What is the “Prior Traversal Rule”?
The Georgia Court of Appeals recently held that a trial court did not err in denying a shopping complex owner’s motion for summary judgment in a premises liability action. The evidence was sufficient to create a jury issue as to whether the parking bumpers created a hazard because their placement next to the parking space, instead of at its front, was unusual. Plus, the bumpers weren’t distinguished by color from the white parking stripe on which they rested. In addition, the prior traversal rule didn’t entitle the defendant to summary judgment for those same reasons and because the evidence of whether the injured plaintiff successfully navigated the specific hazard prior to her trip and fall was not undisputed.
Background
The owner of a shopping center (“the owner”) appealed the denial of its motion for summary judgment in a premises liability action. The owner argues that it was entitled to summary judgment because, as a matter of law, the structure that tripped the plaintiff wasn’t a hazard and because she’d already traversed it.
On the evening of January 12, 2020, while it was dark outside, the plaintiff and her husband went to a restaurant to watch a football game with friends. The restaurant is located in a shopping center owned by the owner. The plaintiff and her husband parked in a space in the parking lot, walked to the restaurant and watched the game. They left at halftime.
As the plaintiff was walking to their car, she tripped on a concrete barrier that separated their parking space from an area designated for motorcycle parking. The plaintiff was injured in the fall.
The barrier consisted of three concrete parking bumpers or wheel stops laid end to end to separate the parking space from the motorcycle parking area. The parking bumpers were adjacent to the parking space, not across the front of the parking space as is usual with parking bumpers. They were light in color, either white or the color of natural concrete, and rested on the painted white line of the parking space.
Before her fall, the parking bumpers had been painted red and yellow. But a month before the plaintiff’s fall, asphalt work was performed on the parking lot. At the completion of the project, new parking bumpers were installed but weren’t painted the contrasting yellow and red colors and instead were left their natural color.
Five days after the plaintiff’s fall, the owner had the parking bumpers painted yellow at the request of the owner of the restaurant. The owner conceded that it was easier to see parking bumpers painted yellow than parking bumpers left in their natural, light color.
The owner argued that it was entitled to summary judgment because wheel stops and parking bumpers aren’t hazards as a matter of law and because the plaintiff already had traversed the parking bumpers before she fell.
Wheel Stops and Parking Bumpers May Constitute Hazards
Presiding Judge McFadden explained that the threshold point of an inquiry in a trip-and-fall case is the existence of a hazardous condition on the premises. The owner argued that invitees must always anticipate wheel stops and parking bumpers in parking lots, so that in most cases, as a matter of law, such structures may not be considered to be a hazard.
Here, viewing the evidence in the plaintiff’s favor, the placement of the parking bumpers was adjacent to the parking space, instead of at its front. This was unusual, and the bumpers weren’t distinguished by color from the white parking stripe on which they rested. This evidence was sufficient to create a jury issue as to whether the parking bumpers created a hazard, Judge McFadden said.
Further, the Court of Appeals held that whether that structure is a hazard and whether The plaintiff had constructive knowledge of the alleged hazard from traversing it before are jury questions.
Prior Traversal Rule
The owner argued that the prior traversal rule entitled it to summary judgment. But Judge McFadden and the Court of Appeals said it did not.
Quoting a 2020 decision, the judge wrote, “Georgia’s longstanding prior traversal rule provides that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.”
However, the rule has its limits, he explained. It only applies to cases involving a static condition that’s readily discernible to a person exercising reasonable care for his own safety. Moreover, it’s the plaintiff’s knowledge of the specific hazard precipitating a trip and fall that’s determinative—not merely her knowledge of the generally prevailing hazardous conditions or of hazardous conditions which a plaintiff observes and avoids.
Here, viewing the evidence in the light most favorable to the plaintiff, the Court of Appeals found that it couldn’t conclude as a matter of law that she had knowledge equal or superior to the owner’s knowledge of the parking bumpers. For one thing, Judge McFadden said that the evidence of whether the plaintiff successfully navigated the specific hazard isn’t undisputed. Viewed in her favor, the plaintiff’s testimony was that she’d previously walked within close proximity of the parking bumpers when she walked to the restaurant. She didn’t notice the parking bumpers then, and she wasn’t certain that she’d taken the same route when she returned to her car. Also, the placement of the parking bumpers adjacent to the parking space, instead of at its end, was unusual. Plus, the bumpers weren’t distinguished by color from the white parking stripe on which they rested, causing them to be harder to see than they would’ve been had they been painted a contrasting color.
Judge McFadden also quoted a case from last year that stated:
[A] reasonable juror would be entitled to find that [the plaintiff] did not precisely retrace her exact path, step by step, from earlier in the evening when she returned to her vehicle. Moreover, … a reasonable juror also could find that the difficult-to-see [parking bumpers] would not have been visible even if [the plaintiff’s] earlier path of travel had taken her right next to [them].
As such, the Court held that the trial court didn’t err in denying the owner’s motion for summary judgment. Brixmor New Chastain Corners SC, LLC v. Ja es, 2023 Ga. App. LEXIS 81 (Ga. App. February 16, 2023).
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