Spence v. Citizens & Southern National Bank , 195 Ga. App. 294 ( 1990 )

Beasley, Judge,

dissenting.

This case involves a mezzanine or balcony which was not constructed by the landlord which the landlord did not possess or control the use of.

The deposition shows without dispute that plaintiff had knowledge of the defect through repeated daily use for two years and that he appreciated the danger it posed. He himself said this, and that he complained about the condition and warned his employer that someone would be injured if the weakness in the floor was not corrected. He walked as lightly as he could, but he weighed about 240 pounds.

Considering the entire record, it is conclusive that plaintiff had at least equal, if not superior, knowledge of the claimed defect and its hazardous nature.

The “if” pointed to by the Supreme Court in Flagler Co. v. Savage, 258 Ga. 335, 337 (368 SE2d 504) (1988), quoting from Ross v. Jackson, 123 Ga. 657, 659 (51 SE 578) (1905), is not present in this case. Plaintiff cannot recover because he “could . . . have avoided the [injury] by the exercise of ordinary care.”

I am authorized to state that Presiding Judge Deen and Judge Birdsong join in this dissent.