Bailey v. Wohl Shoe Co.

Stolz, Judge. In this case the plaintiff sustained certain injuries as the result of a slip and fall and sued Wohl Shoe Co., Wohl Shoe Co. of Georgia, R. H. Macy & Company, d/b/a Davison’s in Atlanta, Mrs. Nina West Russom and the City of East Point. Defendant Mrs. Russom was alleged to have been in control of a driveway which crossed a public sidewalk, in which there was a deep crack, which had been allowed by the joint defendants Russom and City of East Point to exist for a long period of time prior to the date of the plaintiffs accident. The plaintiff allegedly struck her [373] arms and head against a rock wall when she fell on the property owned by Mrs. Russom. After interrogatories were taken from the parties and the plaintiff s deposition was taken, defendant Mrs. Russom made a motion for summary judgment. This evidence showed that the plaintiff was aware of the crack and had been for a number of years; that the driveway was slanted (inclined/declined); that, as she started across the driveway, her feet began to slide out from under her and, as she pitched forward, her foot hit the "crack” and she fell into the wall; that the wall was not on Mrs. Russom’s property but on that of a neighbor, Mrs. Teal; that the weather was fair and sunny; that the plaintiff had lived in the neighborhood for 20-21 years; that she had walked the sidewalk many, many times; that the plaintiff knew that the "crack” in the concrete had been there several years; that the "crack” in the concrete was in reality a raised edge or "lip,” formed when a former neighbor had his driveway paved 10-12 years previously, and the concrete had spread over onto defendant Mrs. Russom’s driveway. The trial court sustained the defendant Mrs. Russom’s motion for summary judgment and the plaintiff appeals. Held: Generally, the owner of property abutting a public sidewalk in a municipality, is not liable to a member of the public for injuries resulting from a defect in such sidewalk which was not caused or created by the abutting owner, as the law places upon the municipality the duty of keeping the sidewalks safe for travel in the ordinary manner. Reed v. Batson-Cook Co., 122 Ga. App. 803, 805 (178 SE2d 728); Code §§ 69-301, 69-303; Rhodes v. Perlis, 83 Ga. App. 312 (63 SE2d 457); City of East Point v. Mason, 86 Ga. App. 832, 834 (72 SE2d 787). The record discloses that the "crack” or "lip” was not created by defendant Mrs. Russom. Further, the evidence conclusively shows that the plaintiff had been [374] fully aware of the condition of the sidewalk for years and had traveled across it "many, many times.” In cases of this nature, the plaintiff must show that at least two elements exist: (1) Fault on the part of the property owner, and (2) ignorance of the defect on the part of the injured party. See Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 SE2d 680). "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” Code § 105-603. Where the danger is apparent, or is reasonably to be apprehended, the rule requiring the plaintiff to avoid the consequences of the defendant’s negligence applies. Collins v. Augusta-Aiken R. &c. Corp., 13 Ga. App. 124 (2) (78 SE 944). Argued November 6, 1972 Decided March 2, 1973. Saul Blau, for appellant. Smith, Cohen, Ringel, Kohler, Martin & Lowe, Warren C. Fortson, for appellees. The trial court correctly sustained defendant Mrs. Russom’s motion for summary judgment. Judgment affirmed. Bell, C. J., Eberhardt, P. J., Deen, Quillian and Clark, JJ., concur. Hall, P. J., concurs in the judgment. Pannell and Evans, JJ., dissent.