Summary
In Ward v. Veterans of Foreign Wars, 109 Ga. App. 563, 564 (136 S.E.2d 481), we cited S. H. Kress Co., supra, and Belk-Gallant Co., supra, as both involving evidence that the substance had been on the floor for a length of time sufficient to give defendants an opportunity to discover the hazard.
Summary of this case from Mitchell v. Food Giant, Inc.Opinion
40609.
DECIDED APRIL 8, 1964.
Action for damages. Brunswick City Court. Before Judge Little.
Ronald F. Adams, William A. Davis, Jr., W. M. Henderson, for plaintiff in error.
Conyers, Fending, Dickey Harris, Chris B. Conyers, Reid W. Harris, contra.
1. The owner or occupier of premises owes the duty to invitees to exercise ordinary care in keeping premises safe for their use. Code § 105-401. Such owner or occupier of land is liable for failure to warn his invitees of danger or defects in such premises or instrumentalities, of which he knew or of which it was his duty to know in the exercise of ordinary care. Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (1a) ( 179 S.E. 415).
2. The allegation in paragraph 10 of the petition alleging that "the defendant, acting by and through its agents, servants and employees . . . had permitted liquid to be spilled and remain on the floor," is not sufficient in our opinion to allege actual knowledge, particularly when construed with the allegation of paragraph 13 which alleges that "the defendant knew, or by the exercise of ordinary care and diligence . . . should have known . . . that the existence of liquid on said floor rendered the same extremely dangerous to walk upon," and in view of the amendment to the petition adding a paragraph 13A and alleging that "the defendant knew or should have known, by and through its employees, with the exercise of due diligence and care for the safety of its guests, of the existence of said liquid on said floor." Setzers Super Stores v. Higgins, 104 Ga. App. 116, 118 ( 121 S.E.2d 305). Cf. Citizens c. Bank v. Union Warehouse c. Co., 157 Ga. 434, 437 (8) ( 122 S.E. 327). The allegations of the petition as a whole, when construed against the pleader, allege constructive knowledge only. See Baggett v. Edwards, 126 Ga. 463 (1) ( 55 S.E. 250), in which the court stated: "Where pleadings do not make distinct and positive allegations, but are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader."
3. The allegations in the petition do not set out facts from which an inference of constructive knowledge can be drawn from the length of time the liquid was permitted to remain on the floor, for no time is set out. Nor are any other facts alleged that are sufficient to show that the defendant had any knowledge, constructive or otherwise, that the liquid was on the floor. See, in this connection, Cook v. Kroger Baking c. Co., 65 Ga. App. 141, 143 ( 15 S.E.2d 531). In order to set forth a cause of action based upon constructive notice or knowledge the petition must allege facts or circumstances sufficient to make it a question of facts as to whether the alleged dangerous condition had existed for a sufficient length of time so that knowledge would be imputed to the defendant. See Setzers Super Stores v. Higgins, 104 Ga. App. 116, supra; Cook v. Kroger Baking c. Co., 65 Ga. App. 141, supra; Jones v. West End Theater Co., 94 Ga. App. 299 ( 94 S.E.2d 135).
4. The case of Belk-Gallant Co. v. Cordell, 107 Ga. App. 785 ( 131 S.E.2d 575), and American Legion v. Simonton, 94 Ga. App. 184 ( 94 S.E.2d 66) relied on by plaintiff in error, both set out a time factor of four hours or more and such time could have given defendant opportunity to discover the dangerous condition.
In S. H. Kress Co. v. Flanigan, 103 Ga. App. 301 ( 119 S.E.2d 32), the petition alleged that a white slippery substance causing the fall had been tracked in several places in a store and was within six feet and in easy sight of a servant, agent or employee of defendant. And further, that such substance could easily have been discovered by other servants, agents or employees of defendant. In that case dissemination was so wide that a jury question was raised as to whether in the exercise of due care defendant had an opportunity to discover the dangerous condition. We think these cases are clearly distinguishable from the present case upon their facts. The petition as amended in the present case did not set forth a cause of action.
5. "In a petition claiming damages, which alleges in general terms that the defendant was guilty of negligence, it is not sufficient to allege the negligence in general terms when the defendant objects by proper demurrer to such allegations, calling for the particulars of the negligence complained of; and when the judgment on the demurrer requires the pleader to amend in these particulars where he has been delinquent, and he refuses to amend, the pleading may be dismissed if the delinquency relates to the entire cause of action set up in the petition." Cook v. Kroger Baking c. Co., 65 Ga. 141 (1), supra.
Judgment affirmed. Felton, C. J., and Frankum, J., concur.
DECIDED APRIL 8, 1964.
Mrs. Irene Ward was injured by slipping on a spot where liquid had been spilled in a walkway between her table and the dancing area of a dimly lighted dance hall. She was an invitee and had paid $1.25 entrance fee.
Plaintiff's petition alleged as to pertinent portions as follows: That at the spot where she fell, defendant, acting by and through its agents, servants and employees, whose names are unknown to plaintiff but well known to defendant, had permitted liquid to be spilled and remain on the floor which rendered said floor slick, slippery and dangerous to those walking thereon, including plaintiff, and which liquid prevented her shoes from making traction on the floor; that defendant knew, or by the exercise of ordinary care and diligence for the safety of its guests, including plaintiff, should have known that numerous members and guests were accustomed to walk on its floor in dancing as well as going to and from the immediate dancing area, and the existence of liquid on said floor rendered the same extremely dangerous to walk upon where said liquid had so spilled. Plaintiff adds Paragraph 13A and alleges that the defendant knew or should have known, by and through its employees, with the exercise of due diligence and care for the safety of its guests, of the existence of liquid on said floor.
To this petition as amended defendant filed general and special demurrers. The court below sustained these demurrers and to this ruling plaintiff excepted, and this ruling is now before this court for review.