Opinion
75935.
DECIDED MAY 31, 1988.
Action for damages. Walker Superior Court. Before Judge Wood.
W. Ralph Hill, Jr., for appellants.
Henry C. Tharpe, Jr., M. Claire Chason, Thomas E. LeQuire, for appellees.
Plaintiff and her husband brought an action against T G Y Stores Company ("TGY") and others seeking to recover damages resulting from injuries plaintiff wife allegedly sustained after she fell on the sidewalk outside a store owned and operated by TGY.
Upon defendants' motion for summary judgment, the undisputed facts revealed that plaintiff wife was walking to defendant TGY's store "between 1:30 and 2:00" during a sunny afternoon on April 13, 1986, when she tripped and fell on a "[s]lick and chipped up ..." area of the sidewalk. In her deposition, plaintiff wife testified that there "wasn't no water or no nothing ..." in the area where she fell, that the "chipped" area was between the edge of the sidewalk and the front entrance of TGY's store and that the sidewalk "was smooth at the door where you went in, but when you walked up to the sidewalk to go in, it was not [smooth]." Describing how she fell, plaintiff wife testified that "[w]hen [she] stepped up on the sidewalk, [she] made one step, started to make another one, that's when [her] foot slipped out from under [her and she fell]." Plaintiff also testified that she had visited TGY's store several times before her fall, observed the "chipped" area where she fell and affirmed on cross-examination that she had walked over the area "many times ... [but] had never fallen there before ..." However, plaintiff testified that she had "seen other people fall ..." in the "chipped" area before her fall. The trial court granted defendants' motion for summary judgment, and this appeal followed. Held:
In their sole enumeration of error, plaintiffs contend the trial court erred in granting summary judgment in favor of defendants, arguing that a genuine issue of material fact remains as to whether she was distracted by merchandise placed on the sidewalk outside defendant TGY's store and whether these distractions were the proximate cause of her fall.
"The rationale of the `distraction' cases `"lies in the rule that, where a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by sign or conduct, which will so divert the customer's attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant." Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857, 859 ( 201 S.E.2d 634) (1973)." Wright v. Piggly Wiggly Southern, 164 Ga. App. 293 ( 297 S.E.2d 75). In the case sub judice, although plaintiff wife testified that she was looking at merchandise "[b]efore [she] stepped up [on the sidewalk]," she did not testify that she was distracted by merchandise on the sidewalk at the time of her fall. Consequently, since there is no evidence in the record to support plaintiff wife's claim of "distraction," the merchandise on the sidewalk outside TGY's store was not, as a matter of law, a distraction constituting the proximate cause of plaintiff's fall. Further, it is abundantly clear from the undisputed evidence that plaintiff wife had as much knowledge of the defective condition of the sidewalk as defendant did. "`Accordingly, [plaintiff] should have been aware that the [condition of the sidewalk was] a hazard to walking and should have exercised ordinary care to avoid [it].' Backer [v. Pizza Inn, 162 Ga. App. 682, 683 ( 292 S.E.2d 562)]." Wright v. Piggly Wiggly Southern, 164 Ga. App. 293, 294, supra. See Inglett v. Winn Dixie, Greenville, 168 Ga. App. 192 ( 308 S.E.2d 587). There being no genuine issue of material fact, the trial court properly granted summary judgment in favor of defendants.
Judgment affirmed. Pope and Benham, JJ., concur.