Holtzclaw v. Lindsay , 122 Ga. App. 703 ( 1970 )

Hall, Presiding Judge.

Husband and wife plaintiffs appeal from the grant of a summary judgment to defendant in two suits for injuries sustained by the wife when she slipped on ice in front of defendant’s place of business.

The petitions allege that defendant is the proprietor of a beauty parlor. When plaintiff wife entered his shop (about 11 a.m.) it was cold and drizzly outside. By the time her beauty treatment was completed, about two and a half hours later, the temperature had dropped and a thin coat of ice covered the platform in front of the door. Carrying a child in her arms, she attempted to cross the platform and fell. Plaintiffs further allege that defendant had superior knowledge of this dangerous condition because the wife was sitting in a booth from which she could not see outside; while defendant’s receptionist was sitting near a window, some employee went out for food during the time in question, and a weather report was broadcast over the shop radio.

The facts in this case are undisputed and the sole question at issue is whether the defendant owed or violated any duty toward the plaintiff. "The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he had invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (138 SE2d 77). See also McKnight v. Guffin, 118 Ga. App. 168 (2) (162 SE2d 743); Feldman v. Whipkey’s Drug Shop, 121 Ga. App. 580 (2) (174 SE2d 474). This court has decided several cases over the past few years which are controlling in the case sub judice. While there were dissenting opinions in some instances, the holdings have been consistent.

"This court has held . . . that a business proprietor cannot reasonably be expected to prevent the presence of some water on a normal floor during a period of time when it is continually raining. Gibson v. Colsolidated Credit Corp., 110 Ga. App. 170 (2c) (138 SE2d 77); Card v. Chichester’s Baconfield Pharmacy, 111 Ga. App. 358 (141 SE2d 790); Angel v. Varsity, Inc., 113 Ga. App. 507 (148 SE2d 451).” Bryant v. Rucker, 121 Ga. App. 395, 396 (173 SE2d 875). As the court said, in the Angel case: "There is usually no duty on a proprietor to go to such extreme lengths in the exercise of ordinary care.” The Bryant and Gibson cases were whole court decisions. It seems axiomatic that if a business proprietor is not required to be continually mopping up rainwater which is brought inside his store by customers, he is certainly not required to be continually mopping up rainwater outside his store in the falling rain. The same principle should also apply to a continuing drizzle which is freezing because of the temperature. See Fincher v. Fox, 107 Ga. App. 695 (131 SE2d 651) and the recent case Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193). The plaintiff’s own testimony is that it was "drizzling” when she left and that "ice” had formed because of the cold weather. We see no duty or breach of duty here on the part of the defendant.

The plaintiff generally alleges defendant’s constructive superior knowledge of the icy condition. However, the plaintiff testified that a radio was playing in the shop and prior to leaving she heard someone say — "It looks bad outside.” The plaintiff actually stood outside a few seconds on the platform before she ventured forth — she went to the door and opened it, stepped one foot out, she saw it was drizzling and cold, she reached back and picked up her baby, made another step, turned and closed the door, took another step and slid down.

Argued June 9, 1970 Decided October 28, 1970. Greer & Murray, Frank J. Klosik, Jr., for appellants. Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Edwards, Bentley, Awtrey & Parker, Fred D. Bentley, Sr., for appellee.

These undisputed facts pierced the allegations of the plaintiff’s pleadings as to defendant’s superior knowledge and cast the burden on the plaintiffs to produce counterproof or suffer judgment. Crutcher v. Crawford Land Co., 220 Ga. 298, 304 (138 SE2d 580); Scales v. Peevy, 103 Ga. App. 42 (118 SE2d 193); Studstill v. Aetna Cas. &c. Co., 101 Ga. App. 766, 768 (115 SE2d 374). The rather tenuous assumptions plaintiff urges— that the receptionist sitting inside in the front of the shop could have seen through the glass door and should have noticed thát the ice (which plaintiff said had no color) was forming; and that (based on a snatch of conversation plaintiff overheard concerning sending out for hamburgers) someone may have gone out and come -back via the platform some two hours prior to plaintiff’s departure, could have noticed ice was forming (if it was forming at 11:30 a.m.) and should have communicated this fact to the management — did not create a jury question as to whether the proprietor had knowledge superior to that of the plaintiff concerning the icy condition of the platform.

The trial court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Eberhardt and Quillian, JJ., concur. Pannell, Deen, Whitman and Evans, JJ., dissent.