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HOME FEDERAL SAVINGS & LOAN ASSOCIATION v. HULSEY.
38943.
Action for damages. Hall City Court. Before Judge Blackshear.
NICHOLS, Judge.
Where a petition alleges that a defendant knew or in the exercise of ordinary care should have known of an alleged defective condition it alleges only constructive knowledge, and in order to withstand a general demurrer facts must be alleged to show that such condition had existed for a sufficient length of time to impute knowledge to the defendant.
Jack C. Hulsey sued the Home Federal Savings & Loan Association, a corporation domiciled in Hall County, Ga., for injuries and damages sustained when he slipped and fell in an alley adjacent to the defendant's place of business in Gainesville, Ga., at a time when he was approaching the defendant's place of business, on business with the defendant. The petition alleges that on August 15, 1958, the defendant occupied such building which had an air conditioning unit on the roof which was In operation on such date, that the roof sloped towards such alley and the water discharged by such air conditioner ran down such roof, into a gutter which exhausts to the pavement at the rear of the building; that pipes from such air conditioning tower also exhausted to the ground; that the roof of such building "is of a metal construction and has on it tar and paint and other substances over which the water flows to the gutter, causing the water thus exhausted to become impregnated with rust and other substances of a slippery nature not discernible by observation and the exercise of ordinary care under the circumstances."
The petition alleges various acts of negligence in connection with such operation, as well as the plaintiff's injuries and special damages, and then, immediately preceding the prayer for process and judgment, alleges: "Defendant well knew that the alley adjoining its premises and upon which the water was being discharged as aforesaid was extensively used by pedestrians each day during August, 1958, and knew or in the exercise of ordinary care should have known of the slick and dangerous condition existing on August 15, 1958, at the time petitioner was injured as aforesaid." The defendant demurred generally to the plaintiff's petition and it now assigns error on the judgment of the trial court overruling such demurrer.
In view of the quoted allegations which when construed against the pleader, as they must be construed on general demurrer, allege no more than constructive knowledge, or that the defendant should have known of the alleged slick and dangerous condition, and in order to set forth a cause of action the petition must allege facts or circumstances sufficient to make it a question of fact as to whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge would be imputed to the defendant. See Setzers Super Stores of Ga. v. Higgins, ante; Cook v. Kroger Baking &c. Co., 65 Ga. App. 141 (15 SE2d 531); Jones v. West End Theatre Co., 94 Ga. App. 299 (94 SE2d 135).
The petition alleged that on August 15, 1958, the defendant occupied the building and carried on its business there, and on such date maintained the air conditioner, and operated the same on such date, that it knew that pedestrians used the alley during each day of August 1958, and that it should have known of the dangerous condition existing on August 15, 1958. The petition is barren of any allegation that the defendant occupied the building prior to August 15, 1958, or that the air conditioner was in operation prior to August 15, 1958 (the date on which the plaintiff was allegedly injured), and under the above cited cases the judgment overruling the defendant's general demurrer must be reversed because no facts or other circumstances appear that would authorize a finding that the defendant had sufficient notice of the facts to impute knowledge of the alleged condition to it so that such condition should have been corrected.
EBERHARDT, Judge, concurring specially.
I concur in all that is said in the foregoing opinion, but feel that it should be added that the overruling of the general demurrer was error for the further reason that all of the allegations of the petition, when considered together, do not show a lack of ordinary care on the part of the defendant, and thus fail to allege any actionable negligence. Water running along a street or sidewalk is not per se a dangerous thing. If such were held to be so, then every owner of property would be exposed to an unusual hazard every time it rains. It appears from the allegations of the petition that the presence of water on the sidewalk was apparent to plaintiff before he stepped into it. It is alleged that the water was clear, and that the presence therein of foreign matter was not discernible by the natural eye. If not discernible to plaintiff, then it was likewise not discernible to defendant. Nor would the fact that it came from the roof of defendant's building, of metal construction with some tar preparation in places, indicate that there was or might be any dangerous substance in the water, Such materials are generally and frequently used in the roof of buildings. To hold that defendant here was under a duty to make some analysis or microscopic examination of the water to ascertain whether there was any foreign substance therein that would cause it to render the sidewalk slippery would be to exact of the owner a degree of care much higher than that which the law requires. Conaway v. McCrory Stores Corp., 82 Ga. App. 97, 101 (60 SE2d 631).
Wheeler, Robinson & Thompson, Emory F. Robinson, contra.
Kenyon, Kenyon & Gunter, Wm. B. Gunter, for plaintiff in error.
DECIDED JUNE 29, 1961.
Friday May 22 23:32 EDT


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