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Action for damages. Fulton Superior Court. Before Judge Pharr. April 8, 1960.
FELTON, Chief Judge.
Where a petition does not show the risk of unreasonable danger and does not show that the defendant could reasonably have foreseen danger to an invitee on his property, the trial court did not err in sustaining the general demurrer.
Sara McHugh filed her petition in Fulton Superior Court seeking damages for injuries sustained in a fall which occurred in the parking lot of a branch office of the defendant in Atlanta, Ga., on October 1, 1958. The pertinent allegations of the amended petition are as follows: The plaintiff had gone into the defendant's bank for the purpose of transacting business therein and, on leaving the bank building proceeded to cross the defendant's parking lot. In traversing the parking lot the plaintiff tripped over what is described to be a cement obstruction protruding approximately six inches from the ground. The obstruction is further described as "a cement separator." In falling, the plaintiff fractured her left wrist and sustained other alleged injuries.
The plaintiff further alleged that the defendant did not warn her of the presence of the obstruction and that she could not have observed it in the exercise of ordinary care and diligence for her own safety; that the defendant knew, or in the exercise of ordinary care should have known, that people using the parking lot would expect it to be free from all obstructions; that the sole and proximate cause of the injuries sustained was the negligence of the defendant.
The defendant filed his general demurrer to the petition as amended. The court sustained the demurrer and dismissed the action. To this ruling the plaintiff excepted.
Although it has not been made clear to us just what a "cement separator" is, we think that it must fall within one of the following classifications: a divider or curb commonly used in separating lanes of traffic or in setting apart parking spaces. Also, it could be a divider or property boundary or the perimeter of various landscaping located upon the parking lot. Any one of these can be anticipated by persons traversing a parking lot and we think that the maintenance of these structures does not constitute negligence.
It is argued by counsel for the defendant that neither the construction of a six-inch curb in its paved parking lot, nor its failure to warn the plaintiff of the presence of the curb, constitutes negligence. This position is well taken, we think. for the allegations contained in the pleadings are quite similar to several previous petitions before this court.
This court in McMullen v. Kroger Co., 84 Ga. App. 195 (65 S. E. 2d 420) (1951) held that mere allegations describing a concrete bar to be dangerous were subject to general demurrer. In that case, as in the instant case, the petition failed to allege that there were any defects rendering it dangerous and that it was not the type structure which would cause a prudent person reasonably to anticipate danger.
In Ely v. Barbizon Towers, Inc., 101 Ga. App. 872 (115 S. E. 2d 616) this court held that the condition of the landlord's premises did not show the risk of unreasonable danger to invitees under the circumstances alleged in the petition which could have been reasonably foreseen by the landlord.
Under the principle of law established by these cases we think that the court did not err in sustaining the general demurrer to the amended petition and in dismissing the action.
Judgment affirmed. Nichols and Bell, JJ., concur.
Smith, Kilpatrick, Cody, Rogers & McClatchey, George B. Haley, Jr., contra.
Robert M. Sparks, for plaintiff in error.
Saturday May 23 00:15 EDT

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