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Action for damages. Fulton Superior Court. Before Judge Tanksley.
EBERHARDT, Presiding Judge.
2. The evidence does not show that plaintiff was guilty of such negligence as to bar recovery as a matter of law.
3. Evidence as to the cost of taking precautions or providing safeguards is relevant to the question of their feasibility for removing or minimizing danger.
Plaintiff appeals from the verdict and judgment in defendant's favor and from the order denying her motion for new trial, complaining principally of the direction of a verdict for the defendant at the close of her evidence. This evidence discloses that she sustained lacerations when she walked through a sheet glass sliding door on June 20, 1969, while a guest in an apartment owned by defendant landlord and leased to one James Williams, Jr. Plaintiff and Mr. and Mrs. Williams were friends, and plaintiff had agreed to assist them in moving into the apartment in Cobb County which had been built in 1967. The apartment in question had at its entrance a sliding glass door unit consisting of two panels of sheet glass, one in an aluminum frame approximately 1-3/4" -- 2" wide which was stationary, and the other in a similar frame which moved between two stationary tracks, one on the floor and one on the ceiling. When the door was open, the movable glass panel was positioned behind the fixed glass panel. To close the door, it was moved between the upper and lower stationary tracks and came to rest against the outer frame of the unit. There was a handle on one side of the movable panel and a recessed finger pull on the other. The movable panel was glazed with 3/16 sheet glass, approximately 34" by 76" in size. It had been cleaned the preceding day by Mrs. Williams and had no bars or decals to indicate the presence of the glass, which was clear and transparent.
On the day of the occurrence plaintiff, plaintiff's daughter, and the Williams' party arrived at the apartment sometime between 1 p.m. and 1:30 p.m. Plaintiff first entered the apartment through the sliding glass door and, during the course of the afternoon, she walked back and forth through the open door some 20 to 25 times bringing in boxes. Between 4:30 p.m. and 5 p.m., plaintiff came in through the open door and she and Mr. and Mrs. Williams sat down at the dinette table in the vicinity of the door for a rest period. The door was to plaintiff's side or back so that she would have had to turn to look at it. At some point, either during the rest period or before, plaintiff made some comment with respect to the door being clean and clear. There were also some comments during the break that the Williamses were considering putting decals on the glass because of their children running in and out.
It appears that the sliding glass panel was closed at the beginning of or during the rest period, probably by one of the children. Plaintiff testified that she did not close it and did not see anyone else do so. Mr. and Mrs. Williams testified that they did not close it. On cross examination, plaintiff testified: "A. I don't remember ever seeing the door closed. It was open when I came in to sit down, when I came through it. Q. You do not ever recall making any statement about the door was closed during this period of time you were seated? A. I never saw the door closed. I never saw anyone close it. Q. I call your attention to the deposition which was taken of you in this case . . . and I asked you the question, do you recall whether or not the air conditioning was on in the apartment at any time after you arrived up until the time this occurrence happened and your answer was, 'I think they left it off until we came in and sat down to drink the coke and then they closed it and turned it on, because the door stayed open and it was off, because I remember remarking, saying how hot it was, you know, in the apartment.' Do you recall that answer? A. I remember saying that but I just assumed someone, I mean I didn't understand, it confused me. I just assumed someone closed the door and turned on the air conditioning but I didn't see anyone close the door. It was open."
After plaintiff and the Williamses had been on the rest break for approximately thirty minutes, plaintiff walked over a few feet to Mrs. Williams at the laundry room, who mentioned she had some other things to get out of the car. Plaintiff volunteered to get them and turned to walk back out the door. As she described it on direct examination, "I turned around to walk out and it just appeared to be an open door and I just walked. Q. As you walked up to this opening, was there any difference in appearance, I mean as it appeared to you from what it had been when you had been walking back and forth through there? A. No, sir, it just looked like an open door outside. Q. What occurred then? A. When I started walking I hit it." On cross examination she testified, "When I turned around to go out it looked like it appeared to be an open door just like I was just going out the door again. Q. You just didn't realize the door was closed, isn't that correct? A. Yes, sir."
Mr. Michael, who had been in the glass business approximately 25 years, testified that he was familiar with sheet glass and with tempered glass; that tempered glass was probably about 7 1/2 times stronger than sheet glass; that breaking sheet glass is considerably more dangerous to people than breaking tempered glass, because sheet glass breaks in large slivers and pieces and causes lacerations, while tempered glass breaks in very small pieces; that tempered glass was available for use on the door in 1967, when it was first installed; that tempered glass was used in sliding glass doors in 1967 in the Atlanta area, including Cobb County; that in 1967, when the apartments were constructed, approximately 75% of the sliding glass doors in Cobb County used sheet glass, while approximately 25% of such doors used some type of safety glass, probably tempered glass, He further testified: "Q. Mr. Michael, are you familiar with the procedure of putting bars or decals or anything on glass doors? A. Yes, sir. Q. Do you know whether there is a custom or not of putting decals or bars across glass doors? A. Yes, sir, it is. Q. And do you know why this is done? A. Primarily because of safety factors, reasons. Q. How would this make it more safe? A. Well, being able to see the decal and see the bar instead of looking through clear glass. Q. Tell us whether you have any knowledge accumulated in your business or otherwise about the frequency of breaking of glass doors. I will ask you have you acquired any knowledge about the frequency of glass doors being broken? A. Yes, sir, we are regularly replacing glass in patio doors that have been broken. Q. Have you acquired any knowledge in respect to people being injured by glass doors? A. Yes sir. Q. And I will ask you whether or not you know whether most of the injuries are caused by tempered glass or untempered glass? A. My experience is the serious injuries are caused by non-tempered glass . . . Q. I will ask you whether or not on construction projects you have ever seen writing or tapes put across glass doors, have you seen that? A. Yes, sir, this is done quite regularly by the trade. It is for protection. Q. And why is it done, if you know? A. To prevent people from accidentally walking through the glass."
Dr. Patterson, after describing the surgery, treatment, etc., for plaintiff's injuries, testified: "Q. Now, Doctor, have you ever treated injuries of this general nature as a result of glass doors? A. I have seen a good number of such injuries."
Remedial legislation is found in Ga. L. 1970, pp 151-153, as amended (Code Ann. 92A-2001 et seq.); 1 but since this legislation was not in effect at the time of the injury complained of, and hence will not support a finding of negligence per se, the question before us is whether the evidence otherwise would have authorized a finding of negligence on the part of defendant landlord in maintaining the sliding door with sheet glass without decals or other markers to indicate when the door was closed. The trial judge apparently felt that since sheet glass was frequently used in this type construction, the question as to negligence in this regard was doubtful; that even if transparent tempered glass had been used, plaintiff, under the circumstances of the case, would nevertheless have walked into the door and perhaps suffered a bruise; and, more importantly, that he felt Brand v. Pope, 103 Ga. App. 489 (119 SE2d 723) required him to direct the verdict for defendant.
In the Brand case, plaintiff, who was treated by this court as an invitee, alleged that she had been visiting with defendant's wife and another in defendant's living room. Between the living room and the Florida room there was a sliding glass door which had remained open most of the afternoon. When defendant arrived home and was proceeding through the Florida room to the living room, plaintiff went forward to greet him and crashed through the glass panel door which had been closed by defendant's servant sometime during the afternoon. This court, in affirming the sustaining of defendant's general demurrer, construed the petition against plaintiff as alleging only that defendant should not have had a sliding glass door between the two rooms, "for no defect in the construction of the door itself was alleged nor was it alleged that the defendant was negligent in the maintenance of such door other than allowing it to be closed without prior warning to the plaintiff." P. 491. The holding there was that "The door was to be expected, and under the allegations of the petition, it could not have been completely invisible and, since no defect in the manner of construction was alleged, the plaintiff's petition was properly dismissed on general demurrer, since the petition nowhere makes it appear that the premises were less safe than those provided by ordinarily prudent owners and occupiers of land. And it is only where premises are less safe than those provided by ordinarily prudent owners and occupiers of land that a warning need be given to an invitee of their condition." P. 492.
We do not regard Brand as controlling here, for in that case the distinction between the safety characteristics of sheet glass and safety glass was not developed. In the instant case there is sufficient evidence to authorize a jury to conclude that the use of sheet glass rather than some type of safety glass, such as tempered glass, particularly when unmarked by decals or otherwise, rendered the premises less safe than those provided by ordinarily prudent landlords, owners, or occupiers of land. This evidence removes the instant case from the Brand ruling. Cox v. DeJarnette, 104 Ga. App. 664, 678 (123 SE2d 16). See Code 61-112 as to the landlord's duty.
Brand was distinguished and not followed in two glass door cases, Sanders v. Alpha Gamma Alumni Chapter, 106 Ga. App. 137 (126 SE2d 545) and Massey v. Hilton Heights Park, 121 Ga. App. 214 (173 SE2d 396). In the latter case, the minor plaintiff and others stopped to look at a house which was for sale. "There was an exit from the den or family room of the house onto an open area porch in the back yard. The exit consisted of a unit of about normal door height, built into the wall. The unit consisted of a large metal frame which enclosed two panels of glass. Each panel of glass was in turn enclosed in its own metal frame within the larger frame. One glass panel was stationary. The other was movable and could be used as a door by sliding it past the stationary panel. It is not disputed that the plaintiff struck the stationary panel and it broke, causing her injuries." P. 215. There was evidence that the glass panel was clear and transparent and gave an illusion of space when looking into the back yard from inside the house, and that there were no strips, markers, or stickers on the panel to indicate that it existed. In reversing the grant of summary judgment for defendants, we stated, inter alia, "[W]e do not agree with the defendants' contention that the fact that the injury was connected with a glass-door unit of a type which is widely used in most modern residential buildings is determinative of the case and requires a finding that there can be no negligence attributable to defendants as a matter of law. We can not say that glass doors or glass panels in general are not perils requiring no precautions or warning." Hn. 1.
This holding is in accord with negligence law generally. "Although there is some authority in trade and business cases to a different effect, the rule which has been supported generally by most of the authorities and which appears to be sound is that conformity to custom is not in itself the exercise of due care. Usage and custom do not justify negligence. A number of cases support the view that since negligence is the failure to do that which an ordinarily prudent man would do, or the doing of that which an ordinarily prudent man would not do, under the same circumstances, an ordinary custom, while relevant and admissible in evidence on the issue of negligence, is not conclusive, especially where the custom is clearly a careless or dangerous one. What usually is done may be evidence of what ought to be done, but in the last analysis, what ought to be done is fixed according to the standard of the ordinarily prudent man, whether or not it is customary to comply with that standard." 57 AmJur2d 428, Negligence, 78. Accord: Shirley v. Woods, 98 Ga. App. 111, 115 (105 SE2d 399); Dawkins v. Jones, 119 Ga. App. 796, 798 (168 SE2d 881); Stuckey's Carriage Inn v. Phillips, 122 Ga. App. 681, 688 (178 SE2d 543); Georgia-Alabama Coca-Cola Bottling Co. v. White, 55 Ga. App. 706, 713 (191 SE 265); City of Macon v. Yaughn, 83 Ga. App. 610, 614 (64 SE2d 369); Arnold v. Chupp, 93 Ga. App. 583, 585 (92 SE2d 239); Prosser, Torts 33 (3d Ed. 1964); 2 Harper & James, Torts 17.3 (1956).
We conclude that under the evidence of this case, the jury might properly have found that defendant's use of sheet glass, which has a greater potential for harm than safety glass, coupled with defendant's failure to mark the glass with decals or otherwise, constituted actionable negligence.
2. Whether plaintiff's injuries were proximately caused by her own negligence was also for the jury. Had markers been placed on the glass sufficient to divert the eye, the illusion of space which plaintiff suffered, causing her to assume the glass was open, might have been prevented. And, if, during the rest break, plaintiff assumed or became aware that the glass had been closed, and had not been reopened, we are not prepared to hold that her momentary forgetfulness of the hazard constituted negligence as a matter of law, particularly where the hazard consisted of the invisibility of transparent glass which, by its very nature, may deceive the most prudent person.
3. Plaintiff enumerates as error the trial court's refusal to permit her to introduce evidence relating to the difference in cost between the installation of sheet glass and tempered glass, and evidence as to the cost of placing decals or markers on the glass door. It is her contention that evidence as to these costs is relevant in determining what a reasonably prudent landlord would do under the circumstances. While we are cited no cases in our own courts as to the admissibility of such evidence, it appears to be the rule elsewhere that the cost of taking precautions or providing safeguards may be shown on the question of their feasibility for removing or minimizing danger. Pocholec v. Giustina, 224 Ore. 245 (13, 14) (355 P2d 1104); Cole v. North Danville Co-Op Creamery Assn., 103 Vt. 32 (13) (151 A 568); Presti v. O'Donahue, 25 Wis. 2d 594 (131 NW2d 273); Tvedt v. Wheeler, 70 Minn. 161 (3) (72 NW 1062); Vegodsky v. City of Tucson, 1 Ariz. App. 102 (399 P2d 723); Spilene v. Salmon Falls Mfg. Co., 79 N. H. 326 (5) (108 A 808). Accordingly it was error to exclude this evidence.
Judgment reversed. Deen and Clark, JJ, concur.
1  "An Act to prohibit the use, sale, fabrication, assembly, glazing, installation of products commonly known as sliding glass doors, entrance doors, fixed glazed panels, storm doors, shower doors; tub enclosures or other glazed structures for use in hazardous locations, or on any public bus or train unless they contain safety glazing material; to define terms; to require certain labeling; to require posting, painting or marking of certain doors; to provide penalties; to repeal conflicting laws; and for other purposes."
VanGerpen & Bovis, John M. Bovis, Stephen J. Kyle, for appellee.
Kyle Yancey, for appellant.
Friday May 22 14:58 EDT

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