Brand v. Pope

Nichols, Judge. The allegations of the plaintiff’s petition show that she was an invitee in the defendant’s home and that she was injured while she occupied such status. The allegations of negligence are all based on the premise that the defendant should not have had a glass sliding door between the “living room” and the “Florida room” of his home, 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. Before a recovery is authorized for the plaintiff in an action against an owner and occupier of land for injuries occasioned by the plaintiff while an invitee on such premises it must be shown that the conditions allegedly causing the injuries were less safe than those provided by ordinarily prudent owners and occupiers of land for their invitees. See Pettit v. Stiles Hotel Co., 97 Ga. App. 137 (102 S. E. 2d 693), and citations. Nor does the mere fact that a plaintiff is injured without fault on her part authorize a recovery, for it is the negligence of the defendant in a tort action that authorizes the recovery of damages by the plaintiff and not merely the injury, for if neither party is negligent the occurrence is an “accident” in the eyes of the law, and no recovery is authorized in such cases. See Fair v. Huddle, 98 Ga. App. 466 (106 S. E. 2d 72), and citations. The sliding door in the present case was between rooms of the defendant’s home and certainly, in the absence of allegations *492 that the rooms'were constructed in-a manner that suggested the absence ’of the door (e.g-., a finished archway with no. provisions for a ’door) a .door is expected between-rooms.. The plaintiff alleged that the “door was composed of clear glass-and unmarked in any manner.” Construing such allegation, as it must be construed on general demurrer, against the pleader, • it ■ must -be construed as alleging that the glass panel was not. detectable- but •not pas an allegation that no “metal” of other hardware was'used in constructing the door (frame, handle, lock, .etc.), *or ’that no track-was provided fo-r’such door to move -in'when it'was- being opened and closed. ■ In the case- of Rosenberg v. Hartman, 313 Mass. 54, 55- (46 N. E. 2d 406),- the - Supreme - Court s of • Massachusetts said, with, reference to a case, wherein,.the plaintiff was-injured-when -he'walked -into a closed door-at,the entrance -of a'Store: “We .do- not think negligence-ought-to be found-merely because-the door was-made of one large piece of-glass, 'It could-not--have -been wholly invisible. - - Its handles',- lock,- and fittings were in plain sight. A dooris-to be expected-at the- entrance- of--a store. - A- door of this kind is-to-be classed- with other forms, of-construction such as various types, whether new or old, of doors, floors, stairs,-and ramps, not out-of repair,-upon which, it .is possible for an invitee.-to receive injury, but which, are not. of such, a character, that danger -is reasonably to be anticipated, from them to persons.exercising ordinary■ care.-’A. While..sueh'-decision is,-of course,-not binding upon this court, -the- holding- is • sound, and ■ applicable to the facts in thé present- case.. The- door was-to he 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.-pwners .and- qccupiers 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.- Judgment affirmed. Felton, C.J.,,and Bell, J.rconeur.