Metromedia Steakhouses Co., LP v. Ray , 219 Ga. App. 716 ( 1995 )

Andrews, Judge,

dissenting.

I respectfully dissent because the alleged hazard was a longstanding, patently open and obvious condition which could have been discovered through the exercise of ordinary care. Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) (1993). Theoretically, the sole basis for imposing liability on Metromedia would be its superior knowledge of the allegedly hazardous condition. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992). However, Ray was under an equal duty to use his sight to discover any defects or dangers. Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Because the condition was open and obvious, Ray in effect had equal knowledge of the hazard. Froman v. George L. Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990). Ray even admitted that the ramp was easy to see. Moreover, the evidence showed that Ray had previously traversed the two or three feet long yellow-painted concrete ramp as many as 200 times before, although never in the rain.

The fact that Ray’s injury occurred in the rain, however, is immaterial. It is common knowledge that in rainy conditions, water will accumulate on surfaces, particularly those exposed to the elements. See Layne v. Food Giant, 186 Ga. App. 71 (366 SE2d 402) (1988). Metromedia owed Ray a duty no greater than to protect him from an unreasonable risk of harm. Id. We have held that “ ‘ “[t]he risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect to anticipate.” ’ ” Id. This common sense rule applies equally to exterior surfaces, whether they are flat or sloping. See Bowman v. Richardson, 176 Ga. App. 864 (338 SE2d 297) (1985) (requiring plaintiffs to show lack of knowledge of foreign substances “such as water on a ramp” to recover).

The majority opinion neglects the issues of breach of duty and causation and ignores the fact that hundreds of invitees used the ramp without falling. Ray presented no evidence that the ramp when wet created an increased risk to invitees. He offered only disputed evidence that on another rainy day one elderly woman fell, but he failed to show her fall was actually caused by any action of Metromedia.¹ By refusing to hold Ray to his burden of proof, the majority, in effect, overlooks the elementary rule that landowners are not the insurers of their invitees’ safety and blurs the distinction between negligence and strict liability. Westbrook v. M & M Supermarkets, 203 Ga. App. 345, 346 (416 SE2d 857) (1992).

Furthermore, the majority fails to address just what Metromedia could have done in this case to avoid liability. Instead, it simply asserts that Metromedia failed to present evidence that it had a railing on the ramp or a warning sign. However, Ray did not allege that the ramp was in any way defective. He never argued that the slope was excessive or that handrails or a warning more extensive than the yellow paint already covering the ramp was required. Moreover, the ramp was only two or three feet long with a slope wide enough to allow wheelchair access from the parking lot up to the sidewalk in front of the restaurant which was no more than five or six inches higher. The functional equivalent of such ramps is at most urban intersections. What steps are required to preclude proprietor liability under the majority’s reasoning — a forest of handrails at every corner and a thicket of warning signs near every dip and pitch, on surfaces where common sense clearly shows they are slippery when wet? Metromedia should not face liability for failing to warn of the obvious. Studestill v. Smith, 219 Ga. App. 251 (464 SE2d 843) (1995) (noting that as “a matter of common knowledge” materials are more slippery when wet). Because Ray simply failed to exercise ordinary care for his own safety by observing what was patently obvious, his recovery should be barred. Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994); Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992).

Decided December 5, 1995 Reconsideration denied December 20, 1995 Smith, Gambrell & Russell, David A. Handley, Dana M. Rich-ens, for appellant. Edwards & Youmas, Lonzy F. Edwards, for appellee.

I am authorized to state that Presiding Judge Birdsong, Judge Johnson and Judge Smith join in this dissent.

1 The majority makes much of the fact that the incident report of this fall states that the ramp caused the fall. However, at trial the woman who actually fell denied falling on the ramp and on deposition denied the ramp had anything to do with her fall. She also testified that her daughter provided the information in the report.