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Lawskills.com Georgia Caselaw
HICKS v. KAPLAN.
40438.
Action for damages. Toombs Superior Court. Before Judge Brown.
FELTON, Chief Judge.
The invitee's petition for damages does not show on its face that she was guilty of negligence barring her recovery.
Mrs. Mamie Lee Hicks sued Sam Kaplan in the Superior Court of Toombs County, Ga., to recover damages resulting from the alleged negligence of the defendant. The petition, as amended in so far as is necessary to quote for the purpose of this decision, is as follows: "3. On April 5, 1961 at about 10:15 a.m., plaintiff entered the premises owned by defendant in Toombs County, Georgia located at the northernly intersection of U. S. Highway #1 and Georgia State Route #29, to pay for gas purchased from Jack Wheeler, the said Wheeler operating a grocery store and gasoline station on said premises. 4. After having paid said bill, in leaving the store building owned by defendant, plaintiff caught the heel of her shoe in a loose metal strip, said strip being about one and one-half inches in width, and being located along the floor in the threshold of the front door in such a manner as to extend from one side of the doorway to the other. Said doorway was, and is, the only commonly used entrance to the store building and exit from the store building. 5. The said metal strip was loose due to the fact that the screws holding same to the floor were not properly fastened in a tight position, and the metal strip above referred to was in a dangerous condition, which condition was not immediately apparent to the public in that said metal strip was lying flush against the floor, but was subject to rising about three-fourths of an inch, as a result of the loosened condition of its binding screws, when pressure was exerted against the strip. The dangerous condition herein described though not immediately apparent to a casual observer for the reasons stated, was sufficiently patent to be discovered by frequent users of the doorway, and this plaintiff, on information and belief, alleges that defendant had actual and constructive knowledge of said condition, which had existed for a considerable period of time, and which was the result of natural wear and tear existing over several years, but failed to remedy said condition." The court sustained the defendant's general demurrer to the petition as amended and dismissed the action. To this judgment the plaintiff excepts.
The court erred in sustaining the general demurrer to the amended petition. The petition did not affirmatively show that the plaintiff was barred by her own negligence. Belk Gallant Co. v. McCrary, 88 Ga. App. 829 (78 SE2d 198); Building Investments, Inc. v. Jackson, 100 Ga. App. 827 (112 SE2d 359). The facts alleged in this case are similar to those alleged in Wicker v. Roberts, 91 Ga. App. 490 (86 SE2d 350) where the petition was held good as against a general demurrer. Roberts v. Wicker, 213 Ga. 352 (99 SE2d 84) is distinguishable from Wicker v. Roberts, supra, because the latter case was decided on the pleadings and the former on evidence. In this case actual and constructive knowledge of the dangerous condition is alleged. Contrary to defendant in error's contention such knowledge is alleged as a fact on information and belief and the petition does not allege that the plaintiff "is informed and believes" that such knowledge existed. Pierce v. Rhodes, 208 Ga. 554, 556 (67 SE2d 771). The petition also alleges that the dangerous condition was not immediately apparent to the public. Scott v. Rich's, Inc., 47 Ga. App. 548 (171 SE 201); Townley v. Rich's, Inc., 84 Ga. App. 772, 776 (67 SE2d 403).
Judgment reversed. Eberhardt and Russell, JJ., concur.
T. Ross Sharpe, T. Malone Sharpe, Marvin Hartley, Jr., contra.
R. P. Jackson, Jr., Peyton Miles, for plaintiff in error.
DECIDED DECEMBER 2, 1963 -- REHEARING DENIED DECEMBER 12, 1963.
Friday May 22 22:19 EDT


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