1. Whether the plaintiff, who had purchased groceries in a grocery store and was returning to a parked car when she stepped in a hole and was injured, was guilty of such negligence as to bar her recovery because of her action in walking from the grocery store carrying three bags of groceries, which obscured her vision so that she did not see the hole in the driveway on the defendant's premises, is a matter for the jury to determine under the facts disclosed on the motion for summary judgment. See J. C. Penney Co. v. Knight, 119 Ga. App. 70 (1) (166 SE2d 434)
2. The defendant, having made the motion for summary judgment, must produce evidence which conclusively negates at least one essential element entitling plaintiff to a recovery under every theory fairly drawn from the pleadings and the evidence. Saunders v. Vikers, 116 Ga. App. 733 (2) (158 SE2d 324)
; Calhoun v. Eaves, 114 Ga. App. 756
, 759 (152 SE2d 805
). "This is true because the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence or non-existence of facts." Moore's Federal Practice, Vol. 6 (2d Ed.), par. 56.15 , p 2342. See also Colonial Stores v. Turner, 117 Ga. App. 331
, 333 (160 SE2d 672
); Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205
, 206 (163 SE2d 256
); International Brotherhood v. Newman, 116 Ga. App. 590
, 592 (158 SE2d 298
3. The grant of a summary judgment may be improper where, at the trial, the grant of a directed verdict may be proper, when the party making the motion for summary judgment is not required to carry the burden on the trial of the case. Armco Steel Corp. v. Realty Investment Co., 273 F2d 482.
4. While a pedestrian is not necessarily entitled to an absolutely level walkway, and the owner is not required to keep areas used for walking free from irregularities and minor defects (see Sanders v. Jefferson Furniture Co., 111 Ga. App. 59 (140 SE2d 550)
; Associated Distributors, Inc. v. Canup, 115 Ga. App. 152
, 153 (154 SE2d 32
)), the situation here disclosed a deep hole in an area customarily used for parking and for egress and ingress to and from the store premises.
5. Upon application of the above rules to the facts in the present case, the trial court did not err in refusing to grant the motion for summary judgment of the defendant on the merits of the complaint, the defendant not having negatived any material issue necessary for plaintiff's recovery.
Grace W. Thomas, for appellee.
Appellee Heard brought an action against appellant Werbin & Tenenbaum, Inc., doing business as Great Savings Store, seeking recovery of damages for injuries received when she allegedly fell on the premises of a store operated by the defendant. The defendant answered, denying the material allegations of the complaint, and subsequently moved for summary judgment based upon the pleadings, the deposition of the plaintiff taken by the defendant for purposes of discovery, the answers of plaintiff to defendant's interrogatories, and an affidavit of Harry Werbin. The plaintiff responded with an affidavit from her attorney who investigated the case. The trial judge denied the motion of the defendant and the defendant, with proper certificate of the trial judge, appeals to this court. The material allegations of the petition are set forth in paragraphs 5 and 7 of the complaint as follows: "5. On August 11, 1968, plaintiff, an invitee in defendant's store, bad been in the store and purchased groceries. After paying for her groceries and having her arms full of groceries, plaintiff came out of defendant's store and turned the corner to walk down the driveway of defendant's supermarket where customers park cars. There was a deep, dangerous hole in the driveway near the store, but plaintiff did not know that the hole was there, although defendant well knew it was there; and when she started to walk down the driveway with her arms full of groceries, her left foot suddenly went into the large deep hole, throwing plaintiff to the pavement and breaking her left ankle in several places, seriously and permanently injuring plaintiff. . . 7. Plaintiff alleges that the defendant had permitted the defective, dangerous hole in the pavement, which actually constituted a mantrap, to remain on its premises for a period of at least a month before plaintiff was injured, and the defendant knew of the existence of the dangerous pavement, but notwithstanding this knowledge said defendant had failed to remedy the defective, dangerous condition of the premises and approaches to its store where it invited customers to come and trade." The answers of the plaintiff to the interrogatories of the defendant produced no evidence material to the issue before the court. The plaintiff's deposition taken by the defendant proved that she was an invitee of the store, that the automobile in which she came was parked on the edge of the driveway or alleyway which was customarily used by customers of the store in which to park their cars, that she fell in a hole in the driveway or alleyway when she was returning to the automobile from the store with three bags full of groceries, which interfered with her view of the ground in front of her. She did not see the hole when she walked into the store and she did not know exactly how big or deep the hole was, but it was deep enough to cause her to fall. Her attorney who investigated described the hole
as a deep hole, and that the hole gave the appearance of having been there for some time. The affidavit of Mr. Werbin shows that he was familiar with the surroundings of the store involved, the parking area, driveway and "alleyway" adjacent thereto, that the "alleyway" was designed only for vehicular traffic and to service the rear of said store where employees only were allowed to park, which parking area was enclosed by a chain link fence and that there were no parking places for automobiles in said area.