Opinion
43701.
ARGUED JUNE 4, 1968.
DECIDED JULY 1, 1968.
Action for damages. DeKalb Superior Court. Before Judge Dean.
Ross Finch, Claude R. Ross, I. J. Parkerson, for appellant.
Zachary, Hunter, Zachary Bowden, William E. Zachary, Jr., for appellee.
1. Since the defendant failed to eliminate a material and controlling issue in the case, his motion for summary judgment was properly denied.
2. The proof adduced on the motion for summary judgment together with the allegations of the petition were sufficient to present a jury question as to whether the plaintiff's wife exercised ordinary care for her own safety.
ARGUED JUNE 4, 1968 — DECIDED JULY 1, 1968.
J. Lamar Wilson filed suit against Colonial Stores, Inc. for damages resulting from a personal injury his wife received when she tripped and fell over a metal "plank" in a parking lot. The petition alleged in part that: the plaintiff drove his automobile, in which his wife was a passenger, into one of the designated parking spaces in front of the plaintiff's store; the purpose of entering the same was to purchase groceries; his wife stepped from the automobile and proceeded toward the store; while doing so she tripped on a metal plank which had been placed over the curb dividing the automobiles by an agent of the defendant; the metal plank was uneven and bent; at the time "a shadow was cast under the bent end of the metal plank, said metal plank extending out approximately one yard from the concrete or curbstone divider. The surface under the plank was asphalt of a dark color and the plaintiff's wife could not ascertain in approaching the plank that the plank was bent and would cause her to trip in that the shadows blended in with the dark asphalt."
The petition further alleged that the defendant was negligent: "(a) In failing to provide a safe approach to its store, hereinbefore identified; (b) in placing a defective structure in an approach to its store, in that the metal plank was neither permanently affixed to the curb nor of a shape or thickness to withstand a car rolling upon it without being bent; (c) in maintaining a trap for an unwary person on its parking area for its customers; (d) in failing to warn its customers of the dangerous condition that the metal plank created."
The defendant filed a motion for summary judgment which was based on the petition and depositions of the plaintiff and his wife. The motion was denied and the case is here for review.
1. The defendant contends that the motion for summary judgment should have been granted because the evidence before the court did not show that the defendant had either actual or constructive knowledge of the alleged dangerous condition. To establish liability when the case goes to trial the plaintiff must carry the burden of proving that the defendant had either actual or constructive knowledge of the alleged dangerous condition. However, in the case sub judice we are now considering whether the defendant's motion for summary judgment is valid. In substance the defendant is contending that the summary judgment should be granted because one of the essential elements of the cause was not shown by the evidence presented in support of the motion. With this contention we cannot agree because there was no burden of proof upon the plaintiff to make out his case. The defendant having made the motion the burden was upon him to produce evidence which conclusively eliminated all issues in the case including the question of the defendant's knowledge of the alleged dangerous condition. Sanders v. Alpha Gamma Alumni Chapter, 106 Ga. App. 137 ( 126 S.E.2d 545). The only evidence before the court was the testimony in the depositions of the plaintiff and his wife. Assuming, but not deciding, that the evidence failed to establish that the defendant had the necessary notice, the testimony did not conclusively establish that the defendant was unaware of the alleged dangerous condition. This controlling issue not having been eliminated, the appellant's contention is without merit. Lucas v. Mixon, 116 Ga. App. 146 ( 156 S.E.2d 375).
2. The appellant further insists that the motion should have been granted because the evidence disclosed that the plaintiff's wife did not exercise ordinary care for her own safety because: (1) she testified she knew the ramp was there and was looking directly at it as she approached just prior to the time she fell, and (2) the position and condition of the ramp or plank were in her full view at all times.
The plaintiff's wife testified that she did not observe the fact that the ramp or plank was turned up on the edge when she stepped on it; she checked it after she fell and observed that it was turned up two or three inches on the edge. When asked why she did not see that it was turned up when she stepped on the ramp she replied, "I don't believe you would even see it unless you got down to look at it or felt it."
The plaintiff testified that the ramp was sprung approximately 2 to 2-1/2 inches; you could not see that it was sprung because of "the shadow, the pavement and the shadow under the gangboard, you couldn't tell whether it was up or down."
The above evidence together with the allegations of the petition were sufficient to present a question for the jury whether the plaintiff's wife exercised ordinary care for her own safety.
Judgment affirmed. Bell, P. J., and Hall, J., concur.