What is a “Static Condition” in a Premises Liability Action?
An injured victim appealed from the trial court’s order granting summary judgment to the owner of a gas station in a Georgia premises liability case.
She tripped on broken concrete
The plaintiff attended a family funeral on January 5, 2021. When they left the service, the plaintiff and several others stopped at a nearby gas station owned by the defendant.
The plaintiff pulled up to the gas pump. After she started to fill her car with gas, she walked across the parking lot to talk to her friends who were in another vehicle. She visited with them briefly, then started walking back to her car along the same path or something “real close to it.”
Before she reached her car, however, she tripped and fell to the ground. Although she was hurt, she managed to get up and leave the gas station in her vehicle. But her condition continued to worsen, and she eventually sought medical care.
Shortly after the fall, the plaintiff called the gas station to report the incident to the manager. The manager found security video footage showing her fall, and the plaintiff returned to the gas station to review the video and take photographs of the area of the parking lot where she tripped. While in the area, the plaintiff noted that the concrete “wasn’t horrible, but it did have holes through it and some areas were not level.”
In her deposition, the plaintiff testified that, when she tripped, she “felt like her foot, the tip of her foot went into a hole.” She also expressed uncertainty about the cause, stating: “But then I looked at it again, and there’s a concrete seam there where it’s slightly elevated on one side opposed to the other.
So I don’t know.” the plaintiff admitted that these issues with the concrete were “pretty easy to see … once I was looking,” and she had no problem detecting them when taking the pictures. In fact, she described the alleged hazards as “readily observable” in her summary judgment briefing.
The plaintiff further testified that it was sunny at the time of her fall, and nothing obstructed her vision as she was walking. According to the plaintiff, she didn’t notice any cracks or problems with the pavement prior to her fall because she “wasn’t paying attention” and “wasn’t looking down.”
O.C.G.A. § 51-3-1 governs owners of land
Chief Judge Amanda H. Mercier wrote in her opinion for the Georgia Court of Appeals panel that, pursuant to O.C.G.A. § 51-3-1, when an owner or occupier of land “induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”
To recover in premises liability, a plaintiff must demonstrate that
- The landowner/occupier had actual or constructive knowledge of the hazard; and
- 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.
The Chief Judge went on to explain that ultimately, the fundamental basis for an owner or occupier’s liability is that party’s superior knowledge of the hazard encountered by the plaintiff. In other words, a plaintiff isn’t 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.
In granting summary judgment, the trial court found that the plaintiff offered no evidence of superior knowledge on the part of the defendant, and the panel agreed. The imperfections in the defendant’s parking lot constituted a “static condition,” one that doesn’t change and is dangerous only if someone fails to see it and walks into it.
If the hazard created by a static condition is open and obvious, therefore, an invitee can’t recover for damages purportedly caused by the hazard.
When nothing obstructs an invitee’s ability to see a static condition, an owner/occupier may safely assume that the invitee will see it and will realize any associated risks. In other words, where the condition is apparent, the invitee’s failure to look “will not relieve her from the responsibility for her misadventure”, the judge wrote.
The evidence showed that the allegedly hazardous imperfections in the defendant’s parking lot were apparent to someone looking and “paying attention.” Nothing distracted the plaintiff as she walked back to her car after speaking with friends. She didn’t contend that the hole or raised area on which she tripped was obscured or difficult to see at the time of her fall. Rather, she simply wasn’t looking.
An invitee “is not entitled to an absolutely smooth or level way of travel,” the judge wrote, quoting an earlier decision. And it’s common knowledge that small cracks, holes, and uneven spots often develop in pavement.
Judge Mercier found that the evidence established that the imperfections in the defendant parking lot were open and obvious. Under these circumstances, the plaintiff “is deemed to have had equal knowledge of the alleged hazard, and [she] cannot recover for injuries caused by it, the Court of Appeals concluded. The judgment was affirmed. Wells v. Khan Shell, LLC, 2025 Ga. App. LEXIS 552, 2025 LX 586267, 2025 WL 3225081 (Ga. App. November 19, 2025).
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