Chatmon v. Church's Fried Chicken, Inc.
Chatmon v. Church's Fried Chicken, Inc.
Opinion of the Court
Willie Chatmon was. injured when an automobile struck him from the rear as he stood at a take-out window
Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome. While the bare skeleton of this case (a customer standing in front of a store is hit by an automobile which jumped a curb) coincides with Eckerd-Walton v. Adams, 126 Ga. App. 210 (190 SE2d 490) and Feldman v. Whipkey’s Drug Shop, 121 Ga. App. 580 (174 SE2d 474), there are enough variations in the theme to incline us to the view that the possible negligence of Church’s should be left for determination by the jury rather than the court. The distinctions are three in number: (1) The window here from which the purchaser obtained and paid for his food was not, as was the telephone booth in Feldman, established merely for the convenience of the public, but it was the medium through which the defendant made its sale and was established for its own benefit as well; (2) its location demanded that customers stand on the parking island in order to purchase, and thus that they stand of necessity immediately in front of the cars which are also attracted to these parking spaces in order to do business with the store, and (3) the curb between the car spaces and the island where people are standing is not a normal curb height, but is only 3 to 4 inches, and has no guard stops. Both drivers parking to do business with the defendant and people standing on the island are invitees; under Code § 105-401 the defendant owes them the duty to exercise ordinary care to keep the premises safe for them. A three-inch curb is undoubtedly less than half as safe from the danger of overshooting as a 6-inch curb. Where
The trial court erred in granting the defendant’s motion for summary judgment.
Judgment reversed.
Dissenting Opinion
dissenting.
While the facts in the case here and those in Eckerd-Walton v. Adams, 126 Ga. App. 210 (190 SE2d 490) and in Feldman v. Whipkey’s Drug Shop, 121 Ga. App. 580 (174 SE2d 474) do have some slight variations, they are about as close as one could expect to find and this case should be governed by the same standards and principles announced in Eckerd and Feldman.
It has been observed that it should make no difference that in one case the offending animal was a cow while in another it was a bull that got out upon the highway and caused an automobile to wreck. See Taylor v. Allen, 151 La. 82, 119 (91 S. 635); Emory University v. Williams, 127 Ga. App. 881, 882 (195 SE2d 464).
I am authorized to state that Chief Judge Bell joins in this dissent.
Reference
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- Chatmon v. Church’s Fried Chicken, Inc.
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