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Action for damages; from Fulton Superior Court -- Judge Whitman. October 31, 1949.
Where, in a suit for damages for personal injury allegedly sustained when a customer in a department store fell on a concrete floor near an entranceway, it appearing that it was raining then and had been for a considerable time, which fact was known to the plaintiff, and where the plaintiff states that after her fall she discovered numerous puddles of water on the floor, but fails to allege circumstances sufficient to show that the proprietor had actual knowledge of the presence of the water or implied knowledge that rainwater would render the floor slippery; and where it is not alleged that this condition in fact existed or that it caused her to fall, there appears no lack of care on the part of the defendant which was not shared equally by the plaintiff, and the petition was subject to dismissal on general demurrer.
Mrs. Rebie Hill sued Davison-Paxon Company, a corporation, for damages sustained by her while a customer in the defendant's place of business. A general demurrer was sustained to the petition, pertinent allegations of which were: that the plaintiff entered the store to make a purchase; that it was raining at the time and had been most of the time prior thereto; that she fell on a concrete floor in the main aisle near the entrance and after falling discovered that there were numerous puddles of water on the floor; that she had looked at the floor before stepping and had not seen the water; that the floor had numerous bleached and discolored areas and the floor where she fell looked just like other areas; that the puddles of water had been present for several hours and were, or in the exercise of ordinary care should have been known, to the defendant. The allegations of negligence were: that the defendant failed to provide rubber matting or other material on the floor which would have prevented petitioner from falling, as alleged, in said water; that it failed to mop up and remove the water; that it carelessly permitted the water to remain on the floor for a period of several hours, and failed to warn the plaintiff of the presence of said water on the floor although it knew of the same. The petitioner alleges that the said negligence of the defendant was the direct and proximate cause of her injuries.
The assignment of error is to the sustaining of a general demurrer to the petition.
(After stating the foregoing facts.) As between landlord and tenant, master and servant, and owner and customer, one who sustains injuries upon the property of the other, in order to recover, must show that two elements at least exist, viz., fault on the part of the owner, and ignorance of danger on the part of the invitee. See 58 A.L.R. 136 (Ann.) Holman v. American Automobile Ins. Co., 201 Ga. 454 (39 S. E. 2d, 850).
As to the negligence of the defendant, the mere failure to remove water collecting near the entranceway of a large store because of the constant passing in and out of pedestrians during a period of rain, and the failure to place mats in the aisle at such a place would not be evidence of a lack of reasonable care for the safety of the store's invitees unless the concrete floor at that place had some peculiarity which caused it to become more slippery and dangerous than it would ordinarily have been. We can not recognize as a matter of law that concrete necessarily becomes slippery when wet and, as a matter of fact, the petition neither alleges that the water caused the floor to become slippery nor that the floor was actually slippery. Neither does it allege that the water on the floor caused the defendant to slip and fall. The petition is therefore insufficient both as to the allegations of negligence and the causal relationship between what is alleged as the negligence of the defendant and the injuries of the plaintiff. See Hall v. Hillside Cotton Mills, 23 Ga. App. 464 (98 S. E. 401); Wood v. Atlanta, 32 Ga. App. 189 (122 S. E. 804).
As to the second essential element of such an action, ignorance on the part of the customer and her inability to ascertain the peril in the exercise of ordinary care, the petition affirmatively shows that the plaintiff was aware that it had been raining all day and was raining at that time, that the aisle where she fell was near the entrance, and that there were other customers present. It is a matter of common knowledge that some water would normally be present at a place where shoppers continually pass in and out during rainy weather. White the defendant is alleged to have been negligent in not providing mats over this area, the plaintiff could plainly see that no mats were present. As pointed out in Banks v. Housing Authority of Atlanta, 79 Ga. App. 313 (53 S. E. 2d, 595), she was aware of the weather conditions. Under these circumstances it appears that she herself was not in the exercise of due care. See also Avary v. Anderson, 31 Ga. App. 402 (120 S. E. 683); Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 (103 S. E. 433); Ford v. S. A. Lynch Corp., 79 Ga. App. 481 (54 S. E. 2d, 320). The latter case, from which the writer dissented, presented a set of circumstances much more favorable to the plaintiff than does the one at bar.
A storekeeper is not liable as an insurer of the safety of persons whom he has invited to enter his premises. He owes them a duty of ordinary care, to have his premises in a reasonably safe condition, not to lead them into a dangerous trap, or to expose them to unreasonable risk, but to give them adequate and timely notice and warning of latent or concealed perils. See 38 Am. Jur., Negligence, 96. No "latent peril" is alleged, other than the mere presence of rainwater on a concrete floor near an entrance. This should have been equally obvious to both parties, regardless of the coloring of fire floor. The storekeeper would not, as a matter of law, be required to keep this water removed at all times unless, due to some peculiarity of the floor or otherwise, its presence there created a hazard beyond that created on other areas, such as sidewalks, similarly constructed of concrete. Since this does not appear, the defendant was under no independent duty at all times to know of the presence of the water in order to remove it. Therefore, the allegation that "the defendant knew of the presence of said water on the floor, or in the exercise of ordinary care should have known of it," amounts only to an allegation of implied knowledge, and is insufficient for that reason. See Babcock Brothers Lumber Co. v. Johnson, 120 Ga. 1030 (48 S. E. 438).
The trial court did not err in sustaining the general demurrer to the petition as amended.
T. J. Long, for defendant.
William S. Shelfer, for plaintiff.
Saturday May 23 06:01 EDT

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