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HERRINGTON v. STONE MOUNTAIN MEMORIAL ASSOCIATION (two cases).
44330.
44331.
Action for damages. DeKalb Superior Court. Before Judge Dean.
FELTON, Chief Judge.
The court erred in rendering a summary judgment in favor of the appellee.
In these actions by a husband and wife for damages allegedly resulting from the defendant's negligence which caused the wife to fall and be injured on Stone Mountain, the petitions allege substantially: At approximately 2:30 pm., July 6, 1967, the plaintiffs and their children were paid visitors in the park controlled and supervised by the defendant association and were walking up the mountain following a path indicated by a white line painted on the granite surface. They had passed a shelter area, called the "Half-Way House," which was situated on a gradual incline between two-thirds and three-fourths of the way up the mountain, and were halfway up an area known as the "hump," which begins about 50 yards past the "Half-Way House," extends for about 100 yards and has an approximately 30 degree incline, when it started to rain. They immediately turned around and began to descend the "hump" to seek shelter in the "Half-Way House." The surface of the "hump" is smooth solid granite with moss or lichen growing on it in the area of the path which is slippery and no guard or hand rail is provided there. The rain made the surface of the granite very slippery and hazardous to walk on, but this danger was not apparent. After only a few steps, the wife slipped on the wet surface of the granite and fell down and then rolled down the incline some 100 to 200 feet, where she struck a large boulder located at the foot of the path at the beginning of the "hump," sustaining the alleged severe and permanent injuries for which the action is brought. The plaintiff wife had never been to Stone Mountain before, lived in south Georgia where the land is fiat, and was ignorant of the dangerous condition of the granite mountain when dry or wet. The injuries were proximately caused by the defendant's negligence (a) in knowing of the dangerous and hazardous condition of the granite when dry and when wet and failing to warn the plaintiffs of such danger; (b) in failing to post signs on the mountain and in the park to warn of such danger; (c) in failing to provide a safe path to climb the mountain; (d) in failing to provide a handrail; (e) in allowing said boulder to remain in the path; (f) in failing to erect a wall on the steep side of the mountain.
The defendant filed an answer and a motion for summary judgment, based upon the pleadings and depositions of both plaintiffs and the brother of the plaintiff husband. The latter deposed that he was about 2 or 3 feet behind the plaintiff wife, who was walking alongside and holding the hand of her five-year-old son, when the boy fell; that he stooped down to grab the boy and when he looked back up she had fallen; that he did not know what caused her to fall.
The plaintiff husband deposed that they had stopped at the "Half-Way Station" to rest for 15 or 20 minutes; that they had gotten within a third of being "all the way" when it started raining and they decided they'd better find a shelter; so they turned around and that's when "it happened"; that he did not know what caused her to fall.
The plaintiff wife deposed that it didn't look like rain when they began to walls up the mountain, or even when they reached the "Half-Way House"; that when they got about three-fourths of the way up, the rain came up suddenly and hard; that they continued to walk up the mountain in the rain for about three minutes; that, as she turned around seeking the shelter of a rock formation, holding her five-year-old son by the hand, she slipped and fell; that that was all she could remember; that she did not know what caused her to fall or what happened; that she did not remember running down the mountain; that she was wearing rubber soled tennis shoes at that time; that, as she ascended the mountain, she had observed that there were no handrails; and that she had never been to Stone Mountain before or climbed up a mountain, a rock mound or a granite surface before.
In opposition to the motion, the plaintiffs filed affidavits of the same three deponents above, plus that of the plaintiff husband's sister-in-law. These affidavits supplied the additional information that the area in which the plaintiff wife fell was smooth, solid rock, which was very slippery; that, shortly after her fall, a young boy's feet had slipped out from under him at approximately that same area; and that the defendant had given them neither verbal nor written warning of the dangerous, slippery condition of the smooth granite.
"Only in clear and palpable cases where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question. [citations]." Beck v. Wade, 100 Ga. App. 79, 83 (110 SE2d 43). On the motion for summary judgment the burden was on the defendant movant to produce evidence which conclusively eliminated all issues in the case, even those issues upon which the opposing parties plaintiff would have the trial burden, and the latter are given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, with the movant's papers being carefully scrutinized, while the plaintiffs' papers are treated with considerable indulgence. Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672), and cit.; Peacock v. Adams, 118 Ga. App. 728 (1) (165 SE2d 664).
"The true ground of liability of the owner or occupant of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm." Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (2a) (138 SE2d 77). "The presumption of the law is that the owner of a lot is acquainted with the condition of his own property, if a natural person, and if an artificial one, that it has such knowledge through its agents and employees." Nelson v. Central B. &c. Co., 48 Ga. 152. There is ample evidence that the rock surface of the mountain is smooth and slippery enough, especially in the rain, to cause persons walking thereon to fall. The defendant is presumed to be aware of this condition. Although the plaintiff wife could not state positively that she fell because of the slippery condition because the trauma of her injury blocked her memory, this theory of causation is supported by the circumstantial evidence.
It is contended that the plaintiffs had equal knowledge of the dangerous condition, both by their common knowledge of certain laws of nature and their observations during their ascent of the mountain, including the absence of a handrail. Mere knowledge of a defect, however, even though patent, is not equivalent to the knowledge or comprehension of the risk or danger involved, the plaintiff's knowledge thereof or lack of it being a jury question. Burns v. Great A. & P. Tea Co., 105 Ga. App. 823 (125 SE2d 687); Scott v. Rich's, Inc., 47 Ga. App. 548, 551 (171 SE 201); Glover v. City Council of Augusta, 83 Ga. App. 314, 316 (63 SE2d 422). "An invitee is not obliged to inspect the premises to discover latent defects nor even to observe all patent defects." Lane Drug Stores v. Brooks, 70 Ga. App. 878 (29 SE2d 716); Misenhamer v. Pharr, 99 Ga. App. 163, 166 (107 SE2d 875). A plaintiff is not required to guard against possible or contingent calamity. Western &c. R. Co. v. Ferguson, 113 Ga. 708, 713 (39 SE 306, 54 LRA 802). Here, the plaintiff wife had never climbed a mountain previously and, therefore, could not be charged as a matter of law with the knowledge that it would be slippery when wet. Her observation of the surface as she climbed it while dry would not demand a finding that she must have such knowledge of its danger when it was subsequently wet. Nor was she chargeable as a matter of law with the duty to anticipate the sudden rainstorm in which she was caught, it appearing that the weather was clear as she began her ascent. This case is different, then, from one in which the plaintiff is aware of the weather conditions and still proceeds recklessly notwithstanding the danger. Here, the plaintiff wife and mother was trapped in a sudden, heavy rainstorm on the side of a steep, slippery mountain with her five-year-old boy and was forced to proceed down the mountain by the very fact of the weather conditions--out of the necessity to seek shelter from them for herself and her young child.
Furthermore, there was an issue of fact as to whether the defendant represented the path used by the plaintiffs to be a safe one for invitees' use. It is alleged that there was a white painted line indicating the path. The defendant denied in its answer that it had painted the line, alleging it to have been done by some civic club prior to the defendant's assuming control over the mountain. A jury might still find, however, that the defendant's leaving the line intact might have misled invitees into assuming that the defendant was thus representing the path to be the customary and safe one. "An invitee need not choose the safest way across the owner's or proprietor's property. He may travel any way customarily used and reasonably safe." Peacock v. Adams, 118 Ga. App. 728 (2), supra. The defendant, being chargeable with the knowledge that invitees were customarily using this path, might have a correlative duty to make it reasonably safe for travel under foreseeable conditions, which certainly includes rainstorms. That this duty is recognized to an extent is shown by the fact that the defendant maintains a fence alongside the top of the steepest side of the mountain to prevent invitees from falling. Thus it appears that the mountain has not been left altogether in its natural and dangerous state, but has been somewhat modified for the safety, as well as the convenience and amusement of invitees.
Since the plaintiff wife did not have equal knowledge of the dangerous condition as a matter of law, then it might be found that the defendant was negligent, even if not in providing physical safety devices, in failing to warn her of such danger. Code 105-401; Lenkeit v. Chandler, 97 Ga. App. 769, 770 (104 SE2d 476), and cit. Thus, there being no showing that the injured plaintiff was aware of the danger and since assumption of the risk presupposes a knowledge of the danger assumed (Roberts v. King, 102 Ga. App. 518, 521 (116 SE2d 885); Herring v. R. L. Mathis Dairy Co., 118 Ga. App. 132, 139 (162 SE2d 863)), the plaintiffs are not precluded from recovering as a matter of law by assumption of the risk.
The court erred in granting summary judgment in favor of the defendant.
Troutman, Sams, Schroder & Lockerman, Robert L. Pennington, Henning, Chambers, Mabry & Crichton, Eugene P. Chambers, Jr., for appellee.
J. H. Highsmith, Cullen M. Ward, Frank M. Eldridge, for appellants.
ARGUED MARCH 3, 1969 -- DECIDED APRIL 11, 1969 -- REHEARING DENIED MAY 13, 1969 -- CERT. APPLIED FOR.
Friday May 22 17:43 EDT


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