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POST ROBINSON
SLIP AND FALL DECISIONS

  • IN ORDER TO RECOVER FOR INJURIES SUSTAINED IN A SLIP AND FALL ACTION, AN INVITEE MUST PROVE (1) THAT THE DEFENDANT HAD ACTUAL CONSTRUCTIVE KNOWLEDGE OF THE HAZARD; AND (2) THAT HE (INVITEE) LACKED KNOWLEDGE OF THE HAZARD DESPITE THE EXERCISE OF ORDINARY CARE DUE TO THE ACTIONS OR CONDITIONS WITHIN THE CONTROL OF THE OWNER/ OCCUPIER. HOWEVER, THE PLAINTIFF'S EVIDENTIARY PROOF CONCERNING THE SECOND PRONG IS NOT SHOULDERED UNTIL THE DEFENDANT HAS ESTABLISHED NEGLIGENCE ON THE PART OF THE PLAINTIFF - I.E., THAT THE PLAINTIFF INTENTIONALLY AND UNREASONABLY EXPOSED HIMSELF TO A HAZARD OF WHICH THE PLAINTIFF KNEW OR, IN THE EXERCISE OF ORDINARY CARE, SHOULD HAVE KNOWN.
1) Robinson v. Kroger Company, 268 Ga. 735, 748-749, 493 S.E.2d 403 (1997).
  • THE SUPREME COURT OF GEORGIA HAS DISAPPROVED APPELLATE DECISIONS WHICH HOLD AS A MATTER OF LAW THAT AN INVITEE'S FAILURE TO SEE A HAZARD BEFORE FALLING, CONSTITUTES A FAILURE TO EXERCISE ORDINARY CARE. DEMANDING AS A MATTER OF LAW THAT AN INVITEE VISUALLY INSPECT EACH FOOTFALL REQUIRES AN INVITEE TO LOOK CONTINUOUSLY AT THE FLOOR FOR DEFECTS, A TASK WHICH AN INVITEE IS NOT REQUIRED TO PERFORM SINCE THE INVITEE IS ENTITLED TO ASSUME THAT THE OWNER/OCCUPIER HAS EXERCISED REASONABLE CARE TO MAKE THE PREMISES SAFE.
1) Hopkins v. K-Mart Corp., ____ Ga. App. ____ (Case No. A98A0669) (5/11/98)
  • TO RECOVER IN A SLIP AND FALL CASE A PLAINTIFF MUST SHOW THAT THE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE HAZARDOUS CONDITION THAT CAUSED THE FALL, AND THAT HE (PLAINTIFF), WAS NOT AWARE OF THE HAZARDOUS CONDITION, OR THAT BECAUSE OF SOME ACT OR OMISSION ATTRIBUTABLE TO THE PROPRIETOR, HE WAS PREVENTED FROM DISCOVERING THE HAZARDOUS CONDITION. IN THE ABSENCE OF ACTUAL KNOWLEDGE A PLAINTIFF MAY SHOW CONSTRUCTIVE KNOWLEDGE ON THE PART OF THE PROPRIETOR EITHER BY SHOWING THAT THE HAZARD HAD BEEN THERE SO LONG THAT THE DEFENDANT SHOULD HAVE DISCOVERED IT, OR BY SHOWING THAT AN EMPLOYEE OF THE DEFENDANT WAS IN THE IMMEDIATE AREA OF THE HAZARD AND COULD HAVE EASILY SEEN IT. THIS MAY, HOWEVER, PRESENT SOMEWHAT OF A PROBLEM FOR A PLAINTIFF, WHO CONTENDS THAT THE HAZARD SHOULD HAVE BEEN VISIBLE TO AN EMPLOYEE IN THE IMMEDIATE AREA IF PLAINTIFF HAS HIMSELF TESTIFIED HE WAS UNABLE TO SEE THE HAZARD.
2) Whisby v. Bruno's Food Stores, Inc.,228 Ga. App. 597, 492 S.E.2d 338 (1997). "The Plaintiff must show that the Dept. Manager could and should have seen the puddle from his position 15-20 feet away. Yet at the same time, she must show that she was being careful and still failed to see the puddle as she approached and entered it." This is somewhat of a logical impossibility.
  • TO RECOVER IN A SLIP & FALL CASE, A PLAINTIFF MUST SHOW THAT DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGED HAZARDOUS CONDITION.
1) Whisby v. Bruno's, 228 Ga. App. 597, 492 S.E.2d 338 (1997). 2) Tudor v. Ford, ____ Ga. App. ____ (Case No. A99A1646) (3/2/00). In this case, a subcontractor sued the owner, who was also acting as his own general contractor, after the subcontractor stepped on a nail, which was sticking out of a piece of fascia board and partially covered by grass. The owner/general contractor was granted summary judgment based on testimony that at least once a day the owner and his son walked the property and cleaned up the construction site. There was no evidence in the record to establish that the owner/general contractor had actual knowledge of the fascia board with the nail. Likewise, the plaintiff could not present testimony to establish how long the fascia board had been lying in the grass. Within the context of this particular case, the once-a-day inspection "satisfies the defendant's initial burden of demonstrating the exercise of reasonable care in inspecting the premises and shifts the burden to Ford (claimant) to demonstrate how long the hazard had been present." Even assuming that constructive knowledge on the part of the owner/general contractor, summary judgment would have been granted based on testimony from the claimant that there were boards with nails all around the house. In dicts, the Court of Appeals stated that this would have established equal knowledge on the part of the claimant.
  • OWNER/OCCUPIER DOES NOT INSURE THE SAFETY OF INVITEES, BUT MUST EXERCISE ORDINARY CARE TO MAKE HIS PREMISES SAFE. THIS INCLUDES INSPECTING THE PREMISES TO DISCOVER POSSIBLE DANGEROUS CONDITIONS OF WHICH THE OWNER/OCCUPIER MAY NOT HAVE ACTUAL KNOWLEDGE, AND EXERCISING ORDINARY CARE TO PROTECT INVITEES FROM FORESEEABLE DANGERS.
1) Kelley v. Piggly Wiggly Southern Co., Inc., 230 Ga. App. 508, 496 S.E.2d 732 (1997). 2) Jones v. The Krystal Co., ____ Ga. App. ____ (Case No. A98A0078 (03/11/98).
  • WHERE A PLAINTIFF'S KNOWLEDGE OF THE DEFECTIVE CONDITION IS EQUAL TO THAT OF THE LAND OWNER/ OCCUPANT, THERE CAN BE NO RECOVERY.
1) Cleghorn v. Winn-Dixie Stores, 228 Ga. App. 766, 492 S.E.2d 745 (1997). Here a customer walked into an area, which had been barricaded with orange cones and shopping buggies while a refrigerator was prepared. The Plaintiff admitted seeing a sign which cautioned "wet floor" but denied seeing any water on the floor. The Plaintiff's contention was that he attempted to walk "very carefully." Summary judgment was granted.
  • THE TRUE GROUND FOR LIABILITY IS THE PROPRIETOR'S SUPERIOR KNOWLEDGE OF THE PERILOUS CONDITION, AND THE DANGER THEREFROM TO PERSONS GOING ON THE PROPERTY. IT IS ONLY WHEN THE PERILOUS CONDITION IS KNOWN TO THE OWNER AND NOT TO THE INVITEE THAT A RECOVERY IS PERMITTED. THE BASIS FOR A RECOVERY IS PROPRIETOR'S SUPERIOR KNOWLEDGE. WHERE THE INVITEE KNOWS OF THE CONDITION OR HAZARD, THERE IS NOT DUTY ON THE PART OF THE PROPRIETOR TO WARN THE INVITEE.
3)Denham v. YMCA, 231 Ga. App. 197, 499 S.E.2d 94 (1998). Summary judgment was granted where a club member walked into a Jacuzzi, in which the swirling waters, kept her from being able to see the steps, and fell. The Court held that the members knowledge of the alleged defect was equal to that of the YMCA prior to when she started down the steps.
  • CONSTRUCTIVE KNOWLEDGE CAN BE ESTABLISHED IN ONE OF TWO WAYS; BY EVIDENCE THAT EMPLOYEES WERE IN THE IMMEDIATE VICINITY AND COULD HAVE EASILY NOTICED AND REMOVED THE HAZARD, OR BY EVIDENCE THAT THE SUBSTANCE HAD BEEN ON THE FLOOR FOR SUCH A TIME THAT IT WOULD HAVE BEEN DISCOVERED HAD THE PROPRIETOR EXERCISED REASONABLE CARE IN INSPECTING THE PREMISES. TO SUPPORT THE SECOND BASIS OF CONSTRUCTIVE KNOWLEDGE THAT THE OWNER FAILED TO EXERCISE REASONABLE CARE IN INSPECTING PREMISES, THE PLAINTIFF MUST SHOW THAT THE FOREIGN SUBSTANCE WAS ON THE FLOOR FOR A LENGTH OF TIME FOR SUFFICIENT KNOWLEDGE TO BE IMPUTED TO THE DEFENDANT.
1) Kelley v. Piggly Wiggly Southern Co., Inc., 230 Ga. App. 508, 496 S.E.2d 732 (1997). 2) Jones v. The Krystal Co., ____ Ga. App. ____ (Case No. A98A0078 (03/11/98).
  • A PLAINTIFF MAY ESTABLISH CONSTRUCTIVE KNOWLEDGE BY EVIDENCE THAT AN EMPLOYEE WAS IN THE IMMEDIATE VICINITY OF A HAZARDOUS CONDITION AND COULD EASILY HAVE NOTICED AND CORRECTED IT.
  • Lawson v. Bruno's Food Stores, Inc., 229 Ga. App. 683, 494 S.E.2d 543 (1997). In this case the employee was unoccupied and had a clear, unobstructed view of a large puddle of water, which was located approximately 10 feet away.

  • WHEN AN INVITEE CONTENDS THAT A FOREIGN SUBSTANCE, SUCH AS WATER, WAS NOT READILY VISIBLE TO HER, SUMMARY JUDGMENT MAY BE AVAILABLE IF THE PLAINTIFF'S ONLY ALLEGATION OF NEGLIGENCE AGAINST THE OWNER/OCCUPANT IS THAT AN EMPLOYEE WAS IN THE IMMEDIATE AREA AND COULD HAVE EASILY SEEN AND REMOVED THE HAZARD. SHOWING THAT AN EMPLOYEE WAS MERELY WORKING IN THE IMMEDIATE AREA OF A FOREIGN SUBSTANCE IS NOT ENOUGH. THE EMPLOYEE MUST HAVE BEEN IN A POSITION TO HAVE EASILY SEEN THE HAZARD AND REMOVED IT. IF THE HAZARD WAS NOT READILY AVAILABLE TO THE PLAINTIFF, IT MAY NOT HAVE BEEN READILY VISIBLE TO THE EMPLOYEE.

    1) Haskins v. Piggly Wiggly Southern, Inc., 230 Ga. App. 350, 496 S.E.2d 471 (1998).
  • CONSTRUCTIVE KNOWLEDGE CAN ALSO RISE FROM THE FAILURE TO EXERCISE REASONABLE CARE IN INSPECTING THE PREMISES.
    1) Smith v. Winn-Dixie Atlanta, Inc., 203 Ga. App. 565, 417 S.E.2d 202 (1992). 2) Jones v. The Krystal Co., 231 Ga. App. 102, 498 S.E.2d 565 (1998).
  • JUST WHAT CONSTITUTES A REASONABLE INSPECTION PROCEDURE VARIES WITH EACH CASE, DEPENDING ON THE NATURE OF THE BUSINESS, THE SIZE OF THE STORE, THE NUMBER OF CUSTOMERS, THE NATURE OF THE DANGEROUS CONDITION, AND THE STORE'S LOCATION.
    1) Shepherd v. Winn-Dixie Stores, ____ Ga. App. ____ (Case No. A99A2128) (12/7/99). When a supermarket fills a table with crushed ice and produce, knowing their customers will remove the produce and likely cause at least some ice to fall on the floor, it creates a potential hazard to customers that may be very difficult to see and avoid. Thus, in this case, an inspection may be required more frequently than every 30 minutes.
  • TESTIMONY AS TO THE DEFENDANT'S USUAL, NORMAL OR CUSTOMARY PRACTICE REGARDING INSPECTION AND CLEANING IS NOT EVIDENCE THAT SUCH MAINTENANCE WAS, IN FACT, PERFORMED PRIOR TO A FALL. IT CREATES MERELY AN INFERENCE OF FACT BASED ON CUSTOM AND PRACTICE, AND IS NOT SUFFICIENT FOR SUMMARY JUDGMENT.
    1) Jordan v. Atlanta Replex Corp., 228 Ga. App. 670, 492 S.E.2d 536 (1997).
  • THE DUTY TO INSPECT IS NOT NEGATED BY EVIDENCE OF A POLICY OF REGULAR INSPECTION UNLESS THE DEFENDANT CAN SHOW THAT THE POLICY OF REGULAR INSPECTION WAS, IN FACT, BEING IMPLEMENTED AT THE TIME THE PLAINTIFF FELL.
    1) Jones v. The Krystal Co., 231 Ga. App. 102, 498 S.E.2d 565 (1998).
  • WHERE THERE IS NO EVIDENCE CONCERNING HOW OR WHEN MAINTENANCE WAS PREFORMED, AN OWNER/ OCCUPANT CAN BE HELD TO HAVE HAD CONSTRUCTIVE KNOWLEDGE OF A HAZARD. THIS IS BASED ON THE OWNER/OCCUPANT'S DUTY TO INSPECT. WHERE THE OWNER/OCCUPANT CANNOT SHOW THAT AN INSPECTION, ETC., WAS, IN FACT, PERFORMED, CONSTRUCTIVE KNOWLEDGE OF THE HAZARD MAY BE FOUND.
    1) Kelley v. Piggly Wiggly Southern Co., Inc., 230 Ga. App. 508, 496 S.E.2d 732 (1997). 2) Jones v. The Krystal Co., 231 Ga. App. 102, 498 S.E.2d 565 (1998).
  • IN THE ABSENCE OF EVIDENCE THAT THE OWNER/ OCCUPANT CONDUCTED A REASONABLE INSPECTION OF THE PREMISES THAT WOULD HAVE DISCOVERED THE FOREIGN SUBSTANCE, A PLAINTIFF IS NOT REQUIRED TO PRESENT EVIDENCE ESTABLISHING THE LENGTH OF TIME THAT THE SUBSTANCE WAS ALLOWED TO REMAIN ON THE FLOOR.
    1) Jones v. The Krystal Co., 231 Ga. App. 102, 498 S.E.2d 565 (1998).
  • WHERE A PLAINTIFF CANNOT SHOW THAT AN OWNER/ OCCUPANT HAD OTHER ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A HAZARD, THE OWNER/OCCUPANT HAS NO BURDEN TO SHOW THAT IT HAD AN INSPECTION PROCEDURE IN PLACE.
    1) Sharfuddin v. Drug Emporium Inc., ____ Ga. App. ____ (Case No. A97A1842) (2/20/98).
  • WHEN SEEKING SUMMARY JUDGMENT, A DEFENDANT HAS THE INITIAL BURDEN OF SHOWING THAT THE PLAINTIFF CANNOT SHOW CONSTRUCTIVE KNOWLEDGE OF THE HAZARD BY DEMONSTRATING THAT IT (DEFENDANT) EXERCISED REASONABLE CARE IN INSPECTING THE PREMISES. THIS BURDEN MAY BE CARRIED BY EVIDENCE OF COMPLIANCE WITH A REASONABLE INSPECTION PROCEDURE.
    1) Hopkins v. K-Mart Corp., ____ Ga. App. ____ (Case No. A98A0669) (5/11/98)
  • ONCE A DEFENDANT DEMONSTRATES A LACK OF ACTIONABLE CONSTRUCTIVE KNOWLEDGE BY COMPLIANCE WITH A REASONABLE INSPECTION PROCEDURE, THE BURDEN SHIFTS BACK TO THE PLAINTIFF TO SHOW HOW LONG THE FOREIGN SUBSTANCE HAD BEEN ALLOWED TO REMAIN ON THE FLOOR. THE PLAINTIFF MUST SHOW THAT THE SUBSTANCE WAS ON THE FLOOR FOR A LENGTH OF TIME SUFFICIENT FOR KNOWLEDGE TO BE IMPUTED TO THE DEFENDANT. THE LENGTH OF TIME, WHICH MUST EXIST TO SHOW THAT THE DEFENDANT HAD AN OPPORTUNITY TO DISCOVER THE DEFECT, WILL VARY WITH THE CIRCUMSTANCES OF EACH CASE, I.E., THE NATURE OF THE BUSINESS, THE SIZE OF THE STORE, THE NUMBER OF CUSTOMERS, THE NATURE OF THE DANGEROUS CONDITION, THE STORE'S LOCATION.
    1) Kroger Co. v. Brooks, 231 Ga. App. 651, 655, 500 S.E.2d 391 (1998). 2) Hopkins v. K-Mart Corp., ____ Ga. App. ____ (Case No. A98A0669) (5/11/98) 3) Hardee's Food Systems v. Green, 232 Ga. App. 865, 502 S.E.2d 738 (1998). 4) Straughter v. J. H. Harvey Company, 232 Ga. App. 29, 500 S.E.2d 353 (1998).
  • IN ORDER TO OBTAIN SUMMARY JUDGMENT, BASED ON A LACK OF CONSTRUCTIVE KNOWLEDGE, THE OWNER MUST DEMONSTRATE NOT ONLY THAT IT HAD A REASONABLE INSPECTION PROGRAM IN PLACE, BUT THAT SUCH PROGRAM WAS ACTUALLY BEING CARRIED OUT AT THE TIME OF THE OCCURRENCE AT ISSUE.
    1) Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645, ___ S.E.2d ____ (1999) 2) Straughter v. J. H. Harvey Company, 232 Ga. App. 29, 30, 500 S.E.2d 353 (1998). 3) Shepherd v. Winn-Dixie Stores, ____ Ga. App. ____ (Case No. A99A2128) (12/7/99)
  • WHERE THE PLAINTIFF IN HIS CASE IN CHIEF AT TRIAL MAKES OUT A PRIMA FACIE CASE BY SATISFYING THE TWO PRONG TEST OF ALTERMAN FOODS BY PROVING KNOWLEDGE ON THE PART OF THE OWNER/OCCUPIER AND THE EXERCISE OF ORDINARY CARE FOR HIS OWN SAFETY (OR A LEGITIMATE REASON WHY HE DID NOT DISCOVER THE HAZARD) THEN THE DEFENDANT HAS A BURDEN OF PROOF AS TO ANY AFFIRMATIVE TORT DEFENSES ASSERTED BY THE DEFENDANT.
    1) Kroger Company v. Brooks, 231 Ga. App. 651, 655, 500 S.E.2d 391 (1998)
  • A STATIC CONDITION IS BY DEFINITION SOMETHING THAT DOES NOT CHANGE. A STATIC CONDITION IS NOT DANGEROUS UNLESS SOMEONE FAILS TO OBSERVE IT AND STEPS INTO IT.
    1) Marta v. Fife, 220 Ga. App.,. 298, 300, 469 S.E.2d 420 (1996). This case involved an open and obvious drainage culvert. 2) Poythress v. Savannah Airport Commission, 229 Ga. App. 303, 494 S.E.2d 76 (1997). This case involved a sloped ramp, which allegedly blended into the surrounding concrete and was not painted to contrast with the sidewalk. Summary judgment was granted.
  • OCCUPIERS OF PREMISES WHEREON THE PUBLIC IS INVITED TO COME ARE NOT REQUIRED TO KEEP THEIR PARKING LOTS AND OTHER SUCH AREAS FREE FROM IRREGULARITIES AND TRIFLING DEFECTS. ONE COMING UPON SUCH PREMISES IS NOT ENTITLED TO AN ABSOLUTELY SMOOTH OR LEVEL WAY OF TRAVEL. IT IS COMMON KNOWLEDGE THAT SMALL CRACKS, HOLES AND UNEVEN SPOTS OFTEN DEVELOP IN PAVEMENT. IT HAS ALSO BEEN HELD THAT WHERE THERE IS NOTHING TO OBSTRUCT OR INTERFERE WITH ONE'S ABILITY TO SEE SUCH A STATIC DEFECT, THE OWNER OF THE PREMISES IS JUSTIFIED IN ASSUMING THAT A VISITOR WILL SEE IT AND REALIZE THE RISK INVOLVED.
    1) Tanner v. Larango, 232 Ga. App. 599, 502 S.E.2d 516 (1998). 2) Dunn v. Gormay of Macon, 207 Ga. App. 826, 429 S.E.2d 282 (1993) 3) Bloch v. Herman Sporting Goods, 208 Ga. App. 280, 430 S.E.2d 86 (1993)
  • WHERE A PERSON HAS PREVIOUSLY SUCCESSFULLY TRAVERSED AN AREA IN WHICH A STATIC CONDITION IS LOCATED, THE PERSON WILL BE HELD TO HAVE EITHER ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE CONDITION. IN SUCH CASES, THE LAND OWNER HAS NO DUTY TO WARN THE INVITEE OF THE STATIC CONDITION SINCE THE INVITEE HAS EQUAL KNOWLEDGE. WHERE NOTHING OBSTRUCTS THE INVITEE'S ABILITY TO SEE THE STATIC CONDITION, THE LAND OWNER MAY PRESUME THAT THE INVITEE WILL SEE IT AND WILL REALIZE ANY ASSOCIATED RISK.
    1) Poythress v. Savannah Airport Commission, 229 Ga. App. 303, 494 S.E.2d 76 (1997). 2) Nicholson v. Pike Nurseries, 229 Ga. App. 540, 494 S.E.2d 214 (1997). Here the Plaintiff fell while walking down a concrete ramp, which was wet. The Plaintiff alleged the ramp was slick. Only minutes earlier, the Plaintiff had walked up the same ramp and knew it was wet. Summary judgment was granted. 3) Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 44 S.E.2d 341 (1994). 4) Echols v. Whiskers Food & Spirits, Inc., 229 Ga. App. 8240, 493 S.E.2d 700 (1997). This case involved a claimant who fell while walking downstairs in a restaurant. Allegations of poor lighting and dark carpeting were not sufficient to prevent summary judgment. 5) Dickman v. South City Management, Inc., 229 Ga. App. 289, 494 S.E.2d 64 (1997). 6) Mechanical Equipment Company v. Hoose, 241 Ga. App. 412, ____ S.E.2d ____ (1999). This case involved an invitee, who fell while walking down some cross-tie steps which she alleged to be loose. The steps had been used by the same invitee on previous occasions without incident so that the invitee was credited with equal knowledge of any defects. The fact that a building code was alleged was not sufficient to prevent summary judgment since the invitee would have had equal knowledge of any negligence or negligence per se.
  • IT IS AXIOMATIC THAT IN EVERY DAY LIFE, PERSONS ARE REQUIRED TO NEGOTIATE FLOORS, STEPS, AND DOORWAYS OF BUILDINGS. PROOF OF A FALL, WITHOUT MORE, DOES NOT GIVE RISE TO LIABILITY. THE TRUE GROUND FOR LIABILITY IS SUPERIOR KNOWLEDGE. THERE MUST BE PROOF OF FAULT ON THE PART OF THE OWNER AND IGNORANCE OF THE DANGER ON THE PART OF THE INVITEE TO ESTABLISH LIABILITY.
    1) Dickman v. South City Management, Inc., 229 Ga. App. 289, 494 S.E.2d 64 (1997). This case involved a Plaintiff who fell while walking down some stairs at a restaurant. The allegation was that the Plaintiff's high heel had caught in the mortar, causing the fall. There was also an allegation of poor lighting. The Plaintiff had successfully negotiated the stairs earlier in the evening.
    • FLOOR MATS
      1) Jet Food Stores v. Kicklighter, 226 Ga. App. 552, 487 S.E.2d 120 (1997). Floor mats, which are subject to periodic folding, bunching, rolling or shifting, can constitute hazards for which a land owner may be liable. 2) Whatley v. National Services Industries, Inc., 228 Ga. App. 602, 492 S.E.2d 343 (1997).
    • A DISTINCTION EXISTS BETWEEN CASES IN WHICH THE NEGLIGENCE IS ACTIVE AND CASES INVOLVING A STATIC CONDITION OR PASSIVE NEGLIGENCE. THE LANDOWNER MAY HAVE A STATIC CONDITION ON HIS LAND IF IT IS NOT SO CLOSE TO A WELL TRAVELED PATH THAT IT PRESENTS A DANGER TO THOSE WHO MIGHT ACCIDENTALLY STEP OFF THE PATH.
      1) Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 522 S.E.2d 739 (1999).
    • THE MERE FACT THAT THERE MAY HAVE BEEN NO PRIOR INCIDENTS OR COMPLAINTS CONCERNING LIGHTING DOES NOT ABSOLVE A LAND OWNER FROM LIABILITY, WHERE THE PLAINTIFF TESTIFIES THE LIGHTING WAS DARK AND THAT HE HAD DIFFICULTY SEEING. A LAND OWNER IS UNDER A DUTY TO INSPECT THE PREMISES TO DISCOVER POSSIBLE DANGEROUS CONDITIONS OF WHICH HE DOES NOT KNOW AND TO THEN TAKE REASONABLE PRECAUTIONS TO PROTECT INVITEES FROM DANGERS WHICH ARE FORESEEABLE FROM THE ARRANGEMENT AND USE OF THE PREMISES.
      1) Whatley v. National Services Industries, Inc., 228 Ga. App. 602,492 S.E.2d 343 (1997).
    • THE "PLAIN VIEW" DOCTRINE IS THE EQUIVALENT OF THE CONSTRUCTIVE KNOWLEDGE ASPECT OR VOLUNTARY NEGLIGENCE ON THE PART OF A PLAINTIFF. IT IS APPLIED TO A HAZARD IN PLAIN VIEW AT A LOCATION WHERE IT IS CUSTOMARILY FOUND AND CAN BE EXPECTED TO BE BUT WHICH THE INVITEE PROFESSES NOT TO HAVE SEEN PRIOR TO THE FALL.
      1) West Lumber Company v. Beck, 231 Ga. App. 46, 497 S.E.2d 647 (1998).
    • PROOF OF NOTHING MORE THAN A FALL IS INSUFFICIENT TO ESTABLISH THE PROPRIETOR'S NEGLIGENCE.
      1) Jordan v. Atlanta Replex Corp., 228 Ga. App. 670, 492 S.E.2d 536 (1997). Where the Plaintiff alleges that the condition of a floor constituted a hazard, he must at a minimum, show that the proprietor was negligent in the materials used to create a floor (ice rink) or in maintaining it.
    • IF THE PLAINTIFF DOES NOT KNOW THE CAUSE OF HER FALL AND CANNOT PRESENT EVIDENCE TO CREATE A MATERIAL ISSUE OF FACT AS TO THE CAUSE AND DEMONSTRATE THAT SUCH CAUSE WAS THE CONSEQUENCE OF A BREACH OF DUTY ON THE PART OF THE OWNER/PROPRIETOR, THEN SUMMARY JUDGMENT IS APPROPRIATE.
      1) Jordan v. Atlanta Replex Corp., 228 Ga. App. 670, 492 S.E.2d 536 (1997).
    • IN A SLIP AND FALL CASE ALLEGEDLY RESULTING FROM THE DEFENDANT'S NEGLIGENCE IN MAINTAINING A HIGHLY WAXED AND SLIPPERY FLOOR, THE PLAINTIFF MUST, AT A MINIMUM, SHOW THAT THE DEFENDANT WAS NEGLIGENT EITHER IN THE MATERIALS HE USED IN TREATING THE FLOOR OR IN THE APPLICATION OF THEM.
      1) Kolomichuck v. Bruno's, Inc., 230 Ga. App. 638.497 S.E.2d 10 (1998).
    • WHERE DISTRACTION IS SELF-INDUCED, THE PLAINTIFF CAN NO MORE TAKE BENEFIT OF IT TO EXCUSE HIS LACK OF CARE FOR HIS OWN SAFETY THAN ONE WHO CREATES AN EMERGENCY CAN EXCUSE HIMSELF BECAUSE OF THE EMERGENCY.
      1) Wal-Mart Stores, Inc. v. Hester, 201 Ga. App. 478, 411 S.E.2d 507 (1991). In this case the Plaintiff was looking towards the back of the store for ceiling fans. The court's holding was that there was no distraction and that the Plaintiff was simply not looking where he was walking.
    • A POSSIBLE CONFRONTATION WITH VEHICULAR TRAFFIC ON A LAND OWNER'S PROPERTY MAY BE A SIGNIFICANT DISTRACTION FOR A PEDESTRIAN - INVITEE ON THE PREMISES. THE MERE FACT, HOWEVER, THAT VEHICLES ARE REGULARLY IN THE AREA DOES NOT, STANDING ALONE, ESTABLISH A THE DISTRACTION. THE INVITEE MUST HAVE, IN FACT, BEEN DISTRACTED.
      1) Poythress v. Savannah Airport Commission, 229 Ga. App. 303, 494 S.E.2d 76 (1997).
    • A GREETING INITIATED BY A STORE EMPLOYEE, WHICH DISTRACTS ATTENTION TO THE EMPLOYEE, MAY CONSTITUTE SUCH A DISTRACTION AS TO EXCUSE A PLAINTIFF'S FAILURE TO SEE A PUDDLE OF WATER, ETC.
      1) Lawson v. Bruno's Food Stores, Inc., 229 Ga. App. 683, 494 S.E.2d 543 (1997).
    • ALTHOUGH A MERCHANT HAS THE RIGHT TO PLACE CERTAIN ARTICLES IN THE AISLES OF HIS STORE, NEVERTHELESS, THE MERCHANT MUST PLACE SUCH ARTICLES SO AS NOT TO THREATEN DANGER TO THOSE USING THE AISLE AND SO THAT THEY ARE IN FULL SIGHT AND WITHIN THE OBSERVATION OF EVERYONE. AS A COROLLARY, CUSTOMERS MUST EXERCISE ORDINARY CARE FOR THEIR OWN SAFETY, AND MUST BY THE SAME DEGREE OF CARE AVOID THE EFFECT OF THE MERCHANT'S NEGLIGENCE AFTER A HAZARD BECOMES APPARENT TO THEM OR IN EXERCISE OF ORDINARY CARE THEY SHOULD HAVE BECOME AWARE OF IT.
      1) Sadtler v. Winn-Dixie, Inc., 230 Ga. App. 731, 498 S.E.2d 101 (1998).
    • THE ACCUMULATION OF NATURALLY OCCURRING ICE DOES NOT NEGATE AN OWNER'S DUTY TO EXERCISE ORDINARY CARE AND TO INSPECT THE PREMISES. ICE FORMING DUE TO NATURAL FORCES, UNAFFECTED BY HUMAN AGENCY, DOES NOT PRECLUDE INSPECTION.
      1) Dumas v. Tripps of North Carolina, Inc, 229 Ga. App. 814,495 S.E.2d 129 (1997). This case involved an accumulation of ice in a parking lot and a claimant who slipped and fell after getting out of her car. The court found the claimant had no reason to expect the ice since the area was dark, and there had been no snow or rain during the preceding week. The ice had formed from a water run off about which the claimant was unaware.
    • TO AVOID SUMMARY JUDGMENT, A PLAINTIFF, WHO ALLEGES HE SLIPPED ON A FOREIGN SUBSTANCE, MUST OFFER SOME EVIDENCE OF A FOREIGN SUBSTANCE ON THE GROUND WHERE HE SLIPPED. CIRCUMSTANTIAL EVIDENCE MAY BE RELIED UPON.
      1) Williams v. Emro Marketing, 229 Ga. App. 468, 494 S.E.2d 218 (1997). Here a witness noticed that water had drained from a down spout and had frozen on the ground in the same area where the Plaintiff slipped and fell. There was also ice hanging directly over where the Plaintiff fell.
    • THE ACCEPTED TEST TO DETERMINE WHETHER ONE IS AN INVITEE OR LICENSEE IS WHETHER THE PARTY COMING ONTO THE BUSINESS PREMISES HAD PRESENT BUSINESS RELATIONS WITH THE OWNER OR OCCUPIER WHICH WOULD RENDER HIS PRESENCE OF MUTUAL BENEFIT TO BOTH, OR WHETHER HIS PRESENCE WAS FOR HIS OWN CONVENIENCE, OR WAS FOR BUSINESS WITH ONE OTHER THAN THE OWNER OR OCCUPIER.
      1) Savage v. Flagler Company, 185 Ga. App. 334, 337, 364 S.E.2d 52 (1987), rev'd on other grounds, 258 Ga. 335 (1988). 2) Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 522 S.E.2d 738 (1999).
    • A LAND OWNER IS UNDER NO DUTY TO KEEP HIS PREMISES IN A SAFE CONDITION FOR THE BENEFIT OF TRESPASSERS OR BARE LICENSEES. TO THE LICENSEE, AS TO THE TRESPASSER, NO DUTY ARISES OF KEEPING THE USUAL CONDITION OF THE PREMISES UP TO ANY GIVEN STANDARD OF SAFETY, EXCEPT THAT THEY MUST NOT CONTAIN PITFALLS, MANTRAPS, AND THINGS OF THAT CHARACTER. THE DOCTRINE OF A MANTRAP RESTS ON THE THEORY THAT THE LAND OWNER WAS EXPECTING THE TRESPASSER OR LICENSEE AND PREPARED HIS PREMISES TO INJURE THE VISITOR. IF THE HAZARD IS NOT SO CLOSE TO A TRAVELED PATH AS TO POSE A DANGER TO THOSE ACCIDENTALLY STEPPING OFF THE PATH, IT IS NOT A MANTRAP. THE PRINCIPLE THAT IT IS WILFUL AND WANTON NOT TO EXERCISE ORDINARY CARE TO PROTECT A LICENSEE ONLY APPLIES WHEN THE INJURED PERSON IS ACTUALLY KNOWN TO BE OR MAY REASONABLY BE EXPECTED TO BE WITHIN RANGE OF A DANGEROUS ACT BEING DONE OR A HIDDEN PERIL ON ONE'S PREMISES. THIS IS SIMPLY AN APPLICATION OF THE DUTY NOT TO INJURE WANTONLY OR WILFULLY, AND DOES NOT APPLY WHEN THE ALLEGED NEGLIGENCE ARISES FROM STATIC OR PASSIVE CONDITIONS.
      1) Trammell v. Baird, 262 Ga. 124, 126, 413 S.E.2d 445 (1992). 2) Moore-Sapp Investors v. Richards, 240 Ga. App. 798, 799, 522 S.E.2d 739 (1999).
    • EVEN THOUGH THE LANDLORD IS UNDER A STATUTORY DUTY TO KEEP THE PREMISES IN REPAIR, O.C.G.A. §§ 44-7-13 AND 44-7-14, HE IS NOT AN INSURER OF THE TENANT'S SAFETY.
      1) Etheridge v. Davis, ____ Ga. App. ____, Case No. A99A1844 (3/2/00). In this particular case, a tenant slipped and fell on water in his kitchen, which had leaked onto the floor from an upstairs apartment. The problem had persisted for several months and had been reported to maintenance. Despite several notices to the apartment, the leak was not repaired. "Here, while there had been no actual repair of the problem leak, nothing done by the landlord prior to Davis's fall distracted him from the hazard created by the dripping water. Rather, knowing that the leak was persistent and unpredictable and then he would not be able to see the water on the floor due to the white linoleum, Davis walked directly into the area where the water fell without looking at the ceiling or the floor."
    • HAVING FULLY PARTED WITH POSSESSION AND THE RIGHT OF POSSESSION, A LANDLORD IS NOT RESPONSIBLE TO THIRD PARTIES FOR DAMAGES RESULTING FROM THE NEGLIGENCE OR ILLEGAL USE OF THE PREMISES BY A TENANT, PROVIDED, A LANDLORD IS RESPONSIBLE FOR DAMAGES ARISING FROM DEFECTIVE CONSTRUCTION OR FOR DAMAGES ARISING FROM THE FAILURE TO KEEP THE PREMISES IN REPAIR. O.C.G.A. § 44-7-14. THE LIABILITY OF AN OWNER FOR FAILURE TO REPAIR, WHO HAS FULLY PARTED WITH POSSESSION AND THE RIGHT OF POSSESSION, ARISES ONLY IN INSTANCES WHERE THERE IS A DUTY TO REPAIR AND NOTICE HAS BEEN GIVEN OF THE DEFECT. WHERE A TENANT HAS AGREED BY CONTRACT WITH THE LANDLORD TO BE RESPONSIBLE FOR MAINTENANCE AND REPAIR, THEREBY UNDERTAKING THE DUTY IMPOSED BY O.C.G.A. § 44-7-14, PUBLIC POLICY DOES NOT REQUIRE THE LANDLORD TO REMAIN LIABLE TO THIRD PARTIES FOR NEGLIGENCE UNLESS THERE IS NOTICE. O.C.G.A. § 44-7-2(b). O.C.G.A. § 44-7-2(b) WHICH PROHIBITS LANDLORDS FROM WAIVING, SIGNING, TRANSFERRING OR OTHERWISE AVOIDING THE RIGHTS, DUTIES, AND REMEDIES PROVIDED BY O.C.G.A. § 44-7-14 APPLIES ONLY TO PROPERTY USED AS A DWELLING PLACE. A COMMERCIAL TENANT, WHO HAS EXCLUSIVE USE OF THE PREMISES, IS IN THE BEST POSITION TO PRESERVE THE PROPERTY OR SAFEGUARD ITS USE.
      1) Johnson v. Loy, 231 Ga. App. 431, 499 S.E.2d 140 (1998)
    • WHERE A LANDLORD RETAINS THE RIGHT TO ENTER THE LEASED PREMISES DURING BUSINESS HOURS FOR LANDLORD-RELATED PURPOSES THIS DOES NOT CONSTITUTE SUFFICIENT DOMINION AND CONTROL OF THE PREMISES SO AS TO VITIATE THE LANDLORD'S LIMITED LIABILITY UNDER O.C.G.A. § 44-7-14, AND REPLACE IT WITH THE ORDINARY CARE STANDARD REQUIRED BY O.C.G.A. § 51-3-1 FOR THE PROTECTION OF INVITEES. THERE IS ONE INSTANCE IN WHICH AN OWNER MAY BE LIABLE TO THIRD PARTIES FOR INJURIES, WHERE THE OWNER HAS PARTED WITH POSSESSION AND THE RIGHT OF POSSESSION AND THE TENANT HAS UNDERTAKEN THE DUTY TO REPAIR. THIS IS WHERE THE OWNER HAS NOTICE OF A DANGEROUS OR HAZARDOUS CONDITION ON THE PREMISES. STATUTE HOLDS THE OWNER IS RESPONSIBLE FOR DEFECTS OF WHICH HE KNOWS OR IN THE EXERCISE OF DILIGENCE OUGHT TO KNOW. HOWEVER, A LANDLORD WHO HAS NO NOTICE OF THE DEFECT GIVING RISE TO THE NEED FOR REPAIR HAS NO DUTY TO THIRD PARTIES. IN SUCH CASES, THE LANDLORD HAS NO LEGAL DUTY TO INSPECT TO DISCOVER DEFECTS. THIS IS, HOWEVER, LIMITED TO CASES IN WHICH THE LEASE AGREEMENT GIVES THE TENANT EXCLUSIVE CONTROL AND OBLIGATION TO KEEP THE PREMISES IN REPAIR.
      1) Johnson v. Loy, 231 Ga. App. 431, 499 S.E.2d 140 (1998). 2) Groutas v. McCoy, 219 Ga. App. 252(1) (469 S.E.2d 657) (1995) (lease gave tenant exclusive control and obligation to keep the premises safe, except for certain items not including a fence, which caused the Plaintiff's injury).

 


  
 

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