Scott Development Co. v. Munn
Scott Development Co. v. Munn
Opinion of the Court
The only error enumerated on this appeal is the failure of the trial court to sustain the defendants’ general demurrer to the plaintiff’s petition.
The plaintiff seeks a recovery for personal injuries which she allegedly received when she, while a tenant in an apartment project owned and operated by the defendants, opened the door of her apartment and began to descend the steps and stepped onto a child’s skateboard which was concealed by a vine growing over the top step on which she had just placed her foot. It is
The defendants admit in their brief that the petition sets forth sufficient allegations as to the defendants’ alleged negligence to withstand a general demurrer. However, the defendants take the position, and we quote from their brief, that: “Plaintiff, had she looked, obviously could see the alleged vine growing on the step, and equally as obvious to step on a vine when descending steps is in and of itself dangerous since it could cause a person to trip and fall without any other object being involved. But to also step on a vine which from the allegations of the petition had grown sufficiently high to conceal objects such as toys, etc., that were allegedly accumulated in the area, is the grossest lack of care on the part of such a plaintiff, and in our opinion, should prevent any recovery.”
The question presented for decision is whether the petition shows on its face as a matter of law .that the plaintiff by ordinary care could have avoided the consequences to herself caused by the defendants’ negligence. If so, then she is not entitled to recover. Code § 105-603.
“A general demurrer to a negligence action will be sustained on the ground of contributory negligence only where it appears
The situation in the present case is closely analogous, insofar as the question of contributory negligence is concerned, to the case of Alexander v. Owen, 18 Ga. App. 326 (89 SE 437). In that case this court held: “Whether or not the condition of the bottom step, of which the injured person had knowledge at the time she attempted the descent of the steps, was sufficient to charge her with knowledge of the defect in the particular step, the breaking of which produced the injury, and to show a want of ordinary care on her part in attempting to use the steps at all, is a question for determination by the jury.” For similar holdings, see Johnson v. Collins, 98 Ga. 271 (26 SE 744); Roach v. LeGree, 18 Ga. App. 250 (89 SE 167); Harris v. Riser, 30 Ga. App. 765 (119 SE 432); Miller v. Jones, 31 Ga. App. 318 (120 SE 672); Coker v. Murphey, 66 Ga. App. 586 (18 SE2d 572); Ball v. Murray, 91 Ga. App. 686 (86 SE2d 706). See also Durrett v. Tunno, 113 Ga. App. 839 (149 SE2d 826).
Construing the allegations of the petition most strongly against the plaintiff, we do not find a clear, palpable and affirmative case of failure of the plaintiff to use ordinary care and diligence for her own safety. According to the allegations, the plaintiff was descending the stairs from her apartment. The defendants point out that she deliberately put her foot on the vine which had grown across the first step. However, this is of no consequence. It was not the vine that plaintiff alleges caused her injuries, but rather a skateboard hidden from view thereunder. Plaintiff alleges in her petition that “she could not, in the exercise of ordi
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.