Pennington v. Cecil N. Brown Co. ( 1988 )

Deen, Presiding Judge,

concurring specially.

While noting that it may be regarded by some as an anomaly of ambiguity that a church member should maintain an action for a slip and fall against the member’s own church, an institution so concerned with the original Slip and Fall, I concur with Judge Sognier’s special concurrence. The church was not entitled to summary judgment on the negligence claim only because of the affidavits of the other church members stating that the patch of ice on which the appellant slipped was obvious. Without those affidavits, construing the evidence most favorably for the plaintiff/appellant would have required a finding that the ice was not visible, which would have translated into summary judgment for the church because the parties’ knowledge of the invisible hazard would have been equal.

It should also be noted that two cases cited by the majority opinion are physical precedents only, under Rule 35 (b) of the Rules of the Court of Appeals, and should be identified as such. Those two cases are Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 (235 SE2d 664) (1977), and Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193) (1970).

I am authorized to state that Judge Sognier joins in this special concurrence.