition that the facts in this case are so plain and palpable as to demand a finding for appellant as a matter of law. In Westall v. M & M Supermarkets, 174 Ga. App. 155 (329 SE2d 237) (1985), the plaintiff had made “numerous prior visits” to the defendant’s premises, and there is no mention of any distraction or any difference between conditions at the time she fell and the other times she had visited the premises. The plaintiff in Backer v. Pizza Inn, 162 Ga. App. 682 (292 SE2d 562) (1982), tripped over a railroad tie under circumstances that were unchanged from the time he successfully stepped over it on his way into the defendant’s restaurant. In Garnett v. Mathison, 179 Ga. App. 242 (345 SE2d 919) (1986), the plaintiff had been to the defendant’s premises “a number of times,” and the fall occurred on a bright day. The plaintiff in Mewborn v. Winn-Dixie Stores, 179 Ga. App. 284 (346 SE2d 95) (1986), saw the object on which she slipped, but by the time she stepped on it, she had “forgotten about it . . .”

The situation in the present case is factually distinguishable from those cited above. Appellee testified that she had been to appellant’s business before, but had never entered or exited through the door she used on the night she was injured. As she entered the building, it was not apparent to her that the lighting was not sufficient, because the entrance was illuminated by the headlights of a car; when she exited, the car was not there and there was no light. Another condition of the premises had also changed between her arrival and departure: the restaurant had become crowded while she was inside and she had to make her way through a crowd to exit.

Appellee’s situation is similar to that of the plaintiff’s in Robinson v. Western Intl. Hotels, 170 Ga. App. 812 (318 SE2d 235) (1984). Appellee “did not fall while simply traversing the area [of the. entrance] in exactly the same manner as [she] had previously done. [She] had previously [mounted the step] and stepped into the [restaurant]. [She] fell while attempting to exit the [restaurant].” Id. at 815. Another case in which the situation of the plaintiff was more similar to that of the plaintiff here than were the situations in the cases cited by the majority is Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (263 SE2d 171) (1979). There, the defendant had created a situation in which the plaintiff’s attention was distracted from the hazard at her feet. Here, appellant permitted the area where appellee fell to become so congested with other customers that appellee, burdened with packages prepared and handed to her by appellant, was distracted by the necessity of negotiating her way through a crowd.

My conclusion, after considering appellee’s sworn statements concerning the circumstances of her injury, is that the evidence does not require the conclusion that appellee had knowledge equal to ap*316pellant’s of the hazards associated with attempting to leave appellant’s restaurant. Here, the plaintiff was confronted with a situation created by the defendant, which limited her choices. So far as the record reveals, appellee had the choice of attempting to traverse the exit from appellant’s restaurant when and as she did, or making several trips through the same hazardous terrain, or waiting in appellant’s restaurant until the congestion abated and the lighting outside improved. Here, as there, the question of whether appellee’s conduct was reasonable under the circumstances is for the jury.

Decided December 5, 1986 Rehearing denied December 18, 1986 Sue K. A. Nichols, Glenn Frick, for appellant. Robert M. Goldberg, for appellee.

Since the evidence of record does not demand a judgment for appellant as a matter of law, I would affirm the trial court’s denial of appellant’s motion for summary judgment.

I am authorized to state that Chief Judge Banke and Judge Carley join in this opinion.