ELY v. BARBIZON TOWERS, INC

Ida Lynn Ely, by her father, B. J. Ely, as next friend, filed her petition in Fulton Superior Court seeking to recover for damages sustained in a fall occurring in the parking lot of Barbizon Tower Apartments. The amended petition names as defendant Barbizon Towers, Inc., and alleges in the pertinent portions that the defendant owns and operates a certain apartment building in the City of Atlanta known as Barbizon Tower Apartments and maintains control of the walkways, entrances and parking areas adjacent thereto. In the rear of said apartment building the defendant maintains a parking area which is completely paved with asphalt. Between said parking area and apartment building there is a walkway which runs parallel to the rear of the building and which is separated from the parking area by a concrete block fence approximately 3 feet high. In said fence there is a gateway about 3 feet wide. Bolted down to the asphalt parking lot floor, parallel with said concrete block fence, there is a series of 4 x 4 timbers placed end to end with space between the ends of each 4 x 4. These 4 x 4 timbers are constructed and placed in such a way as to act as "stops" for automobiles parking in said parking area, preventing said automobiles from striking said concrete block fence. Extending over said parking area at the rear of said apartment building is a shed or roof for said parking area, which covers a portion of said walkway, concrete fence and parking area of the defendant and casts a shadow over said areas. Automobiles belonging to the defendant's agents and tenants are customarily parked under said shed in an angular fashion heading toward said concrete block fence with the right tire against said timbers. Said timbers are approximately three and one-half feet in front of said concrete block fence, and the area between said fence and said 4 x 4's is used as a walk along the front of the automobiles parked against said timbers. Persons also pass along the sides of said automobiles in order to reach said gate. The distance between the ends of the two 4 x 4 timbers nearest said fence gate is approximately two feet; however, this space between said timbers is not directly in front of said gate but approximately three feet to the left of said gate and as one approaches said area one therefore must make a right turn upon passing through said walkway in order to go toward said fence gate. The defendant provides a parking place for its president, who is also a tenant in said apartments, one Jay Sarno, immediately in front of said gate in said concrete block fence. Said Sarno, whose office of employment by the defendant is also in said apartment building, regularly parks his automobile in the place provided between two steel support beams for the roof covering said parking area. When Sarno's automobile is parked in the place designated and provided by the defendant, the right front wheel of said automobile rests against the 4 x 4 immediately in front of said gate, said automobile being parked at an angle so that the left front wheel of same is approximately two to three feet from said 4 x 4 timber; the right front of said automobile, its grill and bumper protrude approximately one foot into said area between said timbers and said concrete block fence. The end of said 4 x 4 against which the right front wheel of Sarno's car rests extends four to six inches from under the right front of said Sarno's automobile and, as it protrudes toward the left center of said bumper, forms an angle of approximately thirty degrees with the front bumper of said Sarno's automobile. Persons approaching the rear of said apartment building customarily walk to the left of said Sarno's automobile and make a right turn towards said gateway in the concrete block fence in order to enter said apartment building as said automobile blocks a direct approach to said gateway. As one approaches in this fashion, one can see the end of the 4 x 4 which is to the left and slightly in front of said Sarno's car and a portion of the walkway formed by the space between the end of said 4 x 4 timber and the 4 x 4 timber against which said Sarno's vehicle rests; however, one cannot see the protrusion of said 4 x 4 timber against which said Sarno's automobile rests. After turning, the view of said timber is obstructed by virtue of the grill work which extends out beyond the bumper on either side of said automobile just under and slightly in between the headlights of same, so that said grill work is between the eye level of a person making a right turn around said automobile and the end of said 4 x 4 timber which protrudes from the front of said automobile. By reason of the above described construction, to wit, leaving a space of approximately 24 inches between the ends of said 4 x 4 timbers and the shadows cast by the roof or shed for said parking area and said automobile the illusion is created that one may walk through said walkway by the front of Sarno's automobile and through said gate approximately four feet distant, without obstructions. However, the defendant through its agents and servants knew, or in the exercise of ordinary care should have known, of said obstruction as the same is apparent to one walking in the opposite direction. The defendant constructed, laid and maintained the parking and walkways above described, and provided for the parking of said Sarno's Cadillac in the manner described. Said construction and manner of parking denied direct access to said gateway in the fence and created a condition dangerous to persons entering said apartment building from the rear. On August 17, 1957, at or about 3 p. m., Sarno's automobile was parked as above described in front of said entranceway to said apartments. At said time petitioner arrived with her father to pay him a visit at said apartment building. Petitioner's father told her to go into said apartments through said rear entranceway by passing through the defendant's parking area and said above described walkway, which was the customary way of entering said apartments from said parking area, well known to the defendants. Petitioner, as was the custom, passed along the left side of said Sarno's automobile, and turned to her right towards said gateway and tripped over the extension of said 4 x 4 timber from under the front of the defendant Sarno's automobile into said walkway and struck her face and lip on the step at the gate through said concrete block fence, injuring and damaging her as more fully set out hereinafter. By reason of the construction of said parking area and shed above described, the manner in which the defendant Sarno's automobile was parked, and the illusion created thereby, petitioner could not see and did not see the extension of said 4 x 4 put into said walkway, but on the contrary believed that said walk between the ends of said 4 x 4's was clear of obstruction and petitioner could pass through said walkway in safety. It is alleged that the defendant was negligent in the following particulars: (a) In constructing, and laying and maintaining said 4 x 4 timbers in said parking area so as to obstruct the passage and entranceway into said apartments as above described. (b) In constructing, and laying and maintaining said 4 x 4 timber against which Sarno parked his automobile so that same extended from six to eight inches out in front of his said automobile as above described. (c) In failing to cut off the end of said 4 x 4 timber as above described, so as to prevent persons passing through said walkway between the ends of said timbers from tripping over the extension of said 4 x 4 timber. (d) In providing a parking place for Sarno's automobile so as to obstruct the view of the extension of said 4 x 4 timber in the said walkway. (e) In failing to warn petitioner and others so situated of the obstruction in said passageway. (f) In failing to maintain said passing in a safe condition so as not to injure persons rightfully thereon. (g) In failing to keep the premises in a safe condition so as not to injure invitees thereon. (h) In failing to observe and correct said obstructions in said walkway. (i) In parking said Sarno's automobile in the manner above described so as to hide from view the end of said 4 x 4 timber. The court sustained the defendant's general demurrer and dismissed the amended petition. On this ruling the plaintiff assigns error.

FELTON, Chief Judge.

It seems to us that the petition is susceptible to two constructions. One is that the part of the 4 x 4 timber which was underneath the left front of Sarno's automobile could not be seen by one after he turned to the right in front of Sarno's automobile because of the grill of the automobile. It is difficult to understand how the 4 x 4 could have been stumbled over if it was covered by the automobile grill to the extent that it could not be seen by one going around the left front of the automobile and turning to the right. The other construction is that the 4 x 4 could not be seen until one approaching the front of the automobile reached the end of the grill. Under the first construction obviously no cause of action is set forth. We also think that no cause of action is set forth under the second construction. There is no allegation that unattended children of tender years were accustomed to pass through the parking place where the Sarno automobile was parked and the defendant could rely on the fact that persons of ordinary prudence would look upon the area for just what it was, primarily a lay-out constructed for the benefit of tenants of the adjoining apartment house, and to take for granted that others using the parking place for entrance into the apartment building would be fully cognizant of the physical facts before them. Under the facts alleged, the distance between each two of the 4 x 4's is approximately 24 inches so no 4 x 4 extended into this 24-inch passageway. The gist of the petition is that since the 4 x 4 in the Sarno parking place could not be seen until one turned to the right of the left-hand side of the Sarno car the effect was that the 4 x 4 extended into the pathway of the plaintiff, which was increased, so to speak, by the 4 x 4 in front of the left part of the grill. There can be no doubt as to the utility of the act of the defendant in placing the 4 x 4's so as to protect the wall from gradual or sudden contact with the bumpers of automobiles. The 4 x 4's could have been placed in a solid line with no room for passage without stepping over them. We do not think such a plan would have amounted to negligence. The defendant elected to leave a 24 inch space between the ends of two 2 x 4's for passageways. It seems to us that the latter arrangement represents a higher degree of care than the solid line of 4 x 4's would have shown. A person's stumbling over a 4 x 4, it seems to us, would have been infinitely more likely than stumbling over the end of one by a person blindly going around the car as in this case. "Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it was done." Restatement, Law of Torts, § 291, p. 785. In this case the utility outweighs the risk. "A negligent act may be one which . . . (b) creates a situation which involves an unreasonable risk to another because of the expectable action of the other, a third person, an animal or a force of nature." Restatement, Law of Torts, § 302 (b), p. 814. The Restatement gives as an illustration at page 820 in substance: Parking a motor vehicle in a business district without locking the ignition is not negligence. Parking one in such condition in front of a public school just before recess is negligence. In this case it seems to us that one taking the route the plaintiff took could have been expected (by the defendant) to see the 4 x 4 in the parking spaces to the left of the automobile on the plaintiff's left, if there was one, and to realize that there was a 4 x 4 similarly placed in front of the Sarno car. Assuming that there was no parking place to the plaintiff's left, there is no allegation that one could not see some part or all of some of the 4 x 4's. Negligence is bottomed on the anticipation of unreasonable risk which outweighs the utility of the defendant's conduct. Here, if there was an unreasonable risk for the ordinarily prudent, it was one not to be anticipated but only apparent from looking back "with wisdom born of the event." Green v. Sibley, Lindsay Curr Co., 257 N.Y. 190 ( 177 N.E. 416); Misenhamer v. Pharr, 99 Ga. App. 163, 168 ( 107 S.E.2d 875). The facts alleged exclude the idea that an optical illusion caused the injuries, but even if one did it would be even more remote and unforeseeable than the danger without the illusion. We have carefully considered the cases cited by the plaintiff in error and they are all distinguishable from this case. Some of them are: Miller v. Bart, 90 Ga. App. 755 ( 84 S.E.2d 127); King Hardware Co. v. Teplis, 91 Ga. App. 13 ( 84 S.E.2d 686); Atlanta Enterprises v. Douglass, 93 Ga. App. 237 ( 91 S.E.2d 296); Kitchens v. Davis, 96 Ga. App. 30 ( 99 S.E.2d 266).

The court did not err in sustaining the general demurrer to the petition.

Judgment affirmed. Nichols and Bell, JJ., concur.