Opinion
38635.
DECIDED FEBRUARY 21, 1961. REHEARING DENIED MARCH 16, 1961.
Action for damages. DeKalb Superior Court. Before Judge Vaughn.
Frank P. Lappas, Sidney I. Rose, for plaintiff in error.
Edward E. Dorsey, C. James Jessee, Jr., contra.
A petition to recover damages based on negligence is subject to general demurrer when it shows on its face that the defendant could not reasonably anticipate danger to the plaintiff under the facts alleged.
DECIDED FEBRUARY 21, 1961 — REHEARING DENIED MARCH 16, 1961.
By amended petition the plaintiff alleged that she visited the premises of the defendants' beauty salon for the purpose of having her hair styled; that the defendants maintained a parking area in the rear of their business and invited the customers to park their automobiles thereon; that on the date of the alleged injury it was raining very hard and that petitioner had driven her automobile to the rear of the defendants' business and thereafter proceeded to walk hurriedly down the driveway which was composed of two concrete strips, each approximately 2 and 1/2 feet in width; that the plaintiff proceeded on the concrete strip nearest the defendants' building; that the driving rain caused the plaintiff to walk with her head lowered and as she did she struck her head on an air-conditioning unit extending approximately 2 feet from the side of the building, thus causing the injury for which she brings this action to recover damages. To the amended petition the defendants filed a general demurrer. It is to the ruling of the court sustaining the general demurrer and in dismissing the action that the plaintiff excepts.
It does not seem to us that the maintenance of an air-conditioning unit which extends approximately two feet from the side of a building, even at head level, constitutes negligence on the part of the defendant. The presence of such equipment on the side of the building can easily be anticipated and thus distinguishes this case from the "public thoroughfare" cases relied on by the plaintiff. "Where a petition does not show the risk of unreasonable danger and does not show that the defendant could reasonably have foreseen danger to an invitee on his property, the trial court did not err in sustaining the general demurrer." McHugh v. Trust Co. of Ga., 102 Ga. App. 412 ( 116 S.E.2d 512). The utility of the defendants' act in placing an air conditioner in the premises for the comfort of customers far outweighs, under these circumstances, the likelihood of possible danger to invitees. "Negligence is bottomed on the anticipation of unreasonable risk which outweighs the utility of the defendants' conduct." Ely v. Barbizon Towers, 101 Ga. App. 872 ( 115 S.E.2d 616). Moreover, the petition shows on its face that the plaintiff did not exercise ordinary care for her own safety in walking hurriedly, head down, less than two feet from the side of a building. Also, if the air conditioner extended so close to or over the cement strip, the difficulty or danger, if there was any, in driving the automobile past it should have put the plaintiff sufficiently on notice of its presence. "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.
The court did not err in sustaining the general demurrer to the petition as amended.
Judgment affirmed. Nichols and Bell, JJ., concur.