In a recent personal injury case in Georgia, the Court of Appeals found that the trial court erred in concluding that the hazard on which the plaintiff tripped (a protruding rebar) was an open and obvious static condition. The Court of Appeals said, contrary to the trial court’s conclusion, the plaintiff didn’t testify that the hazard of open and obvious. Further, a manager of a store in the shopping center testified that, in the minutes following plaintiff’s fall, it was very dark outside, the area was not very lit, and the dark-colored rebar blended in with the concrete so that she could not see it without using a flashlight.
Background
In December 2017, while walking through a shopping center parking lot owned by the defendant between 7-8 pm, the plaintiff fell after she tripped on a six-to-eight-inch section of metal rebar sticking out at an angle from the parking lot surface. As a result of the fall, she suffered injuries to her head, nose, face, neck, jaw, knee, and shoulder. She sued the defendant for negligence, seeking damages for the injuries she sustained in her fall. Following discovery, the defendant moved for summary judgment, arguing among other thigs that the hazard was an open and obvious static defect.
The trial court agreed and granted the defendant’s motion. This appeal followed.
The Plaintiff’s Argument to the Court of Appeals
The plaintiff contended that the trial court erred when it ruled that the protruding rebar was an open and obvious static condition.
Senior Appellate Judge Herbert E. Phipps wrote for a panel of the Georgia Court of Appeals and said that the question of whether a static condition was open and obvious implicates the duty and breach elements of a negligence claim. Citing a 2020 decision, the judge wrote:
Under OCGA § 51-3-1, a person who owns or occupies land and by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. In order to recover on a premises liability claim, a plaintiff must show (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. … In other words, a plaintiff is not entitled to recovery if the undisputed evidence demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant.
Judge Phipps explained that where a claim involves a static condition—one that doesn’t change and is dangerous only if someone fails to see it and walks into it—a proprietor may safely assume that an invitee will see it and will realize any associated risks if nothing obstructs his or her ability to see the static condition. Thus, even if a defendant-proprietor had knowledge of an alleged hazard, a plaintiff-invitee can’t recover if the hazard was open and obvious.
Here, the trial court concluded that the plaintiff’s own testimony established that the hazard was an open and obvious static condition. However, Judge Phipps said that the trial court didn’t identify any testimony provided by the plaintiff during her deposition supporting a conclusion that the hazard was open and obvious, and a review of her testimony by the Court of Appeals likewise revealed no such statements.
And while the defendant argued that the rebar was open and obvious because it “was exposed and protruding from the concrete … approximately six to eight inches,” other record evidence supports a contrary conclusion. In particular, a manager of a store in the shopping center testified in a deposition that, in the minutes following the plaintiff’s fall, it was “very dark” outside, and the area “was not very lit.” The manager further testified that the dark-colored rebar “blended in with the concrete” so that she couldn’t see it without using a flashlight. Plus, a flash photograph taken by the manager supports her testimony that the rebar was hard to see.
Consequently, the trial court erred when it determined that no issues of material fact existed as to whether the hazard was open and obvious. The Court of Appeals reversed its ruling of summary judgment for the shopping mall owner. John v. Battle Station, LLC, 2022 Ga. App. LEXIS 401 *; 2022 WL 3591714 (Ga. App. August 23, 2022).
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