Pullen v. Oxford

Smith, Judge. In this slip and fall case, Sally Pullen and her husband brought suit against I. D. Oxford and Oxford Flea Market to recover for injuries incurred by Pullen when she stepped off a sidewalk while exiting the flea market. The trial court granted Oxford’s motion for summary judgment, and this appeal ensued. Because we conclude that the trial court correctly granted summary judgment to Oxford, we affirm. The record shows that Pullen had visited the flea market many times, but had been to the “new side” only once before. The paving ended with the sidewalk, and Pullen claimed that soil around the sidewalk had been washed away, causing a gully containing rocks and cement. She stepped on a rock and twisted her ankle, causing her to fall. Her husband stepped off the sidewalk without incident. 1. The Pullens first assert that the trial court erred in denying their motion to dismiss Oxford’s motion for summary judgment as untimely. We do not agree. USCR 6.6 provides that “[mjotions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.” Although Oxford’s motion for summary judgment was filed somewhat later than is usual, the record shows that USCR 6.6 was not violated, and the trial court so found. No continuance of the trial was sought or granted because of the motion for summary judgment; “[ijnstead, the trial was obviated by the grant of appellees’ motion for summary judgment, which was filed more than 30 days before the scheduled date of trial.” Henrickson v. Pain Control &c. Inst., 205 Ga. App. 843, 845 (3) (424 SE2d 27) (1992), rev’d on other grounds 263 Ga. 331 (434 SE2d 51) (1993). The trial court did not err in denying the Pullens’ motion. 2. The Pullens contend the trial court erred in finding their claim of negligence per se without merit. They contend that Oxford was negligent per se in that the dropoff from the sidewalk to the surface below was ten inches, violating the Georgia Standard Building Code (1991 ed.), § 1108.3.1, which provides in pertinent part that the height of “risers” shall not exceed 7 3/4 inches. But this ignores the clear language of the Code defining the structural elements in ways that make clear that these specifications have no application here. — 783 — Section 1108.3.1 is found in the Code chapter captioned “Means of Egress.” It provides that “[xn]eans of egress shall consist of continuous and unobstructed paths of travel to the exterior of a building” (Emphasis supplied.) Standard Building Code, § 1101.1.2. Further, although in her brief Pullen refers to the dropoff from the sidewalk curb as a “riser,” it cannot reasonably be so construed when the only references to “risers” in the Code are to those found “in stairs.” Standard Building Code at § 1108.3.1. The curb is not part of stairs. Neither is the sidewalk a “court,” as urged by the dissent.1 As long ago as 1848, in Persons v. Hight, 4 Ga. 474, 485-486, our Supreme Court held that “[t]he current of authority in this country, at least at the present day, is in favor of reading [statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” In Earth Mgmt. v. Heard County, 248 Ga. 442 (283 SE2d 455) (1981), the Supreme Court held that ‘‘[t]his principle remains intact today.” Id. at 444. The trial court correctly found that Pullen’s “accident did not take place on the ‘paths of travel to the exterior of a building,’ ” and that the specifications in the Code did not apply. The Pullens have presented no evidence that any other statute, regulation, or ordinance was violated, and their allegation of negligence per se must therefore fail. 3. The Pullens maintain that other jury issues remain for adjudication regarding whether Oxford was negligent. We do not agree. Summary judgment is proper when the moving party shows that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). In this case no material issue of fact remains for jury adjudication; the facts are not in dispute. As a defendant, Oxford may prevail on its motion if it shows an absence of evidence to support at least one essential element of Pullen’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). To recover, Pullen must show that she fulfilled her duty to exercise ordinary care and avoid those things that might harm her. Minor v. Super Discount Markets, 211 Ga. App. 123, 124-125 (438 SE2d 384) (1993). Because Oxford showed that she did not do so, summary judgment was appropriate. Even if erosion had caused the dropoff from the edge of the curb to become steep and had exposed an uneven surface, this constituted a static condition. Pullen admitted that nothing interfered with her ability to see it or distracted her from looking. The condition was open and obvious. Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 — 784 — SE2d 147) (1992). It is apparent from Pullen’s deposition testimony that in stepping off the curb, she relied upon her expectations rather than on her senses. Had she looked, she could easily have seen that the dropoff was steeper and more treacherous than she was expecting it to be. In failing to do so, she failed to exercise ordinary care for her own safety. Because Oxford showed the absence of this essential element of Pullen’s case, the trial court correctly granted its motion for summary judgment. Judgment affirmed. Andrews, C. J, Birdsong, P. J., Ruffin, J., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., and Eldridge, J., dissent. Footnotes [1] The Code defines an “exit court” as “an outside space with building walls on three or more sides and open to the sky.” Standard Building Code at p. 24.