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SHERATON WHITEHALL CORPORATION v. MCCONNELL; and vice versa.
34733.
34734.
Action for damages. Before Judge Moore. Fulton Superior Court. April 30, 1953.
SUTTON, C. J.
1. The petition, alleging that the plaintiff, while attending a conference in the ball room of the defendant's hotel, walked from the center aisle of the room toward the speaker's platform across a highly polished dance floor, the front edge of which was perpendicular to the carpeted area of the room and the side of which sloped downward, and that the plaintiff did not see the sloping board attached to the side of the dance floor but slipped and fell upon it, thereby sustaining injury, set out a cause of action, and the court did not err in overruling the general demurrer thereto.
2. The cross-bill of exceptions is without merit.
Mrs. Clara E. McConnell sued out a writ of attachment from the Superior Court of Fulton County against Sheraton Whitehall Corporation, a Massachusetts corporation. Her declaration in attachment as amended was substantially as follows: The defendant owns and operates for profit the Sheraton Bon Air Hotel in Augusta, Georgia; and, on March 3, 1949, the plaintiff was a paying guest at this hotel, where she was attending the Annual Conference of the Georgia Society of the Daughters of the American Revolution, of which society the plaintiff was then the recording secretary. The defendant provided a large room known as the Crystal Ball Room on the main floor for the accommodation of the conference and as a part of the facilities of the hotel to attract the patronage of those attending the conference. The defendant arranged the Crystal Ball Room as follows: The floor was carpeted, except for a dance floor which occupied less than one-fourth of the area of the room and was elevated about an inch and a half or two inches above the carpeted floor area. A raised platform was placed over the back half of the dance floor. The platform was about eighteen inches high and extended beyond the dance floor on either side to the carpeted area of the room, with a carpeted space between the ends of the platform and the walls of the room. Chairs were provided on the platform for the officers of the conference, with a chair and table for the recording secretary to the left of the platform, facing the audience. Chairs for the audience were provided on the carpeted area immediately in front of the dance floor and facing the platform; and these chairs were arranged so that there was a center aisle, running from the rear of the room to the center of the dance floor, for access to the chairs and the platform. There were flowers and other decorations on the front of the platform, and to go upon it from the center aisle it was necessary to walk across the dance floor, step down from the dance floor, walk along the carpeted area on the side of the room, and then step up to the platform. As recording secretary, the plaintiff was expected and required to be seated on the platform, at the table and chair placed there for her. On the side of the dance floor and in front of her table and chair, there was a board or plank, about two or two and one-half inches in width and running the length of the dance floor, which sloped from the surface of the dance floor, to which it was affixed, to the carpeted area of the room. There was no sloping board at the front of the dance floor. The dance floor was constructed of wood, and its surface and that of the adjoining wooden plank or board were polished, slick, and slippery.
On the afternoon of March 3, 1949, the plaintiff entered the Crystal Ball Room to take her place as recording secretary. She proceeded down the center aisle and took a seat on the front row of the seats for the audience, while a report was being given from the platform. Afterwards the plaintiff proceeded toward her place 'on the platform, walking across the dance floor and then stepping from it. As she stepped from the dance floor, placing her left foot forward, her right foot came in contact with the sloping board or plank (which the plaintiff did not see and did not know was there), and her right foot slipped forward onto the carpeted area of the room; her body crumpled forward, and her right ankle was broken in the slip and fall.
The damages sought were for medical expenses incurred and for pain and suffering, and it was further alleged that the proximate cause of the plaintiff's injury and damage was the defendant's negligence: (a) in maintaining the dance floor in its ball room with the sloping wooden plank or board adjoined thereto; (b) in arranging for the accommodation of the conference in its ball room with the sloping wooden board or plank adjoined to the dance floor; (c) in maintaining the dance floor with the sloping wooden board or plank adjoined when the defendant in the exercise of ordinary care should have known that such was a place of danger with respect to persons stepping from the side of the dance floor; (d) in arranging the platform for the conference at the back of the dance floor, thus making it necessary, for persons desiring to go onto the platform from the center aisle, to cross the dance floor, instead of placing the platform at the front of the dance floor, so that persons going upon the platform could do so without crossing the dance floor; (e) in not placing hand rails or guard rails on or around the side of the dance floor near the place where the sloping board was situated; (f) and (g) in maintaining and providing the dance floor without uniformity of construction, in that the front of the dance floor was perpendicular to the carpeted area of the room, while the side was sloping, which was misleading to those entering the dance floor from the front and leaving it from the side.
The defendant filed general and special demurrers to the declaration. On January 30, 1953, the court overruled the general demurrers and sustained certain of the special demurrers with leave to amend in 15 days. The plaintiff amended her declaration on February 9, 1953, and the defendant renewed its demurrers to the amended declaration. The court then overruled the renewed demurrers and the defendant excepted.
The cross-bill assigns error on the judgment of January 30, 1953, sustaining a special demurrer to subparagraphs (f) and (g) specifying the defendant's negligence, and also assigns error on the overruling of the plaintiff's demurrers to the answer.
The defendant contends that the court erred in overruling its general demurrer to the amended declaration, for the reason that the declaration fails to show negligence on the part of the defendant and affirmatively shows that the plaintiff's failure to exercise ordinary care caused her injuries.
"Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Code 105-401. It is not questioned that the declaration shows that the plaintiff was an invitee on the premises owned and occupied by the defendant, and we think that the declaration further alleges a structure on the defendant's premises which would cause a prudent owner reasonably to anticipate danger from its existence. It appears that, in going from the center aisle through the audience to the platform, at which the plaintiff was to sit during the proceedings of the conference which she was attending, the plaintiff crossed the side of a dance floor, to which there was attached a sloping board or plank sloping down from the surface of the glance floor to the carpet. The difference in elevation was alleged to be form one and one-half inches to two inches; the width of the sloping board was about two or two and one-half inches, and the board ran the length of that side of the dance floor. The danger in this construction was not entirely in ifs polished condition, but also in the fact that its surface was not level but was sloping. The slope of the board was not so conspicuous as to have been readily noticed by anyone with normal vision while walking across it in the exercise of ordinary care for his safety. It is alleged that the plaintiff did not see the sloping board or know that it was there, and this obstruction was not such as would necessarily be seen and appreciated by the plaintiff in the exercise of ordinary care in observing where she was walking.
Furthermore, the alleged fact that the front edge of the dance floor was perpendicular would tend to mislead the plaintiff, as she passed over the dance floor on her way to the platform, into expecting that the side of the floor would also be perpendicular, rather than sloping.
The cases cited and relied upon by the plaintiff in error are distinguishable on their facts from the present case and do not require a ruling different from the one here made. Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (190 S. E. 354); Moore v. Kroger Co., 87 Ga. App. 581 (74 S. E. 2d 481); Lane Drug Stores v. Story, 72 Ga. App. 886 (35 S. E. 2d 472); Tinley v. F. W. Woolworth Co., 70 Ga. App. 390 (28 S. E. 2d 322); and National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280 (175 S. E. 255), are all cases dealing with structures and arrangements of premises which were obvious, visible, and apparent, and thus considered either as not being dangerous or as presenting dangers which the plaintiff could have appreciated and avoided in the exercise of ordinary care.
Questions of negligence, proximate cause, and failure to exercise ordinary care to avoid the consequences of another's negligence are questions of fact which are ordinarily for determination by a jury, and this is not such a plain and indisputable case that the court should determine these questions as a matter of law. The petition set out a cause of action, and the court did not err in overruling the general demurrer thereto.
2. The cross-bill complains of the rulings of the court sustaining special demurrers to the petition and striking there from two of the specifications of the defendant's negligence. But these rulings were made as a part of the judgment rendered on January 30, 1953, in which the court also sustained some of the demurrers with leave to amend. According to Code 81-1001, as amended by the act of 1952 (Ga. L. 1952, pp. 243, 245), "Where the court sustains any or all demurrers to pleading, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment. Parties shall have the right to amend at any time prior to the rendition of such latter judgment. Nothing herein shall be construed to abridge the right of amendment otherwise existing." Therefore, the judgment of January 30, 1953, in which certain of the defendant's demurrers were sustained and the plaintiff was allowed to amend within 15 days, was not subject to exception or review, and was superseded by the judgment on the sufficiency of the pleadings rendered after the time allowed for amendment had expired. In this latter judgment, the court overruled "the foregoing demurrers and renewed demurrers" to the petition as amended; this judgment superseded the former judgment sustaining the special demurrer and striking subparagraphs (f) and (g) of the allegation of the defendant's negligence, and it overruled the demurrer as renewed to those subparagraphs. This last ruling was favorable to the plaintiff and, of course, was not excepted to.
The paragraphs of the defendant's answer to the effect that the plaintiff's injuries complained of were caused by her own negligence, which were demurred to by the plaintiff on the ground that these were conclusions of the pleader, were matters of defense that could have been gone into by the defendant on the other portions of his answer, and for these reasons the cross-bill of exceptions is without merit.
Judgment affirmed on both bills of exceptions. Felton and Worrill, JJ., concur.
Durwood T. Pye, contra.
Ferdinand Buckley, Marshall, Greene, Baird & Neely, for plaintiff in error.
DECIDED SEPTEMBER 18, 1953.
Saturday May 23 04:25 EDT


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