Pinkney v. VMS Realty, Inc.

Banke, Presiding Judge.

The appellant sued to recover for personal injuries which she allegedly sustained when she stepped off the edge of a ramp in a multilevel parking garage owned and/or operated by the appellees and fell a distance of approximately one foot to the surface below. She appeals the grant of the appellees’ motions for summary judgment.

The accident occurred at approximately 9:30 p.m. on July 18, 1985. At her deposition, the appellant described the incident as follows: “As I was getting out of my car I was walking towards the security guard to ask him [directions], and I fell, literally fell, in the middle of the sentence. ... I fell off of an incline. . . . Right here is a curb that you can’t see and it wasn’t very well lit and there was no sign watch your step or ... a rail or anything there. And I didn’t see it. ... I was just casually walking towards the security guard . . . and I was talking at the same time [asking directions] and I just walked and all of a sudden I was on the ground. . . .” She said that after she fell, she looked back and commented that they needed to install a light or something, “because ... it [the drop-off area] blends right into the street. You can’t see it.”

The appellant conceded that she was aware of the existence of the ramp and that she could have seen the drop-off if she had “looked for it very closely,” but she indicated that its location was not readily observable because the two levels appeared to blend together due to the poor lighting and the absence of any railings or warning markers. She further acknowledged that she had seen such drop-offs on ramps in parking lots before but maintained that there had normally been a guard rail or something to call attention to them. She stated that had the ledge “been marked or had there been brighter lighting, I would have noticed the curb. ...”

In granting the appellees’ motions for summary judgment, the trial court concluded that the appellant was negligent as a matter of law in not looking where she was walking and that, even if the lighting in the parking deck had been poor, she had assumed the danger because “the lack of light was as observable as the walkway.” Held:

“[A]n invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects. (Cits.)” Amear v. Hall, 164 Ga. App. 163, 167 (296 SE2d 611) (1982). “Looking continuously, without intermission, for defects in a floor is not required in all circumstances. (Cits.) ‘What is a “reasonable lookout” depends on all the circumstances at the time and place.’ (Cit.)” Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733 (149 SE2d 527) (1966). See also Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (227 SE2d 336) (1976); Fletcher v. Family Center, 169 Ga. App. 376, 377 (312 SE2d 856) (1983).

Since the appellant was the respondent on motion for summary judgment and since she did not materially contradict herself, her testimony must be construed in her favor. See generally Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29-30 (343 SE2d 680) (1986). Although she conceded her obvious knowledge that she was parked on a ramp and further conceded that she would have been able to see the ledge had she been looking down at it “very closely,” she explained that her attention was focused on the security guard and that, due to the poor lighting and the lack of any guard rails or warning markers, the two levels appeared to blend together. Whether her failure to see the ledge constituted a lack of due care for her own safety under these circumstances and whether, if so, her negligence outweighed any possible negligence on the part of the appellees in failing to provide a guard rail, warning markers, and/or better lighting are issues of fact to be resolved by a jury. See Ellington v. Tolar Constr. Co., supra, 237 Ga. at 237; Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (174 SE2d 178) (1970). Accordingly, we hold that the trial court erred in granting the appellees’ motions for summary judgment.

Judgment reversed.

Deen, P. J., McMurray, P. J., Carley and Benham, JJ., concur. Birdsong, C. J., Sognier, Pope, and Beasley, JJ., dissent.