Sinclair v. Orozco , 205 Ga. App. 498 ( 1992 )

205 Ga. App. 498 (1992) 423 S.E.2d 25

SINCLAIR
v.
OROZCO.

A92A1539.

Court of Appeals of Georgia.

Decided September 16, 1992.

Cobb & Walton, Bobby L. Cobb, for appellant.

Fortson & White, Michael D. St. Amand, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Sinclair fell and was injured after he stepped into a depression in the parking lot of a building owned by defendant Orozco. This appeal is taken from the grant of summary judgment in favor of defendant and against plaintiff in the ensuing action for damages. Held:

Even though the fall occurred at night there was some lighting of the area. Plaintiff deposed that he did not look down at the parking lot before he fell, but that if he had looked he would have easily observed the raised or depressed place which caused his fall.

While plaintiff's status upon the premises was contested, we need not reach that issue. Even assuming that plaintiff was an invitee, he was under a duty to exercise ordinary care for his safety. This includes a duty to use his eyesight for the purpose of discovering and avoiding any discernible obstruction in his path. There is no suggestion that defendant was responsible in any way for plaintiff's failure to see the depression in the parking lot. The uncontroverted evidence shows that plaintiff was not exercising due care for his own safety, therefore the state court did not err in granting defendant's motion for summary judgment. Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234). Plaintiff's reliance on Wallace v. Pointe Properties, 202 Ga. App. 537 (414 SE2d 678) is misplaced as this case may be distinguished on the facts.

Judgment affirmed. Sognier, C. J., and Cooper, J., concur.