Wallace v. Pointe Properties, Inc.
Wallace v. Pointe Properties, Inc.
Opinion of the Court
j Plaintiff Wallace was injured when she stepped in a hole , on the property of defendant Pointe Properties, Inc., and subsequently filed this action for damages. Plaintiff appeals from the grant of summary judgment in favor of defendant. Held:
This incident occurred shortly before noon on a beautiful clear June day. Plaintiff, accompanied by a colleague, was on her way to an appointment with a client when some papers she was carrying were blown from her hand. When plaintiff saw some of the papers across a closed dead end street, she started over to them and stepped into the hole which she had not seen. The hole, which was approximately eight inches in diameter and three feet deep, was one of several similar holes which held cement posts separating a pedestrian mall from the street except that the hole in question did not contain a post and was empty. The pavement surrounding the hole was covered with green paint which continued to the metal encasement of the hole. There was nothing warning anyone of the presence of the hole or which would have blocked plaintiff’s view of the hole. Plaintiff testified that she looked across the route to her papers, saw no obstructions and nothing unusual in the area she would traverse, and proceeded toward her papers looking straight ahead of herself. Plaintiff opined that the reason she did not see the hole was because of “the way the road is curved and the way the shadows of the buildings are there.”
Defendant contends that plaintiff is barred from recovery by the “plain view” doctrine. “The ‘plain view’ doctrine ‘is that one is under a duty to look where he is walking and to see large objects in plain
We reject the supposition advanced in the dissent that plaintiff’s testimony was contradictory. Even when construed most strongly against her, plaintiff’s explanation, of why the hole was difficult to see, consistently maintains that the difficulty arose when light and shadows combined to conceal the actual contours of the area. The superior court érred in granting defendant’s motion for summary judgment.
Judgment reversed.
Dissenting Opinion
dissenting.
The majority concludes that summary judgment was improperly granted because there is evidence the hole was a concealed hazard. The plaintiff testified in her deposition that, “I believe that the way the road is curved and the way the shadows of the buildings are there, that you would not see it unless you knew that that hole was there.” In other words, the plaintiff claims the combination of these two factors obscured the hole or produced an optical illusion which prevented her from seeing it.
It is undisputed that the accident occurred on a clear day be
Moreover, the trial judge was authorized, as a matter of law, to conclude that the plaintiff’s claims that the hole was obscured created no issue of fact on summary judgment. At her deposition the plaintiff presented testimony and evidence which contradicted her testimony that shadows and the curve of the road obscured the hole. When asked if it was her testimony that the hole was obscured by shadows at the time when the accident occurred between 10:00 a.m. and noon, the plaintiff responded: “I think the hole just basically is not easily seen. I think it has to do with the way the road and shadows and the buildings are. I don’t directly recall if there were shadows at that time of day, but it is not able to be seen.” At the deposition the plaintiff produced photographs of the scene taken between 5:00 p.m. and 6:00 p.m. a few days after the accident. The photographs showed apparent shadows at that time of day, and perhaps a slight crown in the road, but no discernible curvature to the road which could have possibly contributed to obscuring the hole.
Although all evidence is to be construed against the movant on summary judgment, an exception to this rule provides that the testimony of a non-moving party in her own behalf is to be construed most strongly against her when it is contradictory, vague or equivocal. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). If a reasonable explanation is subsequently offered to explain the contradiction, the testimony will not be construed against
The plaintiff contradicted her claim that shadows and the curve of the road obscured the hole when she later testified that she could not recall whether there were shadows at the time of the accident, and produced photographs of the accident scene which did not support her claim that the hole was in any way obscured by a curve in the road. See Prophecy Corp., supra at 31 (witness’ testimony that he could not recall contradicted his testimony that the event had occurred). Since the plaintiff offered no explanation for the contradiction, the trial judge was authorized to construe the plaintiff’s testimony that the hole was obscured against her. In the absence of this claim, there is no evidence that anything obscured the hole or otherwise prevented the plaintiff from seeing it. The hole was an open and observable static condition of which an invitee exercising ordinary care would or should have had as much knowledge as the proprietor. Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28) (1986); Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539) (1988). The trial court correctly granted summary judgment to the defendant because the facts are so plain and palpable that they demand a finding, as a matter of law, that the plaintiff failed to exercise ordinary care to avoid the hazard. Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312 (352 SE2d 212) (1986); Soto v. Roswell Townhomes, 183 Ga. App. 286 (358 SE2d 670) (1987).
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