Nathan v. Oakland Park Supermarket, Inc.

Whitman, Judge. In this action for personal injury resulting from a fall, plaintiff, a customer at defendant’s grocery store, alleges that she fell from slipping on a candy wrapper which was either picked up by her shoe from the store floor as she passed over it, or which was lying on the "sidewalk” just outside the store — her fall having occurred there — defendant’s motion for summary judgment was granted. The evidence submitted by movant falls short of demonstrating that plaintiff can in no event recover, for that it does not appear whether the "sidewalk” was a public one (as to which see Ellis v. Southern Grocery Stores, 46 Ga. App. 254 (167 SE 324); Rhodes v. Perlis, 83 Ga. App. 312 (63 SE2d 457); Crowe v. Mason, 86 Ga. App. 832 (2) (72 SE2d 787); City of Decatur v. Robertson, 85 Ga. App. 747, 754 (70 SE2d 135), and Reed u. Batson-Cook Co., 122 Ga. App. 803 (178 SE2d 728)), or a part of defendant’s premises. Cf. Willis v. Byrd, 116 Ga. App. 555 (158 SE2d 458). It is true that a sidewalk has been defined in Hancock v. Rush, 181 Ga. 587, 600 (183 SE 554) as being "that part of a public street or highway designed for the use of pedestrians,” but that case dealt with the matter in deciding whether a city was authorized to pave sidewalks, along with the street itself, using funds derived from street improvement [592] bonds which were to be repaid from paving assessments. The context here is different. A diagram from which plaintiff testified in the giving of her deposition (which defendant used in support of its motion) indicates that the "sidewalk” abutting the store adjoins a parking area, not a street. Thus a question of fact as to the matter is unresolved. Argued September 11, 1970 Decided April 2, 1971 — Cert, applied for. Louis H. Mitchell, L. B. Kent, for appellant. Swift, Pease, Davidson & Chapman, William G. Scrantom, Jr., John T. Lane y, III, for appellee. Another question of fact which may very well be of significance is whether defendant, or its agents in charge, had or should have had knowledge of the presence of the candy wrapper — wherever it was, if on defendant’s premises — and whether ordinary care would have required them to have removed it before plaintiff became involved with it. These matters were not resolved on the proceeding for summary judgment, and are jury issues. Judgment reversed. Eberhardt, J., concurs. Pannell, J., concurs specially.