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Lawskills.com Georgia Caselaw
LUNSFORD v. CHILDS et al.
39745.
Action for damages. Elbert Superior Court. Before Judge Skelton.
JORDAN, Judge.
The trial court did not err in sustaining the general demurrer to the petition.
Eva C. Lunsford filed suit in the Superior Court of Elbert County against J. L. Childs, Sr., J. L. Childs, Jr. and J. S. Tiller to recover damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendants. The petition alleged that the plaintiff had contracted with the defendants J. L. Childs, Sr. and J. L. Childs, Jr. to repair her kitchen floor by installing new plywood and vinyl plastic tile thereon; that the work commenced on June 14, 1961, and when the plaintiff arrived home at approximately 3:15 p.m. on that date the work was then in progress, the plaintiff's refrigerator and other articles of furniture having been removed from the kitchen; that said work continued until approximately 4 or 4:15 p.m. when all tile and plywood had been completely installed, at which time the defendant J. L. Childs, Jr., swept the floor, removed all loose tile and trash, rolled the floor with a weighted roller, replaced the refrigerator in the kitchen and drove away from the premises, leaving only the defendant Tiller who was completing the final step of the work by installing shoe molding around the room edges. The petition alleged that at this time the plaintiff's refrigerator was situated up against the wall just to the left of the door in said wall, which door leads from the den to the kitchen; that the plaintiff, observing that the work had been completed other than the completion of the molding and having seen the defendant Childs sweep the floor, entered the kitchen from the den, turned left and proceeded to the refrigerator; that unknown to the plaintiff the defendant Tiller had utilized a small fine-tooth coping saw in the installation of said molding, and said saw had caused extremely fine and minute particles of sawdust to be deposited on the kitchen floor in the vicinity of the refrigerator at the time in question, rendering the floor extremely slippery; and that said sawdust because of its color and texture was not distinguishable to the eye and was not in fact seen by petitioner on the occasion in question. The petition further alleged that when the plaintiff had reached a point almost directly in front of the refrigerator her foot came in contact with the slippery, sawdust-covered surface of the floor, causing her to slip and fall. The petition set forth in detail the extent of plaintiff's damages and alleged that the defendants were negligent as follows: "(a) In causing the fine and minute particles of sawdust to be deposited on the surface of the new vinyl tile floor near the front of plaintiff's refrigerator, where defendants well knew that such sawdust (1) was not likely to be seen by plaintiff, (2) was permitted to remain at a place in the floor likely to be traversed by plaintiff, and (3) was of such composition and nature known to the defendants as to render the surface of said floor extremely slippery and dangerous to persons walking on same.
"(b) In failing to post barricades or other warning signs at the entrance door leading from the den to the kitchen, warning persons about to enter that although the work ostensibly was almost completed, the floor was still in a slippery and dangerous condition.
"(c) In failing and refusing to warn or notify plaintiff after defendant Tiller became aware of her entry into the kitchen, of the slippery and dangerous condition of the floor.
"(d) In failing to exercise ordinary care to sweep up all fine sawdust so as to prevent its becoming or remaining present on the surface of the floor in such a manner as to constitute a threat to occupants of the house."
The trial court sustained the general demurrer to the plaintiff's petition and the exception is to that judgment.
The cause of action in this case is predicated upon the alleged acts of negligence of the defendants in causing particles of sawdust to be deposited upon the plaintiff's kitchen floor and in failing to barricade the area or otherwise give warning of the alleged dangerous condition thus created. The facts set forth in the petition disclose that these acts complained of occurred while the work which the plaintiff had contracted to be performed in her kitchen was still in progress and that the plaintiff's injuries occurred when she, with actual knowledge of this fact, entered that part of the kitchen area in which the defendant Tiller was then working where she slipped and fell.
Under these circumstances, it cannot be said that the defendants, in causing sawdust to be deposited upon the floor incidental to the installation of the molding as part of the work which they had contracted to perform and in allowing said sawdust to remain on the floor while the work was presently in progress, violated any duty which would give rise to rights in the plaintiff. Ordinary care, which is the test of the defendant's liability in a case such as this, simply requires the exercise of due care under the circumstances, which involves a degree of caution commensurate with the danger involved. Armor Gas Corp. v. Davis, 93 Ga. App. 563, 565 (92 SE2d 244). One is not liable for injury to another where his duty is that of ordinary care merely because of failure to exercise that degree of care which would have absolutely prevented injury. Richardson v. Pollard, 57 Ga. App. 777 (196 SE 199).
Furthermore, it is our opinion that, irrespective of the question of defendants' alleged negligence, the plaintiff could not recover in this case since she should have reasonably apprehended the existence of hazardous conditions in the working area and in the exercise of ordinary care for her own safety should have refrained from entering that part of her kitchen where the work was then in progress.
The trial court did not err therefore in sustaining the general demurrer to the petition.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.
Erwin, Birchmore & Epting, Eugene A. Epting, contra.
Heard & Leverett, E. Freeman Leverett, for plaintiff in error.
DECIDED JANUARY 10, 1963.
Friday May 22 22:23 EDT


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