An invitee must prove (1) that the owner had constructive knowledge of the hazard, and (2) that the invitee lacked knowledge of the hazard despite the exercise of ordinary care.

March 27, 2020

In the Court of Appeals of Georgia


Slip and Fall in Georgia

When people slip, they often fall, and equally often they are injured. However, showing that the party responsible for the place in which the slip and fall occurred failed in its duty to keep that place safe is complicated by every person’s ability to recognize unsafe places. That is, the person who slips can’t claim an unreasonable lack of knowledge of obvious slippery conditions.

What is summary judgment?

A trial court in the present case denied a motion for summary judgment to the Defendant hotel. Parties make motions for summary judgment when they believe that the facts as stated support a ruling in their favor based on the law. The hotel’s motion was based on the fact that the Plaintiff had good reason to realize that a sidewalk near the hotel pool would be slippery, and therefore the Plaintiff couldn’t make a case she could win.

After the denial of this motion, the Plaintiff brought in an expert — a retired OSHA trainer — who claimed that a sidewalk at a hotel, near a pool, was not maintained in a safe condition. OSHA is the Occupational Safety and Health Administration, an agency of the United States Department of Labor whose mission is to “ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.”

The hotel’s motion for summary judgment then, if it had been granted, would have stopped the trial, and prevented that expert from testifying. The Court of Appeals court here agreed with the defendant, and reversed the denial. That is, the Court found that the expert’s testimony was irrelevant, since the case could be decided on the facts as presented in the best light for the Plaintiff.

The owner or occupier of [a] premises is under a duty to keep its premises reasonably safe and to warn of hidden dangers or defects not observable to invitees who are exercising ordinary care for their own safety. However, a property owner is not an insurer of the safety of its invitees. The mere showing of the occurrence of an injury does not create a presumption of negligence. Cleghorn v. Winn Dixie Stores, 228 Ga. App. 766, 766 (492 SE2d 745) (1997).

Some additional facts, attested to the Plaintiff’s knowledge of the slippery conditions by the pool.

She knew that the area had been walked on by others who had used the pool. More damningly, she was walking right behind her grandson, who was dripping wet, just prior to her fall.

By her own testimony, her case was lost

The Plaintiff and her expert tried to portray the chipped paint on the sidewalk as significant, however the Plaintiff also testified that she had walked on that same stretch of sidewalk prior to the fall, and had noticed the chipped paint, but had not difficulty walking on it then. Further, she testified that the lighting in the area shows the sidewalk as “slick.” Finally, just prior to slipping, she warned her grandson to be careful. All of these show, rather clearly, that the Plaintiff was aware that the area was slippery just before her fall.

The hotel did have a duty to notify people of any superior knowledge of the dangerous condition. “Superior” knowledge here simply means knowledge that the hotel had but the Plaintiff didn’t, and which relates to conditions and the likelihood of slipperiness.

What is superior knowledge in a fall case?

[T]o recover damages for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. Weickert v. Home Depot U. S. A., 347 Ga. App. 889, 891 (821 SE2d 110) (2018).

Constructive knowledge here refers to the idea that some knowledge one actually has (actual knowledge), while another kind of knowledge one “should” have figured out based on the circumstances.

However, here nothing shows that such superior knowledge existed. That is, there is no evidence that hotel employees had been in the vicinity recently, and the Plaintiff didn’t point out previous falls under similar circumstances. There is, however, evidence that the Plaintiff had actual and constructive knowledge of the potentially hazardous conditions.

A simple reading of this decision concludes that one side (the Defendant) knew the law and asked the right questions. The Plaintiff’s answers to those questions were her own undoing. The other side could, perhaps, have brought out some facts to support its case, but it did not.