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MARTIN v. SEARS, ROEBUCK & COMPANY.
44520.
Action for damages. Bibb Superior Court. Before Judge Culpepper.
EBERHARDT, Judge.
The grant of a summary judgment was not error.
Mrs. Lynette Martin brought suit against Sears, Roebuck & Company seeking damages for injuries alleged to have been sustained when she fell on the steps at the exit from the store to Third Street. She charged that she fell because of a "slick place" on the top step, but neither alleged nor testified that there was any foreign substance on the step.
There were three steps and there was a handrail on each side of them which was available for use by people going in and out of the store. The treads of the steps were of reddish terrazzo, and the rises between were of a bluish composition. The floors beyond at the top were of a lighter or contrasting color. There was natural light falling on the steps from the door a short distance away, and there was artificial lighting above, and Mrs. Martin testified that she had no difficulty in seeing.
She was leaving the store and started to go down the three steps, but fell when she placed her foot on the first or top step.
In addition to her claim that there was a "slick place" on the step, she asserts that there was a defect in the construction of the steps in that the rises are of unequal height, the top step descending 5 1/4 inches from the floor level, the next 4 5/8 inches ant the third or bottom step descending 7 5/8 inches to the street level landing. The width of the steps is 151 inches. There was no handrail at the center of the span but there was one at each end.
A safety engineer testified that the steps were not constructed in accordance with minimum standards of the National Fire Protection Association and that in his opinion they were, for that reason, unsafe.
Employees of Sears, Roebuck & Company, Mrs. Eckert and Mr. Jordan, testified that they were at the scene where Mrs. Martin fell within minutes after she fell, examined carefully the steps and found no foreign substance on any of them except one little book-match stem at the end of one of the steps (which Mrs. Martin testified had nothing to do with the fall) and that they found no slick places or spots and that the steps were clean, dry, free of extraneous matter and normal in appearance. They felt the steps with their hands and found nothing.
Mr. Jordan, who had charge of keeping the floors, steps, etc., clean, testified that the terrazzo steps were mopped each day prior to opening the store, using NL Concentrate, diluted two ounces to five gallons of water for cleaning, and rinsed. No soap or wax was used on the steps, or ever applied to that area. About once each year a sealer was applied which enhanced the glossy appearance of the steps but at the same time enhanced its skid-resistance. It was last applied March 26, 1966, prior to the accident on May 9.
Mr. Prindle, research director of National Laboratories, manufacturer of NL Concentrate, testified that when diluted one part to 75 in water, or less, it would leave no film or scum on the surface and would not affect the non-skid properties of terrazzo.
Mr. Kern, manager of technical services of Purex Corporation, manufacturer of the sealer used, testified that it had been in extensive commercial and professional use for the refinishing of terrazzo for years and that from this extensive use of it, it had been observed that the sealer provided a better appearance but at the same time enhanced the non-skid properties of the terrazzo.
Defendant's motion for summary judgment was sustained, and plaintiff appeals.
Differences in the physical conditions here and in W. T. Grant Co. v. Phillips, 116 Ga. App. 650 (158 SE2d 312) are insubstantial and we think the ruling there is controlling here.
The claim of a defect in construction does not require a different result because the evidence demands a finding that even if the defects claimed existed, these had nothing whatever to do with Mrs. Martin's fall. The variance in the height of the rises between the steps had nothing to do with it, for she says that she fell when she placed her foot on the top step. It does not appear that the area was crowded or that for other reasons the two handrails were not available for her use; she simply did not elect to go to either of them when she started to go down the steps. Photographs of the steps are in the record showing the location and availability of the handrails. The steps have no appearance of being worn or hollowed out from traffic, and give no appearance of being other than of terrazzo construction in general use for commercial, office and other buildings.
The pleadings were pierced, and plaintiff fails in her effort to shift the blame for her fall to a defect in construction and thus raise a genuine issue of material fact.
Judgment affirmed. Bell, P. J., and Deen, J., concur.
Jones, Cork, Miller & Benton, Frank C. Jones, H. Jerome Strickland, for appellee.
Mincey, Kenmore & Popper, Joseph W. Popper, Jr., for appellant.
ARGUED MAY 29, 1969 -- DENIED JULY 10, 1969.
Friday May 22 17:50 EDT


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