Fisher v. HBS Management, Inc. , 220 Ga. App. 752 ( 1996 )

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent because I believe the case sub judice is controlled by the recent decision in Martin v. Dunwoody-Shallowford Partners, L. P., 217 Ga. App. 559, 560 (2) (458 SE2d 388), where this Court held, under circumstances similar to the incident in the case sub judice, that genuine issues of material fact remain as to whether the proprietor knew or should have known of the danger of transparent ice in its parking lot; whether the plaintiff had knowledge of the hazard because of his prior passage over an icy parking lot, and thus whether plaintiff exercised ordinary care for his own safety. As were the circumstances in Martin, Fisher testified in the case sub judice that he did not see the ice before he fell because it was transparent and, also like Martin, there is proof that Fisher’s landlord (defendants) knew that an ice storm hit the area the night before the incident in question. It is my view, that these circumstances raise genuine issues of material fact as to whether defendants knew or should have known about transparent ice in their parking lot; whether defendants exercised the requisite degree of care in protecting against dangers associated with the accumulation of transparent ice; whether Fisher had knowledge of the hazard because of his prior passage over the affected area, and thus whether Fisher exercised ordinary care for his own safety.

Decided March 15, 1996. Roy S. Mullman, Teri D. Alpert, for appellant. Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Michael E. Hardin, for appellees.