Starr v. Emory University , 93 Ga. App. 864 ( 1956 )

Townsend, J.

The allegations of negligence are that (a) the defendant failed to provide safe and suitable premises for the plaintiff, a paying patient in the hospital, to walk upon or to give notice or warning of the unsafe condition; (b) the defendant, with knowledge of the defective condition of the premises, failed to warn the plaintiff as to the same; (c) the defendant failed to provide adequate illumination so as to disclose the unsafe condition of the floor; (d) failed to keep the tile floor covering in a safe and unslippery condition; (e) so placed the Christmas tree as to cast shadows on the aisle; (f) so placed the beds as to cast shadows on the aisle from the curtains surrounding them; (g) so placed the table in the aisle as to cast shadows across this spot; and (h) failed to turn on the ceiling lights or otherwise illuminate the aisle.

While the duty of the owner of premises is one of exercising ordinary care for its invitees, the degree of care which constitutes ordinary care under the circumstances may vary according to the age or capacity of the invitee known to the former. “A private-hospital in which patients are placed for treatment by their physicians, and which undertakes to care for the patients and supervise and look after them, is under the duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition, which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient, may require.” Emory University v. Shadburn, 47 Ga. App. 643 (1) (171 S. E. 192), affirmed, 180 Ga. 595 (180 S. E. 137). Stansfield v. Gardner, 56 Ga. App. 634 (193 S. E. 375). It is axiomatic that even a person not laboring under a disability would expect the- floors of hospitals to be kept clear of slippery substances in the areas where patients are accustomed to walking because of the fact that so many of the persons using such areas are in fact under a disability. It was accordingly negligent for the defendant to- allow a portion of the floor in the area between beds in a hospital ward to be polished with wax and buffed so as to become highly slick and dangerous over an area where this condition could not be ascertained-“without stooping down close to the floor and making a minute and close inspection.” It was also negligent for the defendant’s employees, acting within the course of their employment, to spill a liquid on a portion of this area, “which, combined with said slick and dangerous condition of said floor, made the floor more hazardous.” Under these circumstances, failure to have proper illumination might also be found by the jury to constitute negligence entering into the proximate- cause of the injuries.

The only remaining question is whether the plaintiff, a patient in the hospital but well enough to be in the course of being discharged therefrom, was so lacking in the exercise of ordinary care for her own safety as to preclude her recovery. The plaintiff alleges that the slick condition of the floor was not apparent; the spilling of the liquid was not apparent, and this was due in part to the fact that the day was cloudy, a Christmas tree on one side of the aisle and a table and chairs on the other cast deep shadows over the slippery area; the floor was of a mottled color, and the defendant failed to have its ceiling lights burning. This court has frequently held similar allegations as to the slickness of a floor resulting from the use of wax, either alone or combined with other conditions such as poor lighting, to be sufficient to state a cause of action. Bryant v. S. H. Kress & Co., 76 Ga. App. 530 (1, 2) (46 S. E. 2d 600); Haverty Furniture Co. v. Jewell, 38 Ga. App. 395 (1, 2) (144 S. E. 46); Caroway v. City of Atlanta, 85 Ga. App. 792, 798 (2) (70 S. E. 2d 126), and cases therein cited. While every negligence action must in the last analysis be decided on its own particular facts, these cases contain facts more closely related to the situation here alleged than do those relied upon by the plaintiff in error, such as Mattox v. Atlanta Enterprises, Inc., 91 Ga. App. 847 (87 S. E. 2d 432), where a woman descended a dark flight of stairs in a theater and tripped over some torn carpeting on which a greasy substance had been allowed to accumulate. That decision held that the plaintiff was not in the exercise of ordinary care for her own safety because the petition alleged that the stairway was dark and the plaintiff could not safely descend it, but that she nevertheless continued to descend while knowing it to be unsafe. No such allegations appear in the petition here under consideration. There was nothing whatsoever, so far as appears, to warn the plaintiff that any possible defect might exist on the floor between the aisles of the hospital beds in her ward where she was a patient, or that it would be unsafe for her to traverse the area. Accordingly, the petition does not affirmatively reveal that she failed to exercise ordinary care for her own safety, either in not detecting the slippery substance on the floor before stepping there or in proceeding-along the floor after becoming aware that it was in any manner unsafe.

Neither is this petition controlled on its facts by Holman v. American Automobile Ins. Co., 201 Ga. 454, 462 (39 S. E. 2d 850), cited by the defendant in error. In that case an employee descended a flight of steps leading to the employees’ cafeteria and slipped as she stepped from the last step onto the waxed floor of the restaurant area. That decision is based on the fact that “there is no allegation that she was not familiar with the floor of the cafeteria and how it was ordinarily kept, and no. contention as to insufficient lights. 'An excessive and unnecessary amount of wax on the floor which should have been wiped up and removed’ must have been patent and obvious; and there is no allegation that it was not.” In the present case, there are full and complete allegations as to insufficient lights; there is no allegation as to excess wax, and there are statements affirmatively showing that the slick place was not patent and obvious, and that because of the shadows the highly polished floor did not appear to be such. The Holman case is based on a line of cases dealing with patent defects; this case does not fall within that group.

The assignments of error on the rulings on special demurrer are not argued, but from what has hereinabove been said it is obvious that the paragraphs objected to as conclusions are sufficient, when considered with the remaining allegations of fact in the petition, to withstand this criticism. Saliba v. Saliba, 202 Ga. 279 (9) (42 S. E. 2d 748). Also since, as above pointed out, the duty of a hospital toward its patients in view of its knowledge of their physical condition is relevant and material in considering the care owing by the defendant under the circumstances, paragraph 24 of the petition, setting out such duty in general terms, was not subject to. criticism on the ground that it was a conclusion or that it did not state correctly a legal duty on the part of the defendant.

The trial court erred in sustaining the general and special demurrers to the petition.

Judgment reversed.

Felton, C. J., Carlisle, Quillian and Nichols, JJ., concur. Gardner, P. J., dissents.