Southeastern Builders, Inc. v. Starrett

127 Ga. App. 5 (1972)

192 S.E.2d 394

SOUTHEASTERN BUILDERS, INC. v. STARRETT et al.

47080.

Court of Appeals of Georgia.

Argued April 7, 1972.

Decided September 5, 1972.

Hull, Towill, Norman, Barrett & Johnson, Wyckliffe A. Knox, Jr., F. Frederick Kennedy, Jr., for appellant.

Sanders, Hester, Holley, Askin & Dye, Glenn B. Hester, Otis F. Askin, Jr., Carlisle Overstreet, for appellees.

PANNELL, Judge.

This is an appeal from the denial of a motion by a landlord for summary judgment in an action brought by a husband and wife, tenants, resulting from the wife's injuries when a door mat slipped as she stepped upon it in the entrance to the leased premises. This is not a case concerning the mere slipping of a door mat on the floor of an entrance and exit to an apartment (Wilkinson v. Rich's, Inc., 77 Ga. App. 238 (48 SE2d 552)), but here the mat was resting partly on the door or the door facing and partly on the floor creating a situation entirely different from that when a door mat is where it is supposed to be. While the defendant denied any knowledge of the door mat's presence, there was evidence that the door mat had been in the entrance for a period of four months. While there was no evidence as to how long the door mat had been in this particular position, and in the absence of actual notice, the plaintiff, upon the trial of the case could not recover on this evidence, as the burden of proof would be upon her to show the mat had been so placed a sufficient length of time to constitute constructive notice thereof to the landlord, this does not require the grant of a summary judgment to the defendant on its motion as the burden would be on the defendant to prove the mat had not been so located a *6 sufficient length of time to constitute constructive notice to the defendant-landlord. Werbin & Tenenbaum v. Heard, 121 Ga. App. 147 (3) (173 SE2d 114); Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (170 SE2d 737).

The defendant here, upon whom the burden lay, must produce evidence which conclusively negates any question of constructive notice on its part. Werbin & Tenenbaum v. Heard, 121 Ga. App. 147 (2), supra. The defendant having failed to carry this burden, the trial court did not err in refusing to grant its motion for summary judgment.

Judgment affirmed. Hall, P. J., and Quillian, J., concur.