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Action for damages. Wayne Superior Court. Before Judge Ballenger.
FELTON, Chief Judge.
The pleadings, depositions and affidavits on file show the existence of a genuine issue of material fact as to whether the defendant bank was liable for damages for the plaintiff's personal injuries sustained in a fall on the defendant's allegedly excessively waxed, slippery and unsafe terrazzo floor; therefore, the overruling of the defendant's motion for summary judgment was not error.
Bettie B. Howard filed a complaint on September 1, 1967, against the defendant bank for damages for personal injuries sustained in a fall on the defendant's premises resulting from the defendant's alleged negligence in maintaining a terrazzo floor in the customer area with a transparent and invisible wax, which was extremely slippery and unsafe, of which unsafe condition the defendant knew or should have known in the exercise of ordinary care. It is alleged that the plaintiff had no knowledge of said condition and could not see it because her eyes had not yet become accustomed to the dimmer interior lighting upon entering the building. The defendant filed its answer asserting the following defenses: (1) failure to state a claim upon which relief can be granted, (2) admissions, denials, etc., of each paragraph of the complaint, (3) that the proximate cause of any injuries was the plaintiff's negligence, and (4) accident. The defendant then filed a motion for summary judgment, supported by the affidavit of Robert Latson and the depositions of Rufus Bell and the plaintiff.
Latson's affidavit stated that he was, and always had been custodian of the defendant bank and that he had always exclusively maintained the floors as one of his duties; that, during the weekend prior to the Monday on which the plaintiff sustained her fall, he had prepared the floors in "substantially" the same manner as he had been doing previously; that his standard procedure for preparing the floors was and is as follows: "1. I would sweep the floors clear of all debris, sand and other foreign matter. 2. I would strip off with a chemical all previous wax. 3. I would then apply a sealer to the floor area. 4. I would then apply a buffing material known as 'Buff-On 18,' which is a floor conditioner for terrazzo floors. 5. I would then buff the floor with a buffing machine"; that on the morning of the plaintiff's fall he had been in the main lobby of the building and had not detected any area of the floor that appeared to be slippery and saw no foreign matter lying on the floor which might cause anyone to slip and fall; that, after the plaintiff's fall, he examined the site of the fall and found nothing of a foreign nature that would have caused her to slip and fall; that he particularly examined the floor and it was not slippery and the accident site was in no different condition from that of the remaining floor area of the lobby; that, prior to the plaintiff's fall, he had personally seen many bank patrons enter the bank lobby from the same entrance by which the plaintiff entered and no one slipped and fell in stepping from the mat located inside said entrance.
Rufus Bell deposed substantially as follows: That he had accompanied the plaintiff to the bank on the day of her fall; that, as the plaintiff stepped off the mat inside the entrance way and onto the terrazzo floor, her foot slipped and she fell; that when he stepped off the mat also to pick up the plaintiff, he almost slipped himself on the floor, which was "unusually slick"; that the weather at the time was fair; that he was wearing the same rubber-soled shoes at that time that he had worn into the bank without slipping many times both before and after the plaintiff's fall.
The plaintiff testified in her deposition substantially as follows: that Mr. Bell had opened the door for her and that on the first step she took off the mat her feet went out from under her, causing her fall; that she was wearing the same leather-soled and heeled shoes at that time which she had frequently worn into the bank without slipping previously; that the mat did not slip, it being the floor itself which was slippery.
The plaintiff filed an answer opposing the defendant's motion, supported by the above two depositions and an affidavit of Mr. Bell, swearing that the floor in the area of the plaintiff's fall was extremely slippery and unsafe, contrary to the statement to the opposite effect of affiant Latson. The court denied summary judgment, from which judgment, certified by the trial judge for review, the defendant appeals.
The pleadings and the depositions and affidavits on file all show that the sole defect, if any, in the defendant's premises with regard to the plaintiff's fall was an excessively slippery condition of the terrazzo floor caused by wax. Since the defendant, by its employee, admittedly applied the wax as a routine procedure, the cases dealing with various foreign substances on floors are not relevant. The defendant is thus presumed to have knowledge of the existence of the wax. The controlling issues, as to a summary judgment for the defendant, are whether the record shows without conflict that the floor was not so slippery as to have caused the plaintiff's fall and, if it was so slippery, whether the defendant knew, or in the exercise of ordinary care should have known, of such condition. The fact that some other patrons may not have slipped on the same floor does not negative the possibility that the floor was slippery, especially since it does not appear how many of them entered through the same entrance as the plaintiff or that the wax was applied evenly throughout the entire lobby. A jury might find that other possible causes of the fall had been eliminated, since there was no rainwater or other foreign substance on the floor, and since the plaintiff and her companion both wore shoes which they had frequently worn in that same bank previously without slipping. A jury might also consider the self-serving nature of the defendant's employee's testimony in weighing the evidence to decide the controlling issues. The evidence did not demand a finding that the plaintiff was, or in the exercise of ordinary care should have been, aware of the unsafe condition of the floor. Even if she had knowledge of the defect, if any, however, this was not tantamount to knowledge of danger or appreciation of risk. See Clayton v. Steve-Cathy, Inc., 105 Ga. App. 570 (125 SE2d 118), and cit., in which the grant of a summary judgment in favor of the defendant was reversed even where the plaintiff's deposition disclosed that, prior to her fall on a waxed floor, she had observed that said floor "looked slippery, shiny and highly polished."
Accordingly, it was a question for the jury, under the record before the court on motion for summary judgment, as to whether defendant was liable as alleged, and the trial court did not err in its judgment overruling the defendant's motion for summary judgment.
Judgment affirmed. Whitman, J., concurs. Eberhardt, J., concurs in the judgment.
Gibbs & Leaphart, J. Alvin Leaphart, for appellee.
Zorn & Royal, William A. Zorn, for appellant.
Friday May 22 18:15 EDT

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